Lucas v. Boyd

• Decision Date: 30 June 1908
• Parties: LUCAS v. BOYD.
• Court: Alabama Supreme Court

47 So. 209

156 Ala. 427

LUCAS v. BOYD.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Marengo County; J. M. Miller, Special Judge.

Ejectment by Laura Jones Lucas against Bethenia Boyd. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The plaintiff, in order to show title to the property, offered in evidence a deed the acknowledgment of which was taken before James F. Griffin, mayor and ex officio a justice of the peace. The acknowledgment was in the usual Code form, and headed, "The State of Alabama, Marengo County," not stating the city or town where taken. The deed was signed by mark and attested by J. F. Griffin. Objection was interposed to the deed on the grounds that the certificate of acknowledgment did not show that the person who took the acknowledgment was authorized by law to take acknowledgment and that the acknowledgment did not show on its face what town or city Griffin was mayor of. The court sustained the objection and refused to admit the deed.

Taylor & Hearin, for appellant.

W. F Herbert, for appellee.

TYSON C.J.

The first question presented by the record is, assuming that the officer taking the acknowledgment was, at the time it was taken, mayor of the city of Demopolis, whether under the authority conferred upon him by the charter of that city he was authorized to take acknowledgments to conveyances. The statute conferred authority to take acknowledgments and proofs of conveyances upon justices of the peace. Section 1799, Code of 1886. By the said charter it was provided "that the mayor * * * is vested ex officio with and may exercise in said city all the powers and authority of justices of the peace and shall be liable * * * to the same penalties and restrictions as are imposed by law on such officers." In Goree v. Wadsworth, 91 Ala. 416 8 So. 712, the power of attorney was acknowledged before an officer in the state of Texas, who styled himself "J. P and Ex Officio Notary Public." Under the statute authorizing the taking of acknowledgments in another state no authority was conferred upon a justice of the peace to take them, but was conferred upon notaries public. This court held the acknowledgment sufficient and valid. On principle, that holding controls the decision of this question, and determines its solution in favor of the right of the mayor, as ex officio justice of the peace, to certify the acknowledgment to the deed offered to be introduced in evidence in this case. This holding is fully sustained by cases in other jurisdictions, as will be readily seen by reference to the following: Touchard v. Crow, 20 Cal. 150, 81 Am. Dec. 108; Wilson v. Simpson, 68 Tex. 306, 4 S.W. 839; Dennistoun v. Potts, 26 Miss. 13; Middlebury College v. Cheney, 1 Vt. 336; Welles v. Cole, 6 Grat. (Va.) 645.

The next question presented is whether the certificate of acknowledgment to the deed is invalid because of the omission to state the name of the city or town of which the officer purporting to take it was mayor. It will be observed that the form prescribed for the acknowledgment (section 1802, Code of 1886; section 3361, Code of 1907) does not require the officer taking it to certify to his official character or to his territorial jurisdiction. In Leech v. Karthaus. 141 Ala. 509, 37 So. 696, it was held that a certificate of acknowledgment attached to a deed which omitted to state the official character of the officer in its body, but which was signed by the certifying officer, who designated his...