Monroe v. Arthur

• Decision Date: 23 June 1900
• Citation: 126 Ala. 362,28 So. 476
• Parties: MONROE v. ARTHUR.
• Court: Alabama Supreme Court

28 So. 476

126 Ala. 362

MONROE v. ARTHUR.

Supreme Court of Alabama

June 23, 1900

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by John Arthur against Archie Monroe. From a judgment for plaintiff, defendant appeals. Reversed.

E. J Smyer, for appellant.

Chas B. Powell, for appellee.

McCLELLAN C.J.

This is a statutory real action prosecuted by Arthur against Monroe. Defendant claimed title under a mortgage purporting to have been executed by plaintiff and his wife to the Pratt Mines Building & Loan Association. The land, at the time this paper was signed, acknowledged, and delivered, constituted Arthur's homestead. The separate acknowledgment of Mrs Arthur, of her signature, etc., to the conveyance, was taken by T. H. Moore, a notary public, who was then a stockholder in, and the secretary and treasurer of, the grantee corporation. At the trial the court held that this mortgage was invalid, for that the separate acknowledgment of the wife was made before and taken by a person having such interest in the conveyance as disqualified him to perform and discharge the judicial act he assumed to perform and discharge, and excluded the instrument as evidence in the cause, and thereupon plaintiff had judgment. That the conveyance is invalid, and to be so declared upon proper attack, has been determined by this court in the case of Hayes v Association, 26 So. 527, and the only question now presented is whether it should have been held void upon the collateral attack made on it in this action. We do not think it should have been so held. The deed was not void on its face, but only because of extrinsic facts resting in parol. These extrinsic facts did not involve any matter for which the execution of the paper could be assailed collaterally, as a mere incident to a proceeding prosecuted for a purpose other than the cancellation of the instrument. In such case the infirmities inhering in the execution of the mortgage can be shown only upon a direct attack on its validity, by which is intended some proceeding begun and prosecuted for the express purpose of having the conveyance adjudged void and canceled,-as, for instance, a bill in chancery setting up the facts as to the notary's incapacity, and praying that the alleged deed be decreed to be surrendered up and canceled etc.; and, until cancellation is decreed in such or other direct proceeding, the conveyance will be treated by...