Wayne Bldg. & Loan Co. v. Hoover

• Decision Date: 06 December 1967
• Docket Number: No. 40654,40654
• Citation: 12 Ohio St.2d 62,41 O.O.2d 279,231 N.E.2d 873
• Court: Ohio Supreme Court
• Parties: , 41 O.O.2d 279 The WAYNE BUILDING & LOAN CO., Appellee, v. HOOVER et al., Sando et al., Exrs., Appellants et al.

Page 62

12 Ohio St.2d 62

231 N.E.2d 873, 41 O.O.2d 279

The WAYNE BUILDING & LOAN CO., Appellee, v. HOOVER et al., Sando et al., Exrs., Appellants et al.

No. 40654.

Supreme Court of Ohio.

Dec. 6, 1967.

Syllabus by the Court

1. In the absence of evidence to the contrary, one who signs his name to a document in the presence of another thereby acknowledges his signing thereof to such other.

2. The mere signing of mortgage in the presence of an officer authorized to take an acknowledgment thereof may constitute a proper acknowledgment of such instrument within the meaning of Section 5301.01, Revised Code.

This action was instituted in the Common Pleas Court of Wayne County to foreclose a mortgage lien upon real estate and to marshal the liens thereon.

A defendant who claimed a judgment lien upon that real estate contended that his lien was valid; and that the mortgage lien was not valid because it had not been properly acknowledged before a notary public or other officer, as required by Section 5301.01, Revised Code, which reads, so far as pertinent:

'A * * * mortgage * * * must be signed by the * * * mortgagor * * * and such signing must be acknowledged by the * * * mortgagor * * * in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing must be acknowledged by the * * * mortgagor * * * before a * * * notary public * * * who shall certify the acknowledgment and subscribe his name to the certificate of such acknowledgment.'

Both parties apparently concede that, if plaintiff's mortgage was not properly executed, it could not be effective against a valid judgment lien. See Citizens Nat. Bank in Zanesville v. Denison (1956), 165 Ohio St. 89, 133 N.E.2d 329.

The certificate of acknowledgment reads, so far as pertinent:

'Before me, a Notary Public * * * personally appeared the above named Lewis F. Hoover and Helen Hoover, husband and wife and acknowledged the signing of the foregoing conveyance to be their voluntary act and deed for the uses and purposes therein mentioned.

'In testimony whereof, I have hereunto set my hand and official seal at Rittman, Ohio, this 10th day of December A.D., 1963.

'Wayne Forrer

'Notary Public'

The findings of fact of the Common Pleas Court, so far as they relate to the execution and acknowledgment of the mortgage, read:

'* * * after said loan contract and mortgage were examined by said Lewis F. Hoover and Helen Hoover and explained to them in the presence of both Iris Mogler and Wayne E. Forrer and while * * * Mogler and * * * Forrer were watching them * * * (the Hoovers) did sign * * * the mortgage * * * at the two places where their signatures appear therein, and * * * did know that they were observed while signing said mortgage, and * * * they were personally known to the said * * * Mogler and * * * Forrer at the time of signing said * * * mortgage; that no words were spoken by said * * * Forrer as a notary public to * * * (the Hoovers) regarding their signatures; that they simply were asked to sign the loan contract and mortgage at the places indicated, and * * * they did so sign their names in the presence of * * * Mogler and * * * Forrer; that the * * * (Hoovers) were adult, competent persons at the time of said signing, and * * * Forrer was * * * a duly authorized notary public * * *; that upon the said defendants Hoover having signed said * * * mortgage at the places indicated, the papers were pushed across a counter to the said * * * Mogler and * * * Forrer, and that * * * Forrer did thereupon sign as a witness to their signatures and also executed the certificate of acknowledgment on said mortgage as a notary public and affixed his signature and his seal as notary public and that * * * Mogler did thereupon also sign as a witness to the signatures of * * * (the Hoovers) on said mortgage * * *.'

In its judgment, the Common Pleas Court held that the judgment lien was invalid; and that the mortgage lien was valid, because properly acknowledged pursuant to the requirements of Section 5301.01, Revised Code.

The judgment of the Common Pleas Court was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.

Funk, Funk & Eberhart and Edward K. Eberhart, Wooster, for appellee.

Amer, Cunningham, Cunningham, Brennan & Miller and Richard T. Cunningham, Akron, for appellants.

TAFT, Chief Justice.

Probably because of Read v. Toledo Loan Co. (1903), 68 Ohio St. 280, 67 N.E. 729, it is not contended that Section 5301.01, Revised Code, has not been complied with merely because the notary public who certified the acknowledgment and subscribed his name to the certificate of the acknowledgment was also one of two witnesses who attested the signing of the mortgagor and subscribed his name to the attestation. Admittedly, the mortgage involved in the instant case was signed in the presence of a notary public but the makers thereof did nothing else to indicate their acknowledgment thereof.

The question therefore is whether the mere signing in the presence of a notary public may amount to the acknowledgment required by Section 5301.01, Revised Code.

There are authorities which seem to support either an affirmative ¹ or a negative ² answer to this question. See 29 A.L.R. 919, and 25 A.L.R.2d 1124.

In our opinion, the answer to this question depends upon the words of Section 5301.01, Revised Code. Apart from that statutory section, the statutes of Ohio provide no guidance as to the meaning of the statutory words 'signing * * * acknowledged by the * * * mortgagor * * * before * * * a * * * notary public.'

That statutory section requires that the 'signing' by the mortgagor 'must be acknowledged by the * * * mortgagor * * * in the presence of two witnesses,' but also requires that those two...