Mather v. Jarel

• Decision Date: 11 January 1888
• Citation: 33 F. 366
• Parties: MATHER v.JAREL et al.
• Court: U.S. District Court — Western District of Missouri

33 F. 366

MATHER v.JAREL et al.

United States Circuit Court, W.D. Missouri, Western Division.

January 11, 1888

Botsford & Williams, for complainant.

Harkless & Burr, for defendants.

THAYER J.

This is a bill in equity to foreclose a mortgage on lands situated in Barton county, Missouri. The mortgaged premises belong to the defendant Mrs. Elizabeth T. Jarel, who is a married woman and the wife of her co-defendant, John S. Jarel. Mrs. Jarel defends the action on the ground that she neither signed nor acknowledged the mortgage in question. There is no other defense to the bill by either defendant. The mortgage purports to have been signed by Mrs. Jarel by making her mark, and her signature thereto is attested by the justice before whom the mortgage purports to have been acknowledged. The certificate of acknowledgment is in due form of law and by the proper officer, but the contention is that the certificate is false.

In some states (as is well known) a certificate of acknowledgment to a deed or mortgage can only be impeached on the ground of fraud; unless fraud is shown the certificate is conclusive of the facts it asserts. Russell v. Theological Union, 73 Ill. 337; Johnston v. Wallace, 53 Miss. 338; and see note to Paxton v. Marshall, 18 F. 365, where the cases are collated. In other jurisdictions (and notably in Missouri) a certificate of acknowledgment is regarded as prima facie evidence of the matters therein stated, and it may be contradicted and overthrown, although no fraud is established. Wannell v. Kem, 57 Mo. 478; Steffen v. Bauer, 70 Mo. 399. But even in those states where a certificate of acknowledgment may be overcome without proof of fraud, the rule is that the certificate is proof of a high grade of the facts it asserts, and that it cannot be overthrown except by proof that is clear, cogent, and convincing. Bohan v. Casey, 5 Mo.App. 101; Biggers v. Building Co., 9 Mo.App. 210. And such is also the rule announced by the supreme court of the United States in Insurance Co. Nelson, 103 U.S. 548; Young v Duvall, 109 U.S. 573, 3 S.Ct. 415. A less stringent rule than the one last stated would render titles to real estate very insecure; therefore, public policy demands that the foregoing rule, as to the kind of proof required to overcome a certificate of acknowledgment, should be inflexibly enforced.

In the present case, I have made a critical examination of the testimony relied upon by the defendant to overcome the certificate of acknowledgment, and while I consider myself bound by the Missouri rule on the subject, I have no hesitation in holding that it is insufficient to invalidate the certificate. I might add that there are several circumstances which lead me to regard the testimony in question with great distrust. The mortgage appears to have been executed and acknowledged in the presence of but four persons, namely, the two defendants (Mr. and Mrs. Jarel) and their daughter, then aged 10 years, and the justice of the peace who attested Mrs. Jarel's signature and took her acknowledgment. The justice died about 10 months subsequent to the execution of the mortgage, and it was more than a year after his death before either of the defendants said or did anything (at least in public) to discredit the acknowledgments. As the case stands there is the certificate of the justice in due form on the one hand, which was not questioned until after his death, and on the other, the testimony of Mrs. Jarel, her husband, and young daughter, all of whom are directly interested in impeaching the...