Rosebrook v. Martin

• Decision Date: 15 November 1917
• Docket Number: 7 Div. 871
• Citation: 76 So. 950,200 Ala. 592
• Parties: ROSEBROOK v. MARTIN.
• Court: Alabama Supreme Court

76 So. 950

200 Ala. 592

ROSEBROOK v. MARTIN.

7 Div. 871

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.

Ejectment by F.D. Rosebrook against J.E. Martin. Judgment for defendant, and plaintiff appeals. Affirmed.

E.O McCord, of Gadsden, for appellant.

Luke P Hunt, of Birmingham, for appellee.

McCLELLAN J.

Statutory ejectment by the appellant against the appellee.

The law's policy is to uphold a certificate of acknowledgment of a conveyance of real estate where from the certificate and the conveyance, of which the certificate is a part ( Smith v. McGuire, 67 Ala. 34, 37) it appears that a substantial, not a literal, compliance with the statutes prescribing the form and contents of such certificates have been observed (McCarver v. Herzberg, 120 Ala. 523 534, 25 So. 3). The certificate of acknowledgment of the mortgage signed by Rosebrook was not an exact copy of the form prescribed in the Code (§ 3361). Its only faults were: (a) The omission of the style of the officer, a justice of the peace, after the name of him who latterly signed the certificate just preceding the words "Justice of the Peace"; and (b) the substitution of the words "did execute" for the statutory words "he executed." It is perfectly clear from the instrument that the intention and the fact was that Miller, a justice of the peace, took the acknowledgment of Rosebrook, and efficiently, though not perfectly, certified the facts necessary to render the instrument self-proving. A certificate manifesting a far less degree of compliance with the statutes was upheld in Middlebrooks v. Stephens, 148 Ala. 230, 41 So. 735; Id., 160 Ala. 283, 49 So. 321. Upon that authority alone the court was justified in overruling the plaintiff's objection to the introduction of the mortgage in evidence based upon his view that the certificate of acknowledgment was fatally defective.

According to the apt authority afforded by Warrior River Coal Co. v. Ala. State Land Co., 154 Ala. 135, 140, 141, 45 So. 53, the court was well advised when it ruled that the instrument of date July 20, 1903, signed and acknowledged by "Earl Cochran, Register," was executed and was effective, and hence admissible in evidence, as a conveyance by the register in his representative capacity. The face of the instrument admits of no possible doubt of this fact.

The effort of the plaintiff to adduce evidence to the effect (a) that he had paid the mortgage debt, interest, etc., before the bill in equity to foreclose it was filed, and (b) that the mortgage had been foreclosed by a sale under the power...