Musgrove v. Waitz

By the Court, Hawley, J. : This is an action to foreclose a mortgage executed by appellants. The appellant, Ann Waitz, in her separate answer, denied that she ever acknowledged the execution of said mortgage; that she ever knew the contents thereof, or' that the contents were ever made known to her. The only questions presented by this appeal, which are relied upon by appellants, relate exclusively to the sufficiency of the proof upon these points. The certificate of the notary substantially conforms to the provisions of the statute (1 Comp. Laws, 250-251). It is admitted that it makes out a prima facie case in favor of respondent, and that it was unnecessary for him to have introduced any other proof; but upon the trial he chose to introduce the notary before whom the acknowledgment was taken, and appellants claim that his testimony contradicts his certificate and establishes the facts in their favor. The notary testifies that he did not read the entire mortgage to Mrs. Waitz. This was unnecessary. The law only requires that. she should be “made acquainted with the contents.” The witness says he “ informed Mrs. Waitz of the contents of the mortgage before taking her acknowledgment.” He did not describe toiler the property mentioned in the mortgage by the number of the lots and block as named in the mortgage. It appears that the property mortgaged is in a compact body fronting on the north side of King street, in Carson, and lying between Curry street and an alley. The notary was upon the premises at the time of taking the acknowledgment and said to Mrs. Waitz that the mortgage was “ on all this property here.” Situated as the parties then were, this language of the notary must have been as clearly understood by her as if he had read the [79] description in tbe mortgage. He testified upon cross-examination that lie told Mrs. "Waifcz that tbe mortgage secured a note for 11500. He was very positive as to tbe amount. Upon bis re-examination be said: “I only bad an idea that sucb was tbe amount; upon examination of tbe mortgage now I find tbe amount is $3000, and is fully written out in words. Tbe amount named in tbe mortgage is wbat I told lier, and that is $3000.” In tbe course of bis testimony be said: “ All tbe averments in tbe certificate of acknowledgment to tbis mortgage are true.” Tbis testimony shows that tbe recollection 'of tbe witness was in some respects at fault, and required tbe introduction of tbe mortgage to refresh bis memory as to tbe actual facts. TVe apprehend there are very few of tbe officers authorized by law to take acknowledgments who could, after tbe lapse of two or three years, state from memory only tbe exact amount of every mortgage to which they bad attached their certificate of acknowledgment. Tbe fickle recollection of a witness, after sucb a period of time, is not entitled to any greater weight than bis certificate, under seal, given at tbe time of tbe occurrence. In tbis case tbe testimony not only fails to contradict tbe certificate of tbe officer in any essential particular, but in fact supports it upon every material point. Tbe judgment of tbe district court is affirmed.