Eades v. Morrilton Lumber Co.

Hart, J., (after stating tile facts). Counsel for the defendants contend that the chancery court erred in finding that M. H. Dean took the acknowledgment of J. A. Eades and Mrs. Almedier Eades, his wife, to the mortgage. The burden of proof was on the defendants to establish this fact. Miles v. Jerry, 158 Ark. 314, 250 S. W. 34; Foster v. Graves, 168 Ark. 1033, 275 S. W. 653; Thompson v. Kinard, 158 Ark. 1057, 272 S. W. 1057; and Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 1024. Bearing in mind that the burden of proof in this resp'ect was upon the defendants, we do not think that the finding of the chancellor in favor of the plaintiff upon this point is against the preponderance of the evidence. It is true that J. A. Eades and his wife, and their aunt,' Mrs. Stamper, all testified that their acknowledgment to the mortgage was not taken by Dean. Eades says that he simply supposed he came as an attorney-at-law for Neal. It appears from the record that Eades is a lawyer. At least he knew that the plaintiff had a lien for material under the statute, which was enforceable. It is difficult to perceive why the plaintiff would let this statutory security expire by limitation, and take a mortgage which would be valueless, as far as third persons were concerned, without acknowledging or recording it. According to the testimony of the defendants, Dean never attempted to take their acknowledgment to the mortgage. He was a lawyer, and it is difficult to perceive why he would not at least have asked them to acknowledge the execution of the mortgage. Eades admitted that he signed it of his own free will, and infer-ably admits that he would have acknowledged it if he had been asked to do so. After the execution of the mortgage, he made two payments on it. Dean testified in a most forceful manner that he took the acknowledgment of J. A. Eades and his wife. He said that, after Eades and his wife had signed the mortgage, Neal handed it to him on the front porch, and he at once took the acknowledgment of Eades. Eades and Neal then walked off of the porch around the corner of the house, and, while they were absent, Dean took the acknowledgment of Mrs. Eades, and she seemed to sign the mortgage without any compulsion or restraint whatever. She seemed to be in a perfectly good humor, and seemed to have no objection to having her acknowledgment to the mortgage taken. It is true that Neal was'not present when Dean says that he took the acknowledgment of Mrs. Eades to the mortgage, but, according to his testimony, he and Eades had gone around the house for the purpose of allowing Dean to take the acknowledgment of Mrs. Eades in the absence of her husband. According to the testimony of M. H. Dean, he had had considerable experience as a notary public, and was also a lawyer of several years standing. It would be unreasonable to think that he would have allowed his company to have given up a perfectly valid statutory security, good against every one, for a mortgage that would only be good between the parties to it. Again, it is insisted that Mrs. Eades was induced to sign the mortgage through the coercion of her husband. Under the authorities above cited, the burden of proof in this respect was also upon her. It is true that both she and her husband testified that she signed the mortgage through coercion; but, when their testimony is considered in its entirety, we are of the opinion that it is not legally sufficient to establish this fact. Mrs. Eades admitted that her husband used no bad language to her, and that he simply told her that she would have to sign the mortgage or else the statutory lien of the plaintiff for materials would be foreclosed and they would be thereby deprived of their home. As above indicated, this testimony falls short of establishing coercion. Finally, it is insisted that the mortgage is invalid as to W. M. Eades because M. H. Dean, who took the acknowledgment of J. A. Fades and .his wife to the mortgage, was a stockholder and director of the Morrilton Lumber Company. This court has held that the taking of an acknowledgment to a deed or mortgage is an act ministerial in character, and that, where it does not appear from the face of the instrument or the certificate of acknowledgment that the officer before whom the acknowledgment was taken was a stockholder in a corporation, the acknowledgment will not be held invalid on that account. Davis v. Hale, 114 Ark. 426, 170 S. W. 99. In addition, there must be shown fraud, coercion, or undue influence, as decided in the case just cited. When a deed or mortgage with a certificate of acknowledgment as required by statute is presented to the recorder, it is his duty to record it, and such record is constructive notice to subsequent mortgagees. Any other rule would destroy the reliability of the public records and lead to most mischievous results. Bank of Benson v. Hove, 45 Minn. 40, 47 N. W. 449; and Titus v. Johnson, 50 Tex. 224. It follows that the decree of the chancellor must be affirmed.