Moore v. Bragg

• Decision Date: 19 March 1925
• Docket Number: 8 Div. 660
• Citation: 103 So. 452,212 Ala. 481
• Parties: MOORE et al. v. BRAGG.
• Court: Alabama Supreme Court

103 So. 452

212 Ala. 481

MOORE et al. v. BRAGG.

8 Div. 660

Supreme Court of Alabama

March 19, 1925

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

Bill in equity by E.O. Bragg against Nora A. Moore and others, with cross-bills by defendants Moore and another. From decree for complainant, cross-complainants appeal. Affirmed.

When instrument and parties are present before officer, and execution of instrument there completed by them, his certificate is conclusive of all facts required to be certified.

The bill alleges that on November 22, 1921, W.A. Markham, being indebted to complainant, executed his note to complainant for $3,890, and as security for the payment of the note, said Markham and his wife executed to complainant a mortgage on certain described lands; that the note was due and payable on December 1, 1922, and that said Markham defaulted in the payment thereof. It is further alleged that, prior to the execution of the mortgage to complainant, respondent executed a mortgage to the Federal Land Bank of New Orleans, which mortgage is unpaid and is a first lien upon the land, and to which complainant's mortgage is subordinate. It is further alleged that after the execution of said two mortgages Markham and his wife, Lula Lee Markham, conveyed to respondent Nora A. Moore an undivided one-half interest in the land, and thereafter said Markham conveyed to his wife all his right, title, and interest in the land, so that said Nora A. Moore and Lula Lee Markham are now in possession and control of the premises, and that the title thereto is held by them subject to the mortgages referred to.

It is prayed that the indebtedness due complainant by W.A. Markham be declared to be in default, that a foreclosure of the mortgage to complainant be ordered for the satisfaction of such indebtedness, that the land be sold, subject to the mortgage to the Federal Land Bank, and that a decree be rendered in favor of complainant against W.A. Markham for any deficiency after application of the proceeds of sale to the indebtedness due complainant.

The respondents, by answer and cross-bills, set up that at the time of the execution of the mortgage by W.A. Markham to complainant, the premises purported to be conveyed thereby were the homestead of said Markham and his wife, who were residing thereon as such homestead; that said mortgage was not acknowledged by the wife, separate and apart from the husband, and is therefore null and void; and the cross-complainants pray that this mortgage be canceled as a cloud upon their title.

By final decree the court ascertained the amount due by W.A Markham to complainant, Bragg, and adjudged that, on failure of said Markham or Lula Lee Markham and Nora A. Moore to pay such indebtedness within the time stated, the lands be sold. From this decree the appeal is taken.

R.E. Smith and R.C. Brickell, both of Huntsville, for appellants.

Watts & White, of Huntsville, for appellee.

BOULDIN J.

The separate acknowledgment of the wife to a conveyance of the homestead containing all the recitals of the statutory form (Code 1923, §§ 6845, 7883), is not rendered invalid because combined with the general acknowledgment of the husband and wife in one certificate. Russell v. Holman, 156 Ala. 433, 47 So. 205.

A literal compliance with the statutory form, while always to be favored, is not exacted. If each fact required to be shown by the certificate is certified in language clearly in substance and effect the same as the statutory form, it is sufficient. Gates v. Hester, 81 Ala. 357, 1 So. 848; Frederick v. Wilcox, 119 Ala. 355, 24 So. 582, 72 Am.St.Rep. 925; Davis v. Gerson, 153 Ala. 503, 45 So. 587; Middlebrooks v. Stephens, 148 Ala. 230, 41 So. 735.

The alleged defects in the acknowledgment in this instance are in this clause: "Came before me the said Lula Lee Markham, known to me to be the wife of the within W.A. Markham." The statute uses the words "within named" in identifying the parties. The certificate is construed as a whole and in connection with the conveyance. "Said Lula Lee Markham," otherwise shown as the person who "executed" the conveyance, and who acknowledged that she "signed" the same, is thus identified with the same certainty as by the words "within named." "Within W.A. Markham" can mean none other than "within named W.A. Markham." The omission of the word "named" renders it less grammatical, but no less certain. The certificate of acknowledgment to complainant's mortgage was, therefore, sufficient.

Taking and certifying an acknowledgment to a conveyance of lands is a judicial act. When the instrument and the parties are present before the officer, and they there enter upon the business of completing the execution of the instrument by taking the acknowledgment, the certificate of the officer is conclusive of all the facts he is required by law to certify and cannot be impeached by parol testimony, except upon averment and proof of fraud to which the grantee was a...