Morris v. Linton
| Decision Date | 20 March 1901 |
| Docket Number | 9,317 |
| Parties | LYDIA T. MORRIS, APPELLEE, v. PHEBE R. E. E. LINTON ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county. Heard below before KEYSOR, J. Affirmed.
AFFIRMED.
John T Cathers, W. A. Redick and E. W. Simeral, for appellants.
George B. Lake and Hamilton & Maxwell, contra.
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, chapter 73, Compiled Statutes, 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, 34 L.Ed. 222, 10 S.Ct. 854; Mott v. Smith, 16 Cal. 533; Evans v. Lee, 11 Nev. 194; Moore v. Miller, 147 Pa. 378, 23 A. 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 (Council Bluffs Sav. 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; Linton v. Cooper, 53 Neb. 400, 73 N.W. 731; Delano v. Jacoby, 96 Cal. 275, 31 P. 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, Conflict of Laws, 424; Baum v. Birchall, 150 Pa. 164, 24 A. 620; Richardson v. De Giverville, 107 Mo. 422, 17 S.W. 974; Swank v. Hufnagle, 111 Ind. 453, 12 N.E. 303; Sell v. Miller, 11 Ohio St. 331; Post v. First Nat. Bank, 138 Ill. 559, 28 N.E. 978. Section 42, chapter 73, Compiled Statutes, 1889, declares: "Any real estate belonging to a married woman, may be managed, controlled, leased, devised, or conveyed by her by deed, or by will, in the same manner and with like effect as if she were single." A single woman may, of course, incumber or convey her lands in this state by the act of a duly authorized agent; and so, under the statute quoted, may a married woman. Benschoter v. Lalk, 24 Neb. 251, 38 N.W....
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