Morris v. Linton

• Decision Date: 20 March 1901
• Citation: 85 N.W. 565,61 Neb. 537
• Parties: MORRIS v. LINTON ET AL.
• Court: Nebraska Supreme Court

61 Neb. 537

85 N.W. 565

MORRIS

v.LINTON ET AL.

Supreme Court of Nebraska.

March 20, 1901.

Syllabus by the Court.

1. Under section 6, c. 73, Comp. St. 1899, the word “consul” means any person invested by the national government with the functions of consul general, vice consul general, consul, or vice consul.

2. A mere irregularity in taking an acknowledgment does not invalidate it.

3. The certificate of an officer having authority to take acknowledgments cannot be impeached by showing merely that such officer's duty was irregularly performed.

4. A power of attorney, properly executed, is valid, though not acknowledged, except to the extent that it may authorize the conveyance of a family homestead.

5. The validity of a contract affecting real property is to be determined by the law of the place where the property is situate, and not by the law of the place where the contract was made.

6. A married woman may, through the act of a duly-authorized agent, incumber or convey her lands in this state in the same manner and with like effect as if she were single.

7. Power of attorney examined, and found to authorize the agent to mortgage the land of his principal.

8. Evidence examined, and found to support a finding that there was a consideration for the instrument in suit.

9. Whether a mortgagor is personally liable for the debt secured by the mortgage is a question that does not arise on an appeal from a decree of foreclosure.

Error to district court, Douglas county; Keysor, Judge.

Action by Lydia T. Morris against Phebe R. E. E. Linton and others. Judgment for plaintiff, and defendants appeal. Affirmed.John T. Cathers, W. A. Redick, and E. W. Simeral, for appellants.

Lake, Hamilton & Maxwell, for appellee.

SULLIVAN, J.

This is an appeal from a decree foreclosing a mortgage upon two fractional lots in the city of Omaha. Mrs. Linton, who resides with her husband in England, is the fee owner of the property. In 1891 she gave to John Borland Finlay a power of attorney authorizing him to sell, exchange, lease, or mortgage any real estate owned by her in this country or elsewhere. Acting under this authority, Finlay executed on behalf of his principal the mortgage now in question. The answer admits the execution of the power of attorney, but alleges that it was not acknowledged according to law. The acknowledgment was made before Hon. John C. New, consul general of the United States residing in London, and was, in our opinion, clearly valid. The word “consul,” as used in section 6, c. 73, Comp. St. 1899, is understood to mean any person invested by the national government with the functions of consul general, vice consul general, consul, or vice consul. In re Baiz, 135 U. S. 403, 10 Sup. Ct. 854, 34 L. Ed. 222;Mott v. Smith, 16 Cal. 552; Evans v. Lee, 11 Nev. 194; Moore v. Miller, 147 Pa. St. 378, 23 Atl. 601. The allegation that the power of attorney was not acknowledged according to law is nothing more than a denial of the legal sufficiency of the acknowledgment. It is the statement of a legal conclusion, and raises no issue. South Platte Land Co. v. City of Crete, 11 Neb. 344, 7 N. W. 859;Miller v. Hurford, 13 Neb. 13, 12 N. W. 832. A mere irregularity in taking an acknowledgment does not invalidate it. Bank v. Smith, 59 Neb. 90, 80 N. W. 270. And this certainly should be the rule where the party whose acknowledgment has been irregularly taken afterwards delivers the instrument acknowledged, as a complete and perfect instrument. Mrs. Linton appeared at the American consulate and signified a wish to acknowledge the power of attorney. The consul general had power to take her acknowledgment. He certified that he did take it. The instrument was then returned to her, and afterwards delivered by her to Finlay. Under these circumstances, she could not impeach the certificate of acknowledgment by the evidence offered for that purpose.

But, if there had been no attempt to acknowledge the power of attorney, it would not be, therefore, void. It would not in such case prove itself, nor be entitled to registry, but it would confer the same actual authority without an acknowledgment as with one. Burbank v. Ellis, 7 Neb. 156; Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489;Linton v. Cooper, 53 Neb. 400, 73 N. W. 731;Delano v. Jacoby, 96 Cal. 275, 31 Pac. 290. There is no merit in the contention that the power of attorney was invalid because not executed in accordance with the laws of England. The validity of a contract affecting real property is to be determined by the law of the place where the property is situate, and not by the law of the place where the contract was made. Story, Confl. Laws, 424; Baum v. Birchall, 150 Pa. St. 164, 24 Atl. 620;Richardson...