Pereau v. Frederick

• Court: Supreme Court of Nebraska
• Writing for the Court: MAXWELL
• Citation: 17 Neb. 117,22 N.W. 235
• Parties: PEREAU v. FREDERICK.
• Decision Date: 20 January 1885

17 Neb. 117
22 N.W. 235

PEREAU
v.
FREDERICK.

Supreme Court of Nebraska.

Filed January 20, 1885.

Appeal from Richardson county.

[22 N.W. 235]

Frank Martin, for plaintiff.

E. W. Thomas, for defendant.

MAXWELL, J.

In September, 1882, one L. E. Wood sold an alleged patentright to one Joseph H. Pereau for the sum of $750. To secure the payment of the same, Pereau and wife executed a mortgage upon lots 1 and 2, in block 4, in Steel's addition to Falls City, and also upon the undivided half of lot 8, in block 58, in said city. The mortgage was afterwards changed by erasing the numbers “one” and “two,” and inserting in lieu thereof “thirteen” and “fourteen,” so that in the mortgage as changed the property is described as “lots thirteen and fourteen, (13 and 14,) in block four, (4,) in Steel's addition to Falls City, Neb.,” being the homestead of Pereau and wife. This action is brought by the wife of Pereau to cancel the mortgage upon the homestead, for the reason that the description of said premises was fraudulently inserted without her consent in said mortgage after she had signed and acknowledged the same. The court below found the issues in favor of the plaintiff, and rendered a decree declaring the mortgage on the homestead null and void, and canceling the same. The defendant appeals. That the mortgage was changed is admitted, and the only question for determination is whether the change was made before or after it was signed and acknowledged. It is contended on behalf of the defendant, and we think correctly, that the certificate of the officer taking the acknowledgment must stand against a mere conflict of evidence as to whether the instrument was voluntarily signed, acknowledged, and delivered or not, and cannot be impeached except upon proof which clearly shows it to be false and fraudulent. Heeter v. Glasgow, 21 Amer. Rep. 46; Northwestern Ins. Co. v. Nelson, 12 Reporter, 161; Fitzgerald v. Fitzgerald, Id. 720.

In the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of an instrument, the officer's certificate in proper form must prevail over the unsupported testimony of the grantor or mortgagor that the same is false and forged. Fitzgerald v. Fitzgerald, 12 Reporter, 721; Graham v. Anderson, 42 Ill. 514;Monroe v. Poorman, 62 Ill. 523;Borland v. Walrath, 33 Iowa, 130;Van Orman v. McGregor, 23 Iowa, 300;Hourtienne v. Schnoor, 33 Mich. 274;Howland v. Blake, 97 U. S. 624. In this case, however, the certificate is impeached by the testimony of the notary taking the acknowledgment. He testifies that he did not read the mortgage to the plaintiff, but stated its contents to her, and that it...