Shelton v. Aultman & Taylor Co.

• Decision Date: 16 August 1884
• Court: Alabama Supreme Court
• Parties: SHELTON ET UX. v. AULTMAN & TAYLOR CO. [1]

8 So. 232

82 Ala. 315

SHELTON ET UX. v. AULTMAN & TAYLOR CO. ^[1]

Supreme Court of Alabama

August 16, 1884

Appeal from chancery court, Lawrence county; THOMAS COBBS Chancellor.

Bill to foreclose a mortgage. There was a decree for the complainant and the defendants appealed.

W P. Chitwood, for appellants.

J C. Kumpe, for appellee.

CLOPTON J.

The mortgage for the foreclosure of which the bill is filed as assailed, as an operative conveyance of the homestead, on several grounds, touching the official certificate of acknowledgment. The name of the wife need not appear in the body of the conveyance for the purpose of alienating the homestead. The statute does not require her to unite in a conveyance of the title. Her voluntary assent and signature, sworn and certified to in the prescribed form and mode, are the statutory requisitions. Her name need not appear otherwise than by her signature to the conveyance. Hood v. Powell, 73 Ala. 171. And by the settled construction of the statute, the clerk of the judge of probate may take the acknowledgment, and make the necessary certificate in the name of the judge. Halso v. Seawright, 65 Ala. 431.

The official certificate states that the wife was examined separate and apart from the husband, and acknowledged that she signed the mortgage of her own free will and accord, and without fear, constraint, or threats of her husband. The certificate is in proper and sufficient form, substantially complying with the statute. It was proposed, however, to show its falsity in this respect, without allegation or proof of fraud or imposition; and the evidence tends to show that, in fact, there was no privy examination of the wife. In Miller v. Marx, 55 Ala. 322, where the question related to the voluntary signature and assent of the wife, it was ruled that the official certificate, when substantially conforming to the statute, is conclusive, in the absence of impeachment by proof of fraud or imposition practiced towards her by some fraudulent combination between the parties interested and the officer taking the acknowledgment. And in Downing v. Blair, 75 Ala. 216, where the effort was to impeach the official certificate by parol evidence showing that the wife was not examined separate and apart from her husband, the same ruling was applied, and the evidence held inadmissible. In Barnett v. Proskauer, 62 Ala. 486 it was said that the official certificate, conforming substantially to the statute, is presumed to be true, but may be contradicted, and that parol evidence is admissible to falsify it, when the true issue is limited to the fact of execution. The principle of the decision is that, as it can be shown that the subscribing witnesses have testified falsely, or are mistaken, or that the witnesses called to prove the handwriting of the grantor have no knowledge thereof, or erred in supposing it to be genuine, so, also, the certificate of acknowledgment or probate, which takes the place of proof by the subscribing witnesses, or of the handwriting of the grantor, may be disproved as to the execution of the conveyance. It is now insisted that the decisions cited, sustaining the conclusive character of the certificate, are erroneous, and should be overruled. The position is that, as the officer, in taking and certifying the acknowledgment of conveyances, acts in a ministerial capacity, as held in Halso v. Seawright, supra, parol evidence should be admitted to falsify the certificate in any...