McIntyre v. White

• Decision Date: 29 November 1899
• Citation: 124 Ala. 177,26 So. 937
• Parties: MCINTYRE v. WHITE.
• Court: Alabama Supreme Court

26 So. 937

124 Ala. 177

MCINTYRE v. WHITE.

Supreme Court of Alabama

November 29, 1899

Appeal from circuit court, Lauderdale county; Thomas R. Roulhac Judge.

Action by Martha E. White against John W. McIntyre. From a judgment for plaintiff, defendant appeals. Reversed.

This was a statutory action of ejectment, brought by the appellee Martha E. White, against the appellant, John W. McIntyre, to recover certain lands specifically described in the complaint.

In February, 1893, Miles White owned the land sued for. It was his homestead. On that date, he and his wife, the appellee executed a mortgage on said homestead to C. Smith, to secure a loan of money by Smith to White. White died in 1893 leaving no minor children and owning no other land. No administration was ever taken on his estate. The debt secured not having been paid, the mortgage, after the maturity of the debt, was according to its terms duly foreclosed, and appellant, defendant below, became the purchaser at the foreclosure sale, and received a deed properly executed from the mortgagee.

The original mortgage was lost, and on the trial, its record in the probate office, and the acknowledgment of the same, were read in evidence by defendant. In the record of the plaintiff's acknowledgment of said mortgage, in that part of the statutory form for the acknowledgment of the wife when conveying the homestead, reading "that she signed the same of her own free will and accord, and without fear constraint or threats of her husband," in place of the word "threats" the word "persuasion" was employed, thereby vitiating the mortgage, as contended, if there was no mistake in the original acknowledgment, and the word "persuasion" was used therein for the word "threats."

It appeared in evidence that as far back as 1888, there were many mortgages to be recorded in the probate office of Lauderdale county, and in order to keep up with the recording of these instruments, the then probate judge had a record book printed leaving appropriate blanks for the date, parties, description of property, etc., and had also the appropriate acknowledgments of such instruments printed, following each mortgage; each blank in the book with these acknowledgments was identical. He also caused printed blank forms of mortgages, together with the blank acknowledgments, corresponding precisely with those in the printed record book, to be printed and distributed to parties desiring them, so that, when a mortgage was executed and brought to the office for record, all there was to do, was to fill in the blanks in the record book, to correspond with the blanks as filled in the executed mortgages, thus facilitating the rapid, easy and apparently correct recording of mortgages. In these mortgages, given out to parties desiring them, and in the printed forms of them to be filled, as appearing in said record book, there was the same mistake in the acknowledgment of the wife separate and apart from her husband as prescribed by statute, to convey the homestead, namely, the word "persuasion" appeared in each, in the place of the word "threats," and the acknowledging officer, if he used the form he found printed on the mortgage, without correction, certified the acknowledgment of the wife, with this alleged vitiating mistake in it, and the mortgages thus executed and filed for record were carried on the record with the same mistake in them.

The mortgage in question was executed, as above stated, on the 28th February, 1893. The witness, Rice, for defendant, who was the clerk of the probate judge whose term of office expired in November, 1892, testified that in the spring of 1889, he discovered the said mistake in the record of acknowledgment of mortgages; that they had then given out and used up most of the mortgages in which the error appeared; that those remaining on hand he corrected with a pen, by erasing the word "persuasion" and writing for it the word "threats," and long before the then judge went out of office, all these mortgages had been used up, and a lot of others were printed in which said mistake was corrected, and the only form of mortgage then in office was the one with the form of acknowledgment as required by statute. The mortgagee, Smith, for defendant, testified that the mortgage he took from White and wife, was made out on a blank procured from the office of the judge of probate, just before the mortgage was given-27th February, 1893.

McClure for defendant testified that he was the clerk of the probate judge since November, 1892; that he recorded the mortgage and at the time, did not know there was any error in the separate acknowledgment, but that afterwards, and after the book was filled up, he learned that in the recorded acknowledgments of the wife in the record book, the word "persuasion" for the word "threats" appeared; that in making the record of this mortgage as well as other mortgages he did not compare the printed parts of the mortgage with the printed parts of said book-he only went far enough to see that the mortgage was on the printed form from the probate office, and supposed that the printing in the mortgage and that in the book corresponded; that no blank mortgages had been given out of the office since he went in, that corresponded with the form in the book, though occasionally-in one or two instances so far as he knew-a mortgage had been filed for record on a form that did correspond with the...