Qualls v. Qualls

• Citation: 196 Ala. 524,72 So. 76
• Decision Date: 18 May 1916
• Docket Number: 4 Div. 577
• Parties: QUALLS v. QUALLS.
• Court: Supreme Court of Alabama

72 So. 76

196 Ala. 524

QUALLS v. QUALLS.

4 Div. 577

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, Covington County; H.A. Pearce, Judge.

Action by Emily Qualls against J.M. Qualls. From a judgment for plaintiff, defendant appeals. Affirmed.

Baldwin & Murphy, of Andalusia, for appellant.

Jones &amp Powell, of Andalusia, for appellee.

THOMAS J.

This action of ejectment was brought by Emily Qualls for the recovery of the lands described in the complaint.

The plaintiff as a witness testified that she had been living on the land in question since she received the patent thereto that defendant J.M. (Bunk) Qualls also had been living on the land about 16 years; that there was a clearing and considerable improvements on the land, some of which were made by the defendant; that she "did not execute a deed to Mr. Qualls to this land"; that she did not execute any such deed thereto before Justice of the Peace Reeves or Justice of the Peace Windham; that she went to Windham to get him to fix up her will; that she signed a timber right deed when Mr. W.O. Searcy and Mr. T.J. Pearce came to her place that she could not read; that she knew Mrs. Cauley.

Defendant then asked the witness the question:

"Did you tell her, at Mrs. Strickland's home, six or seven years ago possibly, no one else except you and Mrs. Cauley being present, that you had made Bunk a deed to this land?"

The refusal of the court (on objection of plaintiff) to allow the witness to answer this question is assigned as error. The tendency of the evidence sought to be elicited was to impeach the statement of the witness that she did not execute a deed to the land in question to Mr. Qualls. The predicate sought to be laid was within the accepted rule. McDaniel v. State, 166 Ala. 7, 52 So. 400; Price v. State, 117 Ala. 113, 23 So. 691; Hester v. State, 103 Ala. 83, 88, 15 So. 857. It is clear, however, that no prejudicial error intervened; for Mrs. Cauley was permitted to contradict the statement for which the predicate was sought to be laid.

There was no error in refusing to allow the defendant to prove the genuineness of the signature of the witness T.J. Pearce to other papers than the deed in dispute for the purpose of laying a predicate for the introduction of expert testimony. It was not shown that the papers exhibited to witness were material to the controversy, and not shown they were in evidence. At the time of this trial comparison of handwritings might not be made except under the conditions pointed out in Kirksey v. Kirksey, 41 Ala. 626; Curtis v. State, 118 Ala. 125, 24 So. 111; Griffin v. Working Women's Home Ass'n, 151 Ala. 597, 602, 44 So. 605.

The defendant introduced in evidence a deed to J.M. Qualls, dated July 1, 1905, conveying the land in question, reciting a consideration of $300, and purporting to be signed by plaintiff, Emily Qualls, by her mark, and attested by W.O. Searcy and T.J. Pearce, and bearing a certificate of acknowledgment of said date, by W.O. Searcy, justice of the peace.

The plaintiff called as a witness W.O. Searcy, who testified that he knew the parties; that he went out to Bunk Qualls' to take an acknowledgment about the 1st of July, 1905. He was then handed the above-described deed, and on inspection replied to questions by plaintiff's counsel:

"I signed that acknowledgment. That is my signature as a witness, and I signed as a witness."

Plaintiff's counsel then asked:

"Well, now, did Mrs. Qualls make her mark to that paper there (referring to the deed in question)?"

Counsel for defendant objected to the question on the grounds that the officer who took the acknowledgment was not a competent witness to contradict or impeach the certificate. To the overruling of this objection the defendant excepted, and defendant now assigns the ruling as error. The witness answered:

"No, sir; not before me, she did not, she did not make her mark to that paper before me that day or at any other time."

Here plaintiff, over defendant's objection and exception, asked:

"Well, at whose instance did you write that deed?"

And the answer was:

"J.M. Qualls got me to write that deed, the defendant. He got me to write it on the morning of the day that it was dated, I believe. He got me to do this in my office at Opp. He came up there to me. I wrote the deed there in my office. I was in my office when I signed my name there as a witness. I then carried that deed out to Bunk Qualls. I saw Mrs. Emily Qualls there. There was something said about her signing this deed. *** Bunk asked her, *** She said she would not sign it. I think the deed was left lying there on the table, or machine."

In many jurisdictions it is held that the officer is not a competent witness to contradict or impeach his certificate of acknowledgment to a conveyance. Stone v. Montgomery, 35 Miss. 83; Greene v. Godfrey, 44 Me. 25; Cent. Bank v. Copeland, 18 Md. 305, 81 Am.Dec. 597; McKellar v. Peck, 39 Tex. 381; Hockman v. McClanahan, 87 Va. 33, 12 S.E. 230; Wooldridge v. Wooldridge, 69 W.Va. 554, 72 S.E. 654, Ann.Cas.1913B, 653; 1 Dev. on Real Estate (3d Ed.) § 532; 1 Corpus Juris, p. 895, § 282.

In Hailey v. Glenn, 10 Idaho, 224, 77 P. 623, 109 Am.St.Rep. 204, the court says:

"No notary should be allowed to come into court upon the foreclosure of a mortgage and give testimony his certificate to the mortgage which is being foreclosed. In the first place, the certificate is made at the time of the acknowledgment, and is the solemn declaration of the officer in his official capacity, under his hand and seal, as to the truth and accuracy of the statements it contains, and it is more likely to be true and correct than the memory of the person in years afterward. *** After persons have relied upon the faith and correctness of his official statement and invested their money, and rights have grown up thereunder, the person who acted as such official and made such certificate should not be heard in a court of justice disputing its correctness."

The question of the validity vel non of the instrument, as respects the competency of the officer taking the acknowledgment, must be raised in a direct, and not a collateral, attack. Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Monroe v. Arthur, 126 Ala. 362, 28 So. 476, 85 Am.St.Rep. 36; Hayes v. B. & L. Ass'n, 124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216. Where, however, the officer was without jurisdiction, in that there was no examination of the reputed grantor, and no acknowledgment before the officer, then such a certificate is void because not authorized by law to be made, and it may be attacked collaterally, as is now sought to be done. Chatta. N.B. & L. Ass'n v. Vaught, 143 Ala. 389, 39 So. 215; Parrish v. Russell, 172 Ala. 1, 55 So. 140; Gilley et al. v. Denman, 185 Ala. 561, 64 So. 97.

It is essential, for the certifying officer to have acquired jurisdiction of the grantor, to have before him at the time the grantor and the instrument to be acknowledged, and, as such officer, to have entered upon the exercise of his jurisdiction. The mere casual presence of the reputed grantor and the possession of an instrument purporting to have been signed are not sufficient to confer jurisdiction. There must be an acknowledgment in some form by the grantor of the instrument signed. Orendorff v. Suit, 167 Ala. 563, 52 So. 744; Chatta. N.B. & L. Ass'n v. Vaught, supra; Parrish v. Russell, supra; Barnett et al. v. Proskauer & Co., 62 Ala. 486. And want of jurisdiction may be shown by parol. N.E.M.S. Co. v. Payne, 107 Ala. 578, 18 So. 164; E.A.L.M. Co. v. Peoples, 102 Ala. 241, 14 So. 656.

It is not essential to the impeachment of a certificate of acknowledgment that the certifying officer should have participated in the fraud or duress practiced on the grantor. 1 Dev. on Real Estate (3d Ed.) § 532, and authorities; Gilley et al v. Denman, supra.

In the instant case no right of a bona fide purchaser for value without notice is challenged. The charge of forgery of plaintiff's execution of the warrant on which the defendant relies for title is made, and that the same was participated in by the defendant, and that plaintiff never, in fact, executed the conveyance or acknowledged the same before the officer certifying thereto.

In Parrish v. Russell, supra, the court said:

" 'The presence of the officer for the purpose stated, the presence of the instruments themselves, the presence of the grantors for said purposes, and the signing of the papers then and there by them, the notary's certificate of the acknowledgment of the husband, and the separate acknowledgment of the wife are not open to impeachment by parol evidence; no fraud or duress being shown.' The rule here stated, following what was laid down in Grider v. Mortgage Co., 99 Ala. 281, 12 So. 775, 42 Am.St.Rep. 58, has never been departed from

in this court."

In the case of Grider v. A.F.L.M. Co., 99 Ala. 281, 12 So. 775, 42 Am.St.Rep. 58, it is said:

"We know the absolute and implied faith and trust which, in practice, purchasers of real estate repose, and must necessarily repose, in the formal and regular certificates of authorized officers, authenticating the regular and legal execution of conveyances, and the disastrous consequences which may flow from a rule which would allow those certificates to be questioned and set aside against purchasers who have parted with valuable interests in reliance upon them; yet, on the other hand, we perceive the manifest injustice of a rule which would deprive one of his property, without his knowledge or consent, upon the mere baseless fabrication of another. *** Upon due consideration we are of opinion that the better rule, and the one sustained by the weight of authority, is, that when there has been no appearance

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