Roberts v. Roberts

• Decision Date: 19 February 1916
• Docket Number: 30378
• Citation: 156 N.W. 399,176 Iowa 610
• Parties: MARY E. ROBERTS, Appellant, v. C. A. ROBERTS et al., Appellees
• Court: Iowa Supreme Court

156 N.W. 399

176 Iowa 610

MARY E. ROBERTS, Appellant, v. C. A. ROBERTS et al., Appellees

No. 30378

Supreme Court of Iowa, Des Moines

February 19, 1916

REHEARING DENIED WEDNESDAY, JUNE 28, 1916.

Appeal from Polk District Court.--HUGH BRENNAN, Judge.

ACTION in equity to recover the amount alleged to be due on a certain promissory note, and to foreclose a mortgage given to secure the same. Judgment and decree in favor of the defendant Laura B. H. Roberts. From this judgment, plaintiff appeals.

Reversed.

A. A McGarry, for appellant.

J. L Warren and J. A. Dyer, for appellees.

GAYNOR, J. EVANS, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

The plaintiff alleges that, on the 17th day of May, 1910, defendants C. A. Roberts and Laura B. H. Roberts made, executed and delivered to her a promissory note for $ 850; that, to secure the payment of the note, they executed and delivered to her a certain mortgage upon a house and grounds described as Lot 14 in Saucerman's Addition to the city of Des Moines. She asks judgment for the amount of the note against both the defendants, and that the mortgage be foreclosed.

The defendant Laura B. H. Roberts alone answers the petition; denies that either she or her co-defendant ever received any consideration for said note; denies that the signature to the said note is her genuine signature; alleges that if it is her genuine signature it was procured through the fraud of her co-defendant, and that she was induced to sign it without knowing its contents, through trick or fraud perpetrated upon her by her co-defendant; denies that said note was ever delivered to the plaintiff by her or her co-defendant; denied that the plaintiff is the owner and holder of said note. She makes the same allegations as to the mortgage. Upon the issues thus joined, the cause was tried to the court and judgment entered for the defendant Laura B. H. Roberts, now Laura B. Hammond, and as to her, plaintiff's petition was dismissed. From this judgment, plaintiff appeals.

The record in this case discloses that the mortgage upon which suit was brought was duly acknowledged on the 17th day of May, 1910, before J. A. Dockstader, a notary public. It is not claimed that such acknowledgment does not conform to the requirements of the statute, to wit, Section 2959 of the Code of 1897. This certificate of acknowledgment has probative force as to the due execution of the instrument by the parties acknowledging the same before the notary. If the acknowledgment to the mortgage makes a prima-facie case of the due execution of the mortgage by the acknowledging parties, it therefore has probative force as to the due execution of the note described in the mortgage. A notary public is a public officer appointed by the governor of the state, and is required upon his appointment to execute a bond to the state conditioned for the true and faithful execution of his duties. (Section 374, Code Supp., 1907.) He is invested with the powers and is given the right to perform the duties which pertain to that office, by the custom and law of merchants. (Section 377, Code, 1897.) Among other powers conferred is the power to take acknowledgments of instruments in writing by which real estate shall be conveyed or encumbered. (Section 2942, Code Supp., 1907.) The acknowledgment must contain the following: That the person making the acknowledgment was known to the officer taking the same to be the identical person whose name is affixed to the deed as grantor, or that such identity was proved by at least one credible witness; that such person acknowledged the execution of the instrument to be his voluntary act and deed. (Section 2948, Code, 1897.)

It is provided that:

"Any officer, who knowingly misstates a material fact in . . . the certificate . . . shall be liable for all damages caused thereby, and shall be guilty of a misdemeanor, and fined any sum not exceeding the value of the property conveyed or otherwise affected by the instrument on which such certificate is indorsed." (Section 2955, Code, 1897.)

This court has had occasion to pass upon the probative force of an acknowledgment made before a notary public, on the question of due execution of the instrument acknowledged, and it is said:

"So far as the mortgage was concerned, the certificate of acknowledgment was sufficient proof of its due execution by the acknowledging parties. . . . If the mortgage is to be deemed as sufficiently proved, such proof is necessarily sufficient to prove the execution of the note also, because the mortgage describes the note." Currier v. Clark, 145 Iowa 613, 617, 124 N.W. 622.

It has also been said by this court:

"The certificate of a notary in such cases is entitled to great weight, and should not be lightly overcome. Such certification has been regarded as sufficient proof of the genuineness of the signature, not only to the mortgage, but to the note also." Gribben v. Clement, 141 Iowa 144, 153, 119 N.W. 596.

This court has also said:

"When the plaintiff introduced the mortgage in evidence, with the certificate of acknowledgment attached, he made a prima-facie case upon the issue joined between the parties." Mixer v. Bennett, 70 Iowa 329, 331, 30 N.W. 587.

In Borland v. Walrath, 33 Iowa 130, 133, the only point presented was one of fact raised by the answer of the defendant, denying that she executed or acknowledged the mortgage. The mortgage in dispute was duly acknowledged before a notary public. In passing upon the question, the court said:

"The certificate of acknowledgment, we concede, is to have weight in determining the question. It certainly makes a prima-facie case. This is the least that can be claimed for it. At all events, a party seeking to defeat his deed, because it was not acknowledged by him, ought to make a clear case against the certificate of the officer in order to overthrow the instrument."

True, the facts recited in the certificate are not conclusive (Section 4632, Code, 1897), but they are sufficient at least to raise a presumption that the matters therein stated are true. The certificate was made by the officer whose duty it was, under the law, to certify the facts as they actually occurred before him. To falsely certify subjected him to a heavy penalty. We must assume, in the absence of clear evidence to the contrary, that the facts therein certified to are true. The certificate, therefore, makes a prima-facie case as to the execution and acknowledgment of the mortgage, and casts upon the one denying the execution and acknowledgment, the burden of negativing the facts stated in the certificate.

Outside of the certificate, what does the record disclose?

Mary E. Roberts, the plaintiff, is the mother of the defendant, C. A. Roberts. The other defendant, Laura B. H. Roberts, was, at the time of the execution of this mortgage, the wife of C. A. Roberts. These defendants were married on the 9th day of May, 1910. The note and mortgage are dated the 17th day of May, 1910, eight days after the marriage. It appears that Laura B. H. Roberts, at the time of her marriage to the other defendant, was a widow, with three children. It appears that, about a week after their marriage, they moved into the property in controversy. Laura B. H. Roberts testifies:

"Mr. Roberts said to me that we had better buy this property than pay rent. . . . He said he was going to get some money from his mother. . . . He subsequently bought the property. He said it was three hundred dollars that was paid on the property. I know he was going to get money from his mother, but I never saw any of it. . . . I do not remember exactly how long it was after that we moved in. He said he got the money from his mother to make the payment. I do not know how much money he got from his mother. . . . He went a number of times after the money."

Touching the mortgage, she testified:

"I don't know when my name got on the note unless it happened when we removed the guardian. Mr Dockstader acknowledged papers for me down at his...