New England Mortgage Security Co. v. Payne

HARALSON, J. 1. The case was tried on the plea of the general issue. There seems to have been a special plea interposed, to which plaintiff filed three replications, but what that plea was, we are not definitely informed. The first replication purports to be one to a plea “denying that the plaintiff, at the commencement of this action was seized of the legal title to the land described in the complaint.” They each proceed upon the idea, that defendant had pleaded in one or more pleas, that the lands mortgaged lay in Marshall county, and that, while the mortgage purports to have been acknowledged before a justice of the peace in Blount county, yet, in fact it was acknowledged in Marshall, before a justice of the peace of Blount county, who went into the former county, to take its acknowledgment, and that, therefore it was void; for, the force of the plea, if true, is sought to be avoided by the averments in the replications, that the defendant represented to plaintiff, at the time the loan was made, that the mortgage was executed in Blount, and he was estopped to deny that fact. The replications also convey the suggestion, that the special plea or pleas contained the defense, that the lands mortgaged were the homestead of the defendant, and the mortgage was void, since the wife of the defendant acknowledged the same separate and apart from her husband, in Marshall county, before a justice of the peace appointed for and residing in Blount county, who came to the former county to take such, acknowledgment. It is impossible to pass intelligently on the demurrers to the replications to the special pleas, without having the pleas before us, and we decline to undertake it, further than to repeat what we have heretofore decided, that if a justice of the peace for one county goes out of his own into another county and takes the acknowledgment of a married woman to a deed purporting to convey her homestead, the conveyance would be void as to the homestead. It is competent to show this fact by parol, though it may appear to the contrary on the face of the [584] acknowledgment; and the representations of the defendant that it was acknowledged in the county of the residence of the justice of the peace would not estop him from proving by parol that the acknowledgment was taken in another county. — Edinburgh Am. Land Mort. Co. v. Peoples, 102 Ala 241. 2. The mortgage was on 400 acres of land. It purports to have been executed in the presence of two witnesses, besides having been acknowledged before a Blount county justice of the peace. The defendant did not pretend to set up any defense to more than 160 acres of the land, and to that, on the ground that the mortgage had not been acknowledged by his wife in the manner required by statute to pass the homestead. As against a recovery for the balance, — admitting his homestead claim, — he has said nothing, except to claim that if the mortgage was void as to the homestead, it would be as to the other 240 acres. But such is not the law. It would not sanction a claim so unjust. Strauss v. Harrison, 79 Ala. 324, 327. 3. The defendant, Payne, testified for himself that the papers, — ^mortgage and notes, — were executed by himself and wife at his house in Marshall county, and it was there, that their acknowledgments to them were taken before the justice of the peace from Blount county. The plaintiff moved to exclude the statement of the witness, “as to the residence of the justice of the peace, and as to where the acknowledgments were taken, on the ground and for the reason, that the same contradicts and varies written testimony on file in the cause ; because the statements of the witness show that Payne and his wife appeared before the justice of the peace for the purpose of acknowledging their signature to said mortgage,” and did acknowledge it, and the certificate of the justice importing verity could not be contradicted or varied by parol evidence, and because defendant is es-topped to deny the validity of the mortgage and the certificate of the justice taking the acknowledgment. The court overruled the motion to exclude. As for the objections raised, there was no error in overruling the motion. It was competent to show by parol, that the justice who took the acknowledgment in Marshall county lived in Blount. — Edinburgh Am. Land Mort. Co. v. Peoples, supra. [585] 4. After this, the defendant moved the court to exclude the mortgage which had already been read in evidence, without objection on the part of defendant, on the ground that the same had not been proved as required by law, and was illegal evidence, which motion was sustained against the objection and exception of the plaintiff. In this ruling the court erred. There were 240 acres of the land, as to which, as we have seen, the defendant offered no defense; and he had sworn voluntarily, that he and his wife had executed the mortgage. In the beginning the plaintiff had been allowed without objection, to introduce the mortgage, without proving its execution. If objection had been raised, the plaintiff would have been required to prove its execution by one of the two subscribing witnesses, if living , competent and within the reach of the court. — Russell v. Walker, 73 Ala. 317 ; Askew v. Steiner, 76 Ala. 221; Coleman v. The State, 79 Ala. 50. But, the defendant waived this right, and testifying for himself, proved the execution of the mortgage. For the errors suggested the judgment of the court below is reversed. .Reversed and remanded.