93 F. 44 | 9th Cir. | 1898
The appellants, Franklin M. Berry and M. A. Berry, his wife, were defendants in the court below, to a suit for the foreclosure of a mortgage. A decree of foreclosure and sale having been rendered against them (89 Fed. 408), they bring the case here by appeal. The mortgaged property is described as lot No. 2, and the S, E. {- of the N. E. | and the N. W. of the S. E. J of section 6, in township 41 N., of range 5 W. of Boise meridian, situated in the county of Latah, state of Idaho, and containing 120.19 acres. The evidence in the case shows that, by mistake of the scrivener, the S. E. instead of the S. W. -J of the N. E. of the section of land mentioned was described in the mortgage. Both the S. E. and the S. W. i of the N. E. i of section 6 were; however, at the time of the execution of the mortgage, the common property of the appellants. One of the two points made on their behalf in support of the appeal is that it was error in the court below to decree a foreclosure and sale of the 40 acres of land inserted in the mortgage by mistake. The evidence shows that long prior to the • commencement of this suit the mistake was discovered by the appellants, and that subsequent to such discovery they mortgaged to another party the 40-acre tract which it was intended by the respective parties to include in the present mortgage, and in lieu of which the S. E. {■ of the N. E. (jr of section 6 was inserted. This fact probably accounts for the further fact that at no time — not even in the present suit — has there been any effort on the part of the appellants to reform the mortgage. This latter fact is a conclusive answer to the first point made on their behalf.
The only other point made on behalf of the appellants is that the1 mortgage is ineffectual, as against Mrs. Berry, because of the cér
“That the acknowledgment of a married woman to an instrument purporting- to be executed by her must not be taken unless she is made acquainted by the ofiicer with the contents of the instrument, on an examination without the hearing of her husband; nor certified to unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution.”
Section 2960 of the same statute provides that:
“The certificate of acknowledgment by a married woman must, be substantially in the following form:
“Territory of Idaho, County of --, ss.: !
“ ‘On this —— day of-in the year of-, before me, (here insert the name and quality of the officer,) personally appeared —-known to me (or proved to mo on the oath of---) to he the person'whose name is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and thereupon she acknowledged to mo that she executed the same, and that she does not wish to retract such execution.’ ”
The certificate of the notary public attached to the mortgage in question is as follows:
“State of Washington, County of Whitman — ss.:
“I, A. A. Kincaid, a notary public in and for said county and state, do hereby certify that on the 23d day of July, 1890, personally appeared before me Franklin M. Berry and M. A. Berry, his wife, to me known to be the individuals described in, and who executed, the within instrument, and acknowledged that they signed and scaled the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. And I further certify that I did fully apprise the said M. A. Berry, wife of the said Franklin M. Berry, of the contents of said instrument, and of her rights thereto, and the effects of signing the same, and that she did then freely and voluntarily, separate and apart from her said husband, sign and acknowledge the said instrument. Given under my hand and official seal this 23d day of July, 1890.
“[N. ¡P. Wash.] A. A. Kincaid,
“Notary Public Residing at Palouse City.”
A precisely similar certificate, except as to the names and dates, was held by the supreme court of Idaho to conform to the requirements of the Idaho statute, in the case of Bank v. Rauch, 51 Pac. 764; the court saying:
“The intent and purport of the statute are to protect the rights of a married woman from the dictation or domination of the marital companion. The end sought by the law is not to enable married women, either at the suggestion or dictation of their husbands, to perpetrate a fraud, by seeking to avoid, upon a mere technicality, what was, at the time it was made, a fair and honest transaction, the benefits of which have been received and enjoyed, either directly or indirectly, by the party seeking to avoid it. The statute does not require a literal, but a substantial, compliance therewith. If the certificate shows the acknowledgment to have been the free and voluntary act of the wife, uninfluenced by fear of, or duress by, her husband, andlb9t at the time of making the acknowledgment she was fully advised of the character of the, instrument she was executing-, and the effect of her act, and such acknowledge. ment was separate and apart, and without the hearing of her husband, we think the exigency of the law is fully met.” • ■ - ‘
