Alford v. Doe ex dem. First National Bank

DOWDELL, J. This is a common-law action of ejectment. The defendant disclaimed as to a part of the land sued for and pleaded not guilty as to the re — 439 — mainder. The validity of the mortgage, the foundation of the title relied on by the plaintiff for a recovery, is presented for onr consideration. The land in question was the homestead of the defendant, who was a married man. The husband and wife both signed the mortgage in the presence of one W. W. Wester, a notary public, who attested the same as a witness. The undisputed facts are that at the time of the signing of the mortgage by the defendant and his wife, and the attestation by Wester as a witness, no certificate of acknowledgement of either the defendant or his wife was made by the said Wester, as provided for in section 2034 of the Code of 1896; but the mortgage, as signed by the defendant and his wife and attested by Wester as a witness, was then and there delivered to the mortgagee, Griffith. Seven days subsequent to the execution and delivery of the mortgage as above stated a certificate of acknowledgement by the defendant, and one by the wife on privy examination in due form as prescribed by the statute, purporting to have been made by the said Wester as notary public, were attached to the mortgage. These certificates bore date of February 21, 1892, which was 10 years prior to the date of the mortgage; the latter bearing date of February 21, 1902. Wester, who testified as a witness for the plaintiff, swore on his examination that the signature to the certificate looked like his, and he thought it was his, but that he had no recollection of making the certificate, and, if he did make it, it was made some time after the mortgage had been delivered to Mr. Griffith (the mortgagee), and that it Avas either mailed or sent to Mr. Griffith ; that he (witness) did not “pin” it to the mortgage. The evidence is also undisputed that the defendant and his wife were never before the officer at any other time than on — 440 — the day of the signing and delivery of the mortgage for the purpose of an acknowledgment of their signatures to the mortgage. On the facts, the present case falls neither directly within the doctrine of the case of Monroe v. Arthur, 126 Ala. 362, 28 South. 476, 85 Am. St. Rep. 36, nor of Chattanooga B. & L. Association v. Vaught, 143 Ala. 389, 29 South. 215. In the former case, on the principle that the act of the officer in taking the acknowledgment, and making the certificate was in its nature judicial, it was ruled that the certificate, like the judgment of a court, could not for extrinsic matter be collaterally assailed, as was attempted in that case, when valid on its face. In the latter, the Vaught Case, while the attack was collateral, the question was one of the officer’s jurisdiction. Want of jurisdiction of the person by the officer rendered the judgment void, and open to be assailed collaterally as well as directly. The facts in that case are not fully set out in the reported volume, but on inspection of the original record we find that it was shown that the officer making the certificate never at any time had the party whose acknowledgment he certified to before him, or, in other words, never acquired jurisdiction of the party. The facts in the case before us present a question not involved in the two cases above mentioned; the question here being whether or not an officer, who attests a deed or mortgage as a witness, has authority under the law, after the execution and delivery of the conveyance to the grantee and at an indefinite time, to make and attach a certificate of the wife’s acknowledgment on privy examination, without having again had the wife before him for that purpose.' It is not denied that Avithout a valid certificate of the wife’s privy examination and acknoAvledgment, attached to — 441 — the mortgage conveying the husband’s homestead and made as required by the statute, the conveyance is absolutely void. There is an expression in the case of Cox v. Holcomb, 87 Ala. 589-592, 6 South. 309, 13 Am. St. Rep. 79, to the effect that the officer taking the acknowledgment may, during his continuance in office, voluntarily correct his certificate, or make a new one conforming to the statute, if the facts warrant. The principle stated, however, was not a question for decision in that case, and it has in later cases by this court been referred to as dictum, and disapproved as an erroneous statement of the law. In the case of Griffith v. Ventress, 91 Ala. 366, 8 South. 312, 11 L. R. A. 193, 24 Am. St. Rep. 918, where the certificate of the officer made and attached to the conveyance was defective, and the officer, without having the grantor before him for a reacknowledgment, attached a new certificate to the conveyance conforming to the statute, it was ruled that the second certificate was without authority of law, and therefore invalid. In that cas„e, after a review of the authorities, and disapproving the principle stated in Cox v. Holcomb, supra, and declaring the same to be dictum, this court, speaking through Coleman, Jr., said: “They [referring to the principles laid down as the law in that case] may work a hardship in some cases; hut they afford a much safer protection to titles than to leave such important interests to the voluntary action and uncertain memory of the officers authorized by statute to take acknowledgments and make the certificates. If he can add to a certificate, Avhy not subtract from it? If he caa make a .new certificate 4 years after the deed has been delivered and recorded why not 20 years after, and perhaps after parties and witnesses have died? If courts of law and equity are powerless to inquire into and determine the — 442 — correctness of these certificates, and change them in accordance with the real facts, it is difficult to perceive why such power should rest with the officer who made them. We hold that the second certificate was made without legal authority, and is invalid.” In Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241, the court, speaking through Walker, J., said: “This court, after a full consideration of the question, has decided that when a deed has been delivered to the parties, and has been accepted for record, or as the complete execution of the instrument, the officer before whom the grantors acknowledged it has no power to alter or add to his certificate, without a re-acknowledgment”- — citing Griffith v. Ventress, supra. Manifestly the conclusion rests upon the proposition that, after a completed execution of the instrument by a delivery to the grantee, the power and authority of the officer is terminated, without a reacknowledgment by the parties. In the case before us there was a completed execution of the instrument by a delivery of it to the grantee. S'even days thereafter a certificate in due form is “pinned” to the instrument, purporting on its face to have been made by W. W. Wester, notary public. The said W. W. Wester, who was introduced as a witness’by the plaintiff, and therefore vouched for by the plaintiff as worthy of belief, is positive that he did not attach the certificate to the instrument, and further says, while the signature looks like his, he has no recollection of having made it; and he further testifies that, if the certificate was made by him, it was not done at the time of the execution and delivery of the mortgage to Griffith, the mortgagee, but subsequent thereto, and that after the execution and delivery of the mortgage he (Wester) never had the parties before him for the purpose of acknoAvledgment. He further testifies positively and un — 443 — equivocally that he did not attach the certificate to the mortgage. This evidence is without dispute. Jt is true this witness testified, in answer to a question by the plaintiff, “Did you have the parties before you and question them about the mortgage note.” Again the witness was asked by the plaintiff: “If you made the certificate here shown, did you not examine the parties with reference to the mortgage note, and was the certificate made with reference to- said mortgage?” The witness answered: “I had the parties before me, and I examined them with reference to the mortgage, and the certificate, if I made it, was made with reference to this mortgage.” This witness, then further testified: “I am sure that at the time the mortgage was executed and delivered to Mr. Giffith I had no certificate of acknowledgment; that, if I made this certificate, I did not have the mortgage before me at the time I wrote it out, as it had been delivered to the mortgagee. I did not attach the certificate to the mortgage note. I have no recollection of making this certificate. If I made the certificate at all, it was made some time after the mortgage had been delivered to Mr. Griffith, and that the certificate was either mailed or sent to- Mr. Griffith. I do not know who pinned the certificate to the mortgage.” The original mortgage, with the certificate pinned to it, had been offered in evidence by the plaintiff and was excluded on the objection of the defendant; but, in connection with the testimony of the said Wester, it was again offered by the plaintiff, and admitted by the court, against the objection of the defendant. The original mortgage, Avith the certificate “pinned” to it, is certified under the rules to this court for our inspection. On the back of the mortgage is the indorsement of the probate judge showing that it was filed in his office on the 28th day of February, 1902, and recorded on the 4th day of — 444 — March, 1902. The certificate pinned to the mortgage had no indorsement of any nature on it. The plaintiff then offered in evidence a certified copy of the record of the mortgage, as stated in the hill of exceptions, “for the purpose of showing the said certificate made a part of the mortgage at the time of recording.” From all this evidence it affirmatively appears, and without dispute, that no certificate was made or attached to the mortgage until after the execution and the delivery of the same, and not until at least seven days afterwards, if then, and without ever recalling the parties before him for the purpose of re-examination and acknowledgment. As statetd above, the principle laid down and the conclusion reached in the cases of Griffith v. Ventress and Hodges v. Winston, supra, is based upon the legal proposition of the termination of the officer’s power and authority with the completed execution and delivery of the deed to the grantee. It is illogical to say that the officer who has had the parties before him and examined them for the purpose of taking their acknowledgment, and makes a certificate which is defective, cannot without recalling the parties before him, correct the defective certificate or make a new one, as was decided in the cases cited above, and yet, where he made no certificate at all, may, without recalling the parties, make and attach his certificate after the deed has been delivered. We are unable to see any merit in such a suggestion. The facts in the case before us serve to illustrate the soundness of the reasoning in the case of Griffith v. Ventress, supra, that it is unsafe to leave so important a matter as titles to land open to such uncertainty. Our conclusion is that the certificate, for the reasons above stated, was unauthorized by law, and, the land being the homestead of a married man, without a proper — 445 — certificate of the acknowledgment of the wife, the mortgage as a conveyance of the homestead ivas void. It follows that the judgment appealed from must be reversed. Reversed and remanded. Haralson, Anderson, and Denson, JJ., concur. Tyson, O. J., and Simpson, J., dissent.