Northwestern & Pacific Hypotheek Bank v. Rauch

• Decision Date: 14 January 1898
• Citation: 5 Idaho 752,51 P. 764
• Parties: NORTHWESTERN AND PACIFIC HYPOTHEEK BANK v. RAUCH
• Court: Idaho Supreme Court

51 P. 764

5 Idaho 752

NORTHWESTERN AND PACIFIC HYPOTHEEK BANK v. RAUCH

Supreme Court of Idaho

January 14, 1898

CERTIFICATE OF ACKNOWLEDGMENT-SUBSTANTIAL COMPLIANCE WITH STATUTE ONLY REQUIRED.-A substantial and not a literal compliance with the statute in the certificate of acknowledgment to a conveyance of real estate by a married woman is all the law requires.

FORECLOSURE OF MORTGAGE-TO DISMISS THE ACTION UPON MOTION HELD ERROR.-Plaintiff commenced suit to foreclose mortgage making the mortgagors, and two others, the latter being subsequent purchasers to the mortgage, parties. The last two parties were in default. The mortgagors answered, denying the execution and the acknowledgment of the mortgage and asking affirmative relief. The proofs being in plaintiff moved to dismiss the action as to the mortgagors, waiving any claim for a deficiency judgment which motion was granted by the court. Held, that the action of the court was error.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with instructions.

George W. Goode, for Appellants.

The certificate of acknowledgment is not in substantial compliance with sections 2921, 2922 and 2958 of the code. ( Central Land Co. v. Laidley, 32 W.Va. 134, 25 Am St. Rep. 797, 9 S.E. 61; 1 Am. & Eng. Ency. of Law, 2d ed 546, 514, and notes, 512 and note 2; Berry v. Donly, 26 Tex. 746; 1 Am. & Eng. Ency. of Law, 1st ed., 149, and note 2; Tolman v. Smith, 74 Cal. 345, 16 P. 189; Leonis v. Lazzarovich, 55 Cal. 55; note to Jordan v. Corey, 52 Am. Dec. 519; Mason v Brock, 12 Ill. 273, 52 Am. Dec. 490; Jackson v. Torrence, 83 Cal. 521, 23 P. 695.) Nothing will be presumed in favor of a certificate; it must state all the statutory requirements. (Jacoway v. Gault, 20 Ark. 190, 73 Am. Dec. 494; McDaniel v. Needham, 61 Tex. 269; Sutton v. Pollard, 13 Ky. Law Rep. 85, 16 S.W. 126; Wetmore v. Laird, 5 Biss. (U.S.) 161, F. Cas. No. 17,467.) The court granted plaintiff's motion and overruled appellants' objection in dismissing appellants from the case. There can be no dismissal except that authorized by statute. The statute is code, section 4354, subdivision 1. (6 Am. & Eng. Ency. of Pl. & Pr. 842, note 4; Hume v. Woodruff, 26 Or. 373, 38 P. 191, and cases cited therein; Bettis v. Schreiber, 31 Minn. 329, 17 N.W. 863; Smith v. Sioux City etc. R. R. Co., 15 Neb. 584, 19 N.W. 638; Chicago etc. R. R. Co. v. Richardson, 28 Neb. 118, 44 N.W. 103; Byrd v. Blessing, 11 Ohio St. 362; Aultman v. Reams, 9 Neb. 487, 4 N.W. 81; State v. Rost, 48 La. Ann. 455, 19 South 256; Currie v. Southern P. Co., 23 Or. 400, 31 P. 963; Black's Law Dictionary, 1188.) The appellants in their answer sought affirmative relief, to wit: The cancellation of the mortgage as a cloud on the title and for $ 300 damages; therefore the plaintiff could not dismiss the action as to the appellants without their consent. ( Clark v. Hundley, 65 Cal. 96, 3 P. 131; Mott v. Mott, 82 Cal. 413, 22 P. 1140; People v. Loewy, 29 Cal. 214; Thompson v. Spraig, 66 Cal. 350, 5 P. 506; Chicago etc. Ry. Co. v. Union Rolling Mill Co., 109 U.S. 715, 3 S.Ct. 594; 6 Am. & Eng. Ency. of Pl. & Pr. 848; Akard v. Western Mortgage etc. Co. (Tex.), 34 S.W. 139.)

Forney, Smith & Moore, for Respondent.

The certificate of the notary of Margaret E. Rauch's acknowledgment of the execution of the mortgage is sufficient, even if the property was the separate property of Margaret E. Rauch at that time. (Rev. Stats., secs. 4, 2498-2960; Schley v. Pullman Palace Car Co., 120 U.S. 575, 7 S.Ct. 730; Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267; Shaw v. Shaw, 15 Ky. Law Rep. 592, 24 S.W. 630; Griffin v. Griffin, 125 Ill. 430, 17 N.E. 783.) The uncorroborated testimony of the grantors is not sufficient to overcome the evidence offered by the officer's certificate of the fact of acknowledgment of a conveyance of real property. (Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212; Johnson v. Van Velsor, 43 Mich. 208, 5 N.W. 265; Morrison v. Porter, 35 Minn. 425, 59 Am. Rep. 331, 29 N.W. 54; Pierce v. Fegans, 39 F. 587; Blackman v. Hawkes, 89 Ill. 512.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

On the twenty-first day of January, 1893, the defendants, A. Rauch and Margaret E. Rauch, his wife, executed and delivered to the plaintiff, through its agent at Moscow, Latah county, Idaho two promissory notes, for the sum of $ 500 each. Both of said notes bore interest at the rate of ten per cent per annum, and in each was a provision for the payment of an attorney's fee of fifty dollars in case of suit thereon. At the same time said defendants executed and delivered to plaintiff, through its said agent, and for the purpose of securing the payment of said notes, a mortgage upon certain real estate, situated in Latah county, state of Idaho for a like sum. Default having been made in the conditions of said mortgage, this suit was instituted to foreclose the same. The defendants, J. D. Hunter and Mollie Hunter, his wife, were joined as subsequent purchasers or encumbrancers, and made default. The answer of the defendants, A. Rauch and Margaret E. Rauch, denies the execution of the mortgages, denies the acknowledgment of the execution by either of them, and denies the ownership by plaintiff of the mortgage. The answer also alleges that the real estate included in and encumbered by said mortgage was the separate property of the said Margaret E. Rauch. The execution of the promissory notes was admitted by defendants Rauch. Defendants also allege that said mortgage casts a cloud upon the title to said land described therein, and that by reason thereof the defendants have been unable to sell or dispose of the same, and have suffered damage in consequence to the amount of $ 300, and pray judgment for that amount, and also for a decree declaring said mortgage null and void. The case was tried before the court without a jury, and judgment rendered in favor of plaintiff for the foreclosure of the mortgage, from which judgment, and also from an order and judgment of said district court dismissing said action as to said defendants, A. Rauch and Margaret E. Rauch, this appeal is taken.

The first error assigned by appellants is the admission in evidence of a deed from defendant Rauch to J. D. Hunter, executed on the 8th of February, 1894. Defendants' objection to the introduction of this deed was based upon the ground that it was "incompetent, irrelevant and immaterial." We think that defendants' objection was well taken, and should have been allowed. We do not see in what the relevancy, materiality or competency of this evidence consists. Plaintiff had made Hunter and his wife parties defendant in his action, and they had both defaulted. How, then, was it essential to the establishing of plaintiff's case that title should be shown in Hunter? The default of Hunter admitted that he claimed an interest in the land, but that it was subject to the mortgage of plaintiff. The admission of this evidence was error.

As appellants apparently do not insist upon the second error assigned, we pass it; simply saying that we do not consider it well taken. We think the evidence of Grierson was properly admitted.

The third assignment of error is based upon the admission in evidence of the mortgage sued upon, for the reason that the certificate of acknowledgment thereon was not in substantial compliance with sections 2921, 2922 and 2960 of the code of this state. Said certificate is as follows:

"I, L. F. Williams, a notary public in and for the said county and state, do hereby certify that on this thirtieth day of January, 1893, personally appeared before me A. Rauch and Margaret E. Rauch, his wife, to me known to be the individuals described in, and who executed, the within instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. And I further certify that I did fully apprise the said Margaret E. Rauch, wife of the said A. Rauch, of the contents of said instrument, and of her rights thereto, and the effect of signing the same, and that she did then, freely and voluntarily, separate and apart from her said husband, sign and acknowledge said instrument. Given under my hand and official seal this thirtieth day of January, 1893.

"[Seal]

L. F. WILLIAMS,

Notary Public."

We think this certificate is in substantial compliance with the provisions of our statutes. Section 2960 of the Revised Statutes of Idaho is as follows:

"Territory of Idaho County of , ss.

"On this day of , in the year of , before me [here insert the name and quality of the officer] personally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the within instrument, described as a married woman, and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same and that she does not wish to retract such execution."

The intent and purpose of the statute are to protect the rights of a married woman from the dictation or domination of the marital companion. The end sought by the law is not to enable married women, either at the suggestion or dictation of their husbands, to perpetrate a fraud, by seeking to avoid, upon a mere technicality, what was, at the time it was made, a fair and honest transaction, the benefits of which have been received and enjoyed, either directly or indirectly, by the party seeking to avoid it. The statute does not require a literal, but a substantial, compliance therewith. If the certificate shows the acknowledgment to have been the free and voluntary act of the...