Garton Et Ux. v. Hudson-Kimberly Publishing Co.

‘Opinion of the court by McAtee, J.: It is declared in section 10, ch. 21, p. 377, Statutes 1893, on “Conveyances,” that: “Acknowledgements of all instruments affecting real -estate shall be in the following form: ■“ ‘Territory of Oklahoma, County of-, ss-. “ ‘-before me,-a--- in and for the above named county and Territory, on this-day of —:-, 189 — , personally appeared-and-to me known (or proven) to be husband and wife, and executed the above conveyance of lands to me known (or proven) to be the homestead (or known to me, or proven not to-he «the homestead) of the grantors and each for themselves acknowledged the execution thereof to be their free and voluntary act for the purposes named. i( (_ i( (_ “ ‘Witness my hand and official seal the date above written. * * Provided further, the notary shall certify as follows: ‘The grantor is known (or proven) to me to be single or unmarried, or that the parties are known (or proven) to me to be husband and wife, and the land conveyed is known (or proven) to me to- not be the homestead of the grantor (as the case may be.)’ ” And it is also provided by’ section 20, p. 380, of the same chapter, that: *636 “All instruments conveying or affecting the title to the-homestead exempted by la,w to> the head of a family, shall be void unless the husband and wife sign and acknowledge one and the same joint instrument conveying the-same.” And it is also provided, in section 21, ch. 82, of the Statutes of 1893, on “Transfers,” that: . “An officer taking the acknowledgment of an instrument must indorse thereon or attach thereto' a certificate-substantially in the forms hereinafter prescribed: “First. Such certificate of acknowledgment, unless it is-otherwise in this article provided, must be substantially in the following form: “ ‘Territory of- or state of-, County of -SB. On this-day of--in the year-before me personally appeared--, known to me or-proved to me on the oath of-to be the person who is described in, and who executed the within instrument, and acknowledged'to me that he (or they) executed thie.same.’ ” It is contended that, since the lands, were admitted to-be the homestead of the grantors-, under the provision of the statute upon “Conveyances” the certificate must contain the recital that the lands were known or proven-to be o-r not to be the homestead of the grantors, and that such a certificate is essential to the validity of the mortgage. The statute upon “Conveyances” and that upon “Transfers,” while contained in separate chapters, were each a part of the Statutes of the Territory -of 1890, and each went into effect upon the 25th day o-f December, 1890, and were readopted" as a part of the Statutes of" 1893. *637 It has been heretofore held by this court in Hess v. Trigg, this volume, p. 286, 57 Pac. 159, that, while these statutes provide different modes olf acknowledgment, each were afterwards incorporated in the Statutes ■of 1893, and that they are each, when conformed to, effective, and that, inasmuch as they relate to the same subject-matter, they should be construed together, and effect given to each; and that this rule should especially be held where statutes relating to the same subject-matter have been enacted at the same legislative session, rather than to infer that one of the statutes was meant to destroy the other The acknowledgment which is challenged in the discussion fully conformsi to the acknowledgment required in the statute upon, transfer®. The husband and wife have joined in making the mortgage; have signed and acknowledged it, conveying the land in dispute, for the purposes mentioned; and the statute of the Territory is, therefore, fully complied with, which provides in section 20, ch. 21, p. 380, Statutes 1893, that: “All instruments conveying or affecting the title to the homestead exempted by law to the head of the family, shall be void, unless the husband and wife sign and acknowledge one and the same joint instrument conveying the same.” It is contended, in the second place, that the acknowledgment is imperfect, inasmuch as it provides only that, “And each for themeslves acknowledge the execution thereof to be-free and voluntary act for the purposes named,” and that the omission of the word “their,” and the omission to so fill up the blank in the deed, is fatal to its execution, and that the deed was therefore *638 void. We cannot sustain this contention. The ruléis that a substantial, and not a literal, compliance with the statute in the certificate of acknowledgment of a deed, or mortgage of real estate is all that the law requires, and that, although words not in the statute are used in the-place of others that are, or words in the statute are-omitted, yet if the meaning of the words used is the-same, or they represent the same fact, or if the omission of a word or words is immaterial, or can be supplied by a reasonable or fair construction of the whole instrument,, the certificate will be held sufficient. (Belcher v. Weaver, 46 Tex. 293; Schley v. Car Co., 120 U. S. 575, 7 Sup. Ct. 730; Bank v. Rauch, [Idaho] 51 Pac. 764.) In Donahue v. Mills, 41 Ark. 421, the certificate of acknowledgment was held good, the latter part of which read as follows: “And I do further certify that this day voluntarily appear before me-, to me well known as the person whose name appears upon the within and. foregoing deed, and in the absence of-, said husband, declared that-had of her own free will executed the foregoing deed;” and it was held to show due-acknowledgment by the wife. In Dickerson v. Davis, 12 Iowa, 353, the word “his” before the words “free and voluntary act” was omitted.. The acknowledgment was held to be good. In Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513, the-word “her” before the words “act and deed” was omitted. This also was held to be good. The certificate of acknowledgment in the present case-declares that Frank E. Garton and Lizzie D. Garton. his- *639 wife, personally appeared before the officer; that they were known to him to be husband and wife; that they executed the conveyance of the land, describing it; and. that “each for themselves acknowledge the execution thereof to be-free and voluntary act for the purposes named.” -The essential statements are all here. In the absence of authority, we should say that the-word's “each for themselves adequately expressed the meaning of the latter clause of the acknowledgment. The defect, however, — for it is still a defect, — is obviously mere clerical error, and it is sufficient, the necessary facts being expressed in other words. (1 Am. &. Eng. Enc. Law [2d Ed.] 547.) But this is an action between Garton ■ and his wife themselves and the assignee of the mortgagee, and it has been held by this court that an imperfect acknowledgment, or even a total want of it, will not affect the-validity of a conveyance of real estate as between the parties, and that the mortgage, if in fact it was executed, was just a® good between the parties without the-acknowledgment since the acknowledgment ha® reference simply to the proof of execution, and not to the-effective force of the instrument. (Hess v. Trigg, this volume, p. 286, 57 Pac. 159.) And this applies to mortgages as well as to grant® of land, since it is specifically provided by the Statutes 1893, sec. 7, cb. 51, that “mortgages- of real property may be-acknowledged or proved, certified, and recorded in like-manner and- with like effect a® grants thereof.” There-was no question concerning the execution of the instrument, since Garton and his wife each in their separate *640 answers acknowledged the execution of the instrument, she saying that she did so “in order, as she believed, to save her husband trouble, * * she signed the said note and mortgage.” It may be observed that the defense set up in the separate answer of each of them was that the mortgage was executed under duress, — a defense which is abandoned in the discussion in the briefs-, the defendant® now relying upon the defenses herein reviewed. It is contended that the court erred in admitting evidence, over the objections of the defendants, of the memorandum of agreement -signed by the defendants, and dated December 12, 1895, wherein it was- attempted to change the word “maturity” to the word “date” in the note -and' mortgage sued o-n, for the reason that the statement was not signed and acknowledged by the parties so as to make the same a port o-f the mortgage, and toi bind the parties to the mortgage as against their homestead rights. We think this contention would be good if set up by third parties whose interests, were admitted to be affected by the subsequent admission of the parties, but the admission was undoubtedly made at the time of its execution with a genuine intention not to alter the mortgage to make it express something which was not originally intended; but intended to restore to it the meaning which was m-eant by the parties at the time of its execution by substituting the word “date” for the word “maturity,” and thereby provide that the debt should -accumulate interest from the time of the execution of the note and mortgage, as the parties thereto had originally intended. This was expressly and fully charged in the petition, to which the memorandum of *641 December 12, 1895, was annexed as an exhibit, and it was a question directly in issue, and passed upon and included in the verdict. We think it was not error to admit the agreement in evidence, and permit the jury in pass upon it in the ca.se as between the parties. It is‘again advanced for error that the court erred in entering judgment for the plaintiffs for the sum of $125, attorney’s fees. The prayer of the petition limited the request for attorney’s fees to $100, and the amount of $125 included in the verdict was, therefore, erroneous; but this can be corrected, as is requested by the plaintiffs in error in their brief, if the court should determine the other issues against them, and the judgment reformed; and it is directed that the judgment rendered in the court below be affirmed, except that the defendant in error taire judgment for the sum of $100 attorney’s fees, instead of the .sum of $125, which was, no doubt, a matter of inadvertence at the time of the rendition of judgment. Burwell, J., having presided in the court below, not sitting; all of the other Justices concurring.