Weldon v. Bates

• Citation: 229 Ala. 169,155 So. 560
• Decision Date: 17 May 1934
• Docket Number: 5 Div. 178.
• Parties: WELDON v. BATES.
• Court: Supreme Court of Alabama

155 So. 560

229 Ala. 169

WELDON v. BATES.

5 Div. 178.

Supreme Court of Alabama

May 17, 1934

Rehearing Denied June 28, 1934.

Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.

Bill to cancel mortgage by Elnora Bates against J. C. Weldon, as receiver of the first National Bank of Tallassee, and J. A Bates. From a decree for complainant, respondent Weldon, as receiver, appeals.

Reversed and rendered.

W. C Woodall, of Tallassee, and Holley & Milner, of Wetumpka, for appellant.

Jas. W Strother, of Dadeville, for appellee.

THOMAS Justice.

The bill as amended is by the wife to cancel a mortgage on the husband's land.

It has been declared that the wife cannot, ordinarily, maintain a bill to avoid the conveyance of the husband of the homestead in the absence of due allegation and proof that the husband fails to act in the premises. Fies & Sons v. Lowery, 226 Ala. 329, 147 So. 136; Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463; Seaman v Nolen, 68 Ala. 463. Here, the bill alleges the wife and husband are living apart, and there is no averment that the husband has abandoned the wife or that he failed or refused to act to the end of cancellation of the mortgage; hence the court should not have granted relief at the instance of the wife alone. Fies & Sons v. Lowery, supra.

It is established that the act of certifying an acknowledgment is the exercise of a judicial function, and conclusive of certification, when the certifying officer acquires jurisdiction by having the grantor and the instrument to be acknowledged before him as such officer, and then and there exercises such jurisdiction; that "the resulting certificate is conclusive of the truth of all those facts therein stated, which the officer is by law authorized to state, until successfully assailed" (1) for duress, or (2) for fraud participated in by the grantee, or (3) brought to his notice when parting with the consideration. Fies & Sons v. Lowery, 226 Ala. 329, 331, 147 So. 136.

It is not maintained that there was a lack of consideration for the mortgage, or that the husband did not execute the same, and the bill as first amended (as of date of November 17, 1931) asserts "that the mortgage * * * has been satisfied and paid in full prior to the time this suit was instituted."

The burden rested upon the complainant throughout the proceeding, acting for or as to the husband and his land in the impeachment of the notarial certificates attached to and as part of the mortgage; and this burden is required to be discharged by evidence that is "clear and convincing, 'reaching a high degree of certainty, leaving upon the mind no fair, just doubts."' Freeman v. Blount, 172 Ala. 655, 664, 55 So. 293, 296; Fies & Sons v. Lowery, 226 Ala. 329, 147 So. 136; Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383.

We have examined the evidence, and it is not of that high and exacting degree which the rule that obtains in such a case requires.

The mere denial of the wife, the conflicting tendencies in the testimony of the husband, and the tendency of evidence as to the contradictory position taken by him in the United States court as to the mortgage (Luling v. Sheppard, 112 Ala. 588, 21 So. 352; Hodges v. Winston, 95 Ala 514, 11 So. 200, 36 Am. St. Rep. 241; Taylor v. Crook, Adm'r, 136 Ala. 354,...