Myers v. Eby

• Citation: 33 Idaho 266,193 P. 77
• Parties: CHARLES S. MYERS, Respondent, v. MARY A. EBY (Formerly MARY A. BERTHOLF), as Administratrix of the Estate of JOHN W. BERTHOLF, Deceased; MARY A. EBY (Formerly MARY A. BERTHOLF), and C. C. LINEHAN, Appellants
• Decision Date: 01 October 1920
• Court: United States State Supreme Court of Idaho

193 P. 77

33 Idaho 266

CHARLES S. MYERS, Respondent, v. MARY A. EBY (Formerly MARY A. BERTHOLF), as Administratrix of the Estate of JOHN W. BERTHOLF, Deceased; MARY A. EBY (Formerly MARY A. BERTHOLF), and C. C. LINEHAN, Appellants

Supreme Court of Idaho

October 1, 1920

ACKNOWLEDGMENTS-TAKEN THROUGH TELEPHONE.

1. The statute of Idaho requires that a person acknowledging the execution of an instrument shall be personally present before the officer who takes and certifies such acknowledgment.

2. Where the personal presence of a party before an officer is a requirement of the statute, an acknowledgment made by a person not in the presence of the officer, by means of the telephone, is void.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to foreclose mortgage and to cancel release thereof. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellants.

Orland & Lee, for Appellants.

While the respondent or both parties may have been mistaken as to the legality of this mortgage by the administrator, through ignorance of the law, there was no mistake as to the effect of the release, and the whole transaction was carried out in exact accordance with the agreement of the parties, and a court of equity will not undo what the parties have deliberately done. (Pitcher v. Hennessey, 48 N.Y 415; Hunt v. Rousmanier, 1 Pet. (U. S.) 1, 7 L.Ed 27; Hunt v. Rousmanier's Admrs., 8 Wheat. (U S.) 174, 5 L.Ed. 589; Utermehle v. Norment, 197 U.S. 40, 52, 3 Ann. Cas. 520, 25 S.Ct. 291, 49 L.Ed. 655, 660, see, also, Rose's U.S. Notes; Pierson v. Armstrong, 1 Iowa 282, 63 Am. Dec. 440; Garwood v. Eldridge's Admrs. & Heirs, 2 N.J. Eq. 145, 34 Am. Dec. 195, 10 R. C. L. 308; Roach v. Francisco, 138 Tenn. 357, 197 S.W. 1099, 1 A. L. R. 1074.)

The acknowledgment of a conveyance of real estate over or by means of a telephone conversation, and not in the presence of the officer taking the acknowledgment, is in violation of the intent and spirit of the law of the state of Idaho, and, if permitted, creates an opportunity for the commission of the grossest kind of fraud, with very little liability of detection of the perpetrator. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Webster v. Hurt, 123 Tenn. 508, Ann. Cas. 1912C, 329, 130 S.W. 842, 30 L. R. A., N. S., 358; Gilpin v. Savage, 201 N.Y. 167, Ann. Cas. 1912A, 861, 94 N.E. 656, 34 L. R. A., N. S., 417; Livingston v. Kettelle, 1 Gilm. (Ill.) 116, 41 Am. Dec. 166; Sullivan v. First Nat. Bank, 37 Tex. Civ. 228, 83 S.W. 421; Barrett v. Magner, 105 Minn. 118, 127 Am. St. 531, 117 N.W. 245; Young v. Seattle Transfer Co., 33 Wash. 225, 99 Am. St. 942, 74 P. 375, 63 L. R. A. 988; State Nat. Bank v. Mee, 39 Okla. 775, 136 P. 758; Kangley v. Rogers, 85 Wash. 250, 147 P. 898; Le Mesnager v. Hamilton, 101 Cal. 532, 40 Am. St. 81, 35 P. 1054; Northwestern etc. Bank v. Rauch, 5 Idaho 752, 51 P. 764.)

Randall & Becker, for Respondent.

In the absence of fraud, the fact that one of the mortgagors communicated her acknowledgement of the mortgage to the officer over the telephone will not invalidate the instrument, the certificate being regular on its face. (1 R. C. L. 277; Banning v. Banning, 80 Cal. 271, 13 Am. St. 156, 22 P. 210; note, 127 Am. St. 554; note, Ann. Cas. 1912C, 330; 1 Devlin on Deeds, sec. 529a; 1 Jones on Mortgages, sec. 500; De Arnaz v. Escandon, 59 Cal. 486, 489.)

Under the facts of this case, the appellant, Mary A. Eby, is estopped from denying the validity of the original mortgage in question. (Grice v. Woodworth, 10 Idaho 459, 109 Am. St. 214, 80 P. 912, 69 L. R. A. 584.)

The rule "Ignorantia juris non excusat" is confined to mistakes as to the general rules of law, which everyone is supposed to know, and has no application to mistakes as to private legal rights and interests, which are regarded as analogous to mistakes of fact. (4 R. C. L. 509; 6 R. C. L. 630; Cooper v. Phibbs, L. R. 2 H. L. 149, 22 Eng. Rul. Cas. 870; Morgan v. Bell, 3 Wash. 554, 28 P. 925, 16 L. R. A. 614; Renard v. Clink, 91 Mich. 1, 30 Am. St. 458, and note, 51 N.W. 692; Reggio v. Warren, 207 Mass. 525, 20 Ann. Cas. 1244, 93 N.E. 805, 32 L. R. A., N. S., 340; Bottorff v. Lewis, 121 Iowa 27, 95 N.W. 262; 9 C. J. 1169.)

The rule has no application where the mistake of law is mutually shared by all parties to the transaction. (10 R. C. L., pp. 310 and 311; 9 C. J. 1169; Champlin v. Laytin, 1 Edw. Ch. (N. Y.) 467, 28 L. R. A., N. S., 785, note; 16 Cyc. 75.)

Or where the enforcement of the rule would result in an unconscionable advantage to the party relying upon it. (4 R. C. L. 508; 6 R. C. L. 629; 19 R. C. L. 475.)

Or upon the general theory that the main object of equity jurisdiction should be to effectuate the intention of the parties. (28 L. R. A., N. S., 785, note; Remington v. Higgins, 54 Cal. 620; Hammond v. Barker, 61 N.H. 53; 10 R. C. L. 307.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

This action was instituted by respondent Myers for the foreclosure of a mortgage bearing date of April 1, 1911, executed by John W. Bertholf and Mary A. Bertholf, his wife, covering community real estate occupied by the mortgagors as a residence. After the death of John W. Bertholf, Mary A. Bertholf was appointed administratrix of his estate. Respondent in due time presented his claim against the estate, and it was allowed by the administratrix and the probate court. The note not having been paid, on April 18, 1914, respondent and the administratrix met in the office of the probate judge and agreed that a new note and mortgage should be executed by the administratrix, extending the time of payment, in case such new note and mortgage could be given. They were advised by the probate judge that the administratrix had power to execute the new note and mortgage, and thereupon a petition was filed with the probate court by the administratrix for authority to execute the same, and an order granting such authority was made by the probate judge. At the time this order was made there was no statute in this state authorizing the administratrix to mortgage the property of the estate, upon an order of the probate court or otherwise. Upon delivery of the last-mentioned note and mortgage, respondent delivered to the administratrix the first note and mortgage, and executed and delivered to her a satisfaction thereof. The first note and mortgage were thereupon destroyed. Mary A. Bertholf thereafter became the wife of Sam Eby.

Respondent bases his claim of right to foreclose the mortgage of April 1, 1911, upon the ground that the mortgage executed by the administratrix on April 18, 1914, was void, and that the same was delivered by the administratrix and accepted by respondent through mutual mistake.

Judgment was entered for respondent and Mrs. Eby and her son-in-law, C. C. Linehan, who was made a party to the action, appealed.

Appellant Eby alleged in her answer that the mortgage of April 1, 1911, was not acknowledged by her, and it is urged that since the property mortgaged was community property, occupied by the mortgagors as a residence, the mortgage was void. In our judgment a consideration of this contention of appellants will dispose of the case.

Rev. Codes, sec. 3106, which was in effect at the time this mortgage was given, is as follows:

"No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it was so conveyed or encumbered, and it be acknowledged by the wife as provided in Chap. 3 of this Title."

There was appended to the mortgage a certificate of acknowledgment executed by F. H. Judd, justice of the peace, bearing date April 1, 1911, which recites that John W. Bertholf and Mary A. Bertholf appeared before him and acknowledged that they signed and sealed the mortgage as their free and voluntary act. At the trial of the case, Mrs. Eby testified that she never appeared before the justice of the peace at any time and acknowledged the execution of the mortgage. Respondent proved by the justice of the peace who executed the certificate that the acknowledgment of Mary A. Bertholf was taken through the telephone. The testimony of the justice of the peace was not offered for the purpose of impeaching any of the facts recited by him in his official certificate, but was offered in rebuttal in support thereof by the only party who could have objected to an impeachment of the certificate of acknowledgment. This action was equivalent to an admission on the part of respondent that the acknowledgment was taken by means of the telephone, and not otherwise, and both the respondent and the court are bound thereby. This situation renders inapplicable to this case the holdings of this court in the cases of First Nat. Bank v. Glenn, 10 Idaho 224, 109 Am. St. 204, 77 P. 623; ...