Penny v. British & Am. Mortg. Co.

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, C.J.
• Citation: Penny v. British & Am. Mortg. Co., 31 So. 96, 132 Ala. 357 (Ala. 1901)
• Decision Date: 20 December 1901
• Parties: PENNY v. BRITISH & AMERICAN MORTG. CO.

31 So. 96

132 Ala. 357

PENNY v. BRITISH & AMERICAN MORTG. CO.

Supreme Court of Alabama

December 20, 1901

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action by the British & American Mortgage Company against Ezekiel Penny. From a judgment for plaintiff, defendant appeals. Reversed.

Matthews & Whiteside and H. D. McCarty, for appellant.

Hood &amp Murphree, for appellee.

McCLELLAN C.J.

This is a statutory action in the nature of ejectment prosecuted by the mortgage company against Penny. Plaintiff deraigned title by mesne conveyances from the defendant. It claimed that Penny conveyed to G. W. Lancaster and Martha E. Lancaster who were husband and wife, and that said Lancasters conveyed to it by mortgage, which had been foreclosed, the company becoming the purchaser at foreclosure sale and receiving a deed thereunder. The defendant attacks the first and second links in this alleged chain of title. His contention is First, that the deed executed by him to the Lancasters was and is void because the land constituted his homestead, and the instrument was not executed nor attempted to be executed by his wife; and, second, that, assuming the validity of his deed to the Lancasters, and assuming further that they both joined in the mortgage to plaintiff, that mortgage was void for that at its date the land constituted their homestead, and the instrument was not acknowledged by her as required by the statute. And he contends further that, in any event, the plaintiff acquired through its mortgage only the undivided one-half interest of G. W. Lancaster in the land, for that Martha E. Lancaster joined therein only for the purpose of releasing and conveying her rights of dower and homestead. If either the first or the second position of defendant was supported on the trial beyond controversy, the defendant was entitled to the affirmative charge which he requested and which the court refused to give; and, if the third position was well taken and the others not, plaintiff was entitled to recover only the interest of G. W. Lancaster in the land sued for. We will consider these contentions of the defendant below as they have been presented in the brief for appellant here,--in the inverse order of their statement above.

Assuming for the discussion of this and the succeeding point that Penny's deed passed a good title, it is most clear, and is not disputed, that such title vested in G. W.

Lancaster and Martha E. Lancaster as tenants in common, each taking an undivided moiety in fee. The mortgage to the plaintiff company begins thus: "This indenture, made and entered into this, the 12th day of December, A. D. 1891, by and between George W. Lancaster, of the county of Cherokee and state of Alabama, party of the first part, and the British and American Mortgage Company, Limited, party of the second part, witnesseth: That whereas, the party of the first part has borrowed of the party of the second part three hundred dollars in gold, the receipt of which is hereby acknowledged, and has given the following described five installment notes," etc., describing said five notes, and reciting that five interest notes have also been given and describing them, etc., and thus proceeding: "And whereas, said party of the first part desires to secure said indebtedness, principal and interest, as said obligations respectively fall due: Now, therefore, in consideration of the premises and one dollar in hand paid, the party of the first part has granted, bargained, and sold, and by these presents does grant, bargain, sell, and convey, to the party of the second part," etc., "a certain tract or parcel of land," etc., describing the land: "To have and to hold," etc., "and the party of the first part represents and covenants," etc., setting out the usual covenants. Following the covenants is the only reference in the instrument, directly or indirectly, to Mrs. Lancaster. It is this: "And Martha E. Lancaster, wife of said G. W. Lancaster, of the first part, hereby expressly releases and conveys all rights of dower or homestead in and to said premises." Then follow the defeasance clause and divers stipulations between the company and G. W. Lancaster, but none with his wife; and the instrument concludes thus: "In witness whereof the said party of the first part has hereto set his hand and seal the date hereinbefore written," and under this appear the signatures of G. W. Lancaster and Martha Emeline Lancaster. It is too plain for argument or discussion, we think, that on the general principles reiterated and illustrated in the cases of Long v. Mostyn, 65 Ala. 543, Thompson v. Sheppard, 85 Ala. 611, 5 So. 334, Fite v. Kennamer, 90 Ala. 470, 7 So. 920, and Burrows v. Pickens (Ala.) 29 So. 694, this mortgage did not convey Mrs. Lancaster's undivided moiety in the land, but as to her was only operative to release her inchoate dower, and, if properly acknowledged, her homestead interest in that undivided half interest which belonged to her husband. There was evidence before the jury tending to show that at the time of the alleged execution of the mortgage to the plaintiff Lancaster and his wife were occupying the land as a homestead, its area being less than 160 acres, and its value less than $2,000. In view of this evidence, the giving of the affirmative charge for the plaintiff cannot be justified, unless the certificate of the separate acknowledgment of Martha E. Lancaster complies substantially with the provisions of section 2034 of the Code and with the form there prescribed. That certificate is as follows: "State of Alabama, Etowah County. I, John C. Pugh, notary public in and for said county, do hereby certify that on the eighth day of December, 1891, came before me the within-named Martha Emeline Lancaster, who, being examined separate and apart from her husband, touching her signature to the within mortgage, acknowledged that she signed the same of her own free will and accord, without fear, constraint, or threats on the part of her husband. In witness whereof I hereunto set my hand this 18th of Dec., 1891. John C. Pugh, Notary Public." There is a discrepancy in this certificate in respect of dates. The date of the mortgage is December 12, 1891. The notary certifies that the party came before him, etc., on "eighth day of December, 1891," which was before the instrument was signed. But he further affirms that he sets his hand to the certificate "this 18th of Dec., 1891." It is probable that there is a misprision in the record before us in respect of the time Martha Emeline Lancaster came before the officer, and that in the original certificate that date is the 18th, instead of the 8th; and it may be that such a discrepancy even in the original would not be vitiating. Anyway as to that we lay no stress upon it now. But it will be observed that this certificate entirely omits the following words of the form: "Known to me (or made known to me) to be the wife of the within named," and, of course, omits the name of G. W. Lancaster, which should come after the word "named." Not only so, but there are no other words employed in the certificate in substance the same, or in any way to take the place of those thus omitted. Indeed, the other words of the certificate are those only which are in the prescribed form, and, they having offices of their own to perform different from those intended to be served by the omitted words and hence necessarily not meeting the exigency intended to be met by the latter, cannot be availed of to supply the fact required to be stated in the words quoted. Nor can the fact be supplied by reference to the instrument. There is nothing in that, and in the nature of things could not be, to show that the Martha Emeline Lancaster who appeared before the officer was known or was made known to him to be the wife of G. W. Lancaster. That these words have a very important office to perform, being the record of the quasi judicial ascertainment of the fact that the person making the acknowledgment is the wife of the grantor, and that a certificate not containing them or others of like import is not substantially in the form prescribed,

and therefore is of no efficacy, there can, we think, be no doubt.

It is said in the cases that liberality of interpretation of such certificates will be indulged, but no case goes further than to hold that a substantial following of the prescribed form will suffice; and when it is considered that the statute itself requires only that the certificate shall be substantially in the form prescribed, it seems to be inapt to say that the rule adopted in the cases is a liberal one. It is, indeed, strictly in accordance with the letter of the law to say that the form must be substantially pursued. The cases do hold that a certificate is to be read in connection with the instrument, and if, when so read, all the essential facts are shown by it, this is a substantial compliance with the statute and the form; but there is no operation in this case as we have seen, for that doctrine. The true rule in this connection is stated, and its application illustrated, in the case of Gates v. Hester. There the certificate affirmed that the person acknowledging--Amanda Hester--was the wife of R. B. Hester, who was the grantor, and that she was known to the officer. This was held to be in substance an affirmation that Amanda Hester was known to the officer to be the wife of R. B. Hester, and therefore substantially in the prescribed form. The court said: "Such certificates should, and always have, received a liberal construction by this court. Literal compliance with the statutory forms is not exacted. To avoid making the security and validity of titles dependent on strict phraseology, the settled rule of construction in respect...