Pereau v. Frederick

• Decision Date: 20 January 1885
• Citation: 22 N.W. 235,17 Neb. 117
• Parties: MARTHA P. PEREAU, APPELLEE, v. PETER FREDERICK, APPELLANT
• Court: Nebraska Supreme Court

22 N.W. 235

17 Neb. 117

MARTHA P. PEREAU, APPELLEE, v. PETER FREDERICK, APPELLANT

Supreme Court of Nebraska

January 20, 1885

APPEAL from the district court of Richardson county. Heard below before BROADY, J.

AFFIRMED.

E. W Thomas, for appellant, cited: Palmer v. Windrum, 12 Neb. 494. Cake v. Peele, 49 Conn. 483. Young v Darrell, U. S. Supreme Court, 1883. Huter v Glasgow, 79 Penn. State, 79. Northwestern Insurance Co. v. Nelson, 12 Rep., 161. Fitzgerald v. Fitzgerald, Id., 720. Dolph v. Barney, 14 Am. Law Reg., 748. Washburn v. Roesh, 13 Brad., 268. 6 Wait's Actions and Defenses, 472.

Frank Martin, for appellee, cited: H. & M. v. Finch, 3 Ohio St. 449. Hodge v. Gilman, 20 Ill. 441. Montag v. Linn, 23 Ill. 551. VanHorn v. Bell, 11 Iowa 465.

OPINION

MAXWELL, J.

In September, 1882, one L. E. Wood sold an alleged patent right 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 Steele'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 Steele's addition to Falls City, Neb.," being the homestead of Pereau and his wife. This action is brought by the wife of Pereau against Frederick, who had purchased the note and mortgage of Wood, 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, 79 Pa. 79. N. W. 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, 24 L.Ed. 1027. 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 included the homestead. He then states: "I wrote them in in that way" (lots 1 and 2), "and afterwards, when my attention was called to the fact I had put in 1 and 2, I supposed it was a good faith transaction on the part of Pereau, and merely a mistake on his part, and when the deed was brought back to me, supposing it was a mistake of mine, I changed the numbers 1 and 2 to 13 and 14 myself, and Mrs. Pereau nor Pereau was not present when I made it."

On cross-examination he testifies as follows:

Q. What time was the mortgage brought back for correction?

A. I don't remember; I think the same afternoon, but I am not sure of that.

Q. Early afternoon?

A. I don't remember what time it was.

Q. Are you sure it was not after dark?

A. I cannot remember.

Q. Who brought it to you?

A. Wood.

Q. What did he say?

A. He said, "There is a mistake in this deed;" and I then went and got the plat and compared, and there was a mistake in the deed, and I supposed it was my error, as I supposed Pereau was in good faith giving the numbers, and I corrected it--or at least I changed it, whether you call it a correction or not.

He also testifies that the mortgage might have been filed for record in the county clerk's office when he made the alteration. Charles Loree, deputy county clerk, testifies that the instrument was filed for record on the evening of the 23d of September, 1882. He states: "Wood asked me to record it, and also asked me if it covered Pereau's property, and I told him it did not."

Q. It then covered lots 1 and 2 in block 4?

A. I told him it did not.

Q. What did he do then?

A. He asked me to wait half a minute, and he would have it corrected.

Q. How long did he have it out?

A. I think a few minutes.

Q. And brought it back in the condition it now is?

A. Yes.

One Niekirk, called as a witness for the defendant, testifies that he went with Wood to have the mortgage recorded about 8 or 9 o'clock in the evening of the day on which the mortgage was made; that Loree, the clerk, informed Wood that there was a mistake in the numbers of the lots; that "Wood spoke up and began to curse, and says he is going to have them made right, and to satisfy him Loree went and got the book and showed him he hadn't got the right numbers, and he took that note up and made the remark: 'I have paid them, and by he's got to make them right.' He mentioned Wardell (the notary's) name when he made the oath. He went away, and was gone from ten to fifteen minutes, and came back and said: 'By , I have got them right, ' and he put them on the record, and he paid Charlie for his trouble and we went...