67 So. 260 | Ala. | 1914
Lucy Hill instituted this action in statutory ejectment against Adolph Butler, to recover four acres of land. The land formerly belonged to Lucy, having come to her through her husband, Warren Hill. Butler’s reliance for right and title to the land is a deed, purporting to have been executed, by mark, by her to him on August 9, 1906, and attested by B. C. Tarver and H. S. Houghton, and acknowledged according to the form prescribed by law before Tarver, as justice of the peace. Tarver died before the trial below. Lucy asserts that this instrument was and is .void, and so on two grounds, as we interpret the contentions from the evidence: (a) That she did not sign the paper — that the acknowledgment is false; (b) and, failing herein, that she was induced by the fraudulent scheming and misrepresentations of Butler to- execute the instrument.
But, at the same time, this court expressed, with like consummate caution and comprehension of the importance and relation of the injury, the hazard and injustice of a rule that would clothe an officer with too great power in the premises, when it said: “* * * Yet on the other hand, we perceive the manifest injustice of a rule which would deprive one of his property, without his knowledge or consent, upon the mere baseless fabrication of another.”
The departure from the rule of the earlier cases mentioned was fundamental and brought the court to the view that the taking of acknowledgments of conveyances by an officer so authorized was not a ministerial act, but an act judicial in nature. At first the court, upon occasion,- characterized the power thus exercised as either judicial or quasi judicial. However, the more recent expressions of this court have deliberately defined the nature of that power as judicial, without qualification. From this premise the necessary result was, as the court had often ruled, to visit upon the act, by an officer so authorized, in taking an acknowledgment, the rules of law usually applicable to the consideration of acts and processes judicial in the ordinary sense in which this power manifests itself in judicial matters. ■The position of -this court, established by deliberate and cautious consideration, appears not to be in accord with
The nature of the act of taking an acknowledgment of conveyances being judicial, the necessary consequences is that this court has affirmed and enforced the doctrine that where an officer authorized to take and certify acknowledgments acquires jurisdiction in the given case to do so, and certifies the facts and acts so taking place in the form and as the law prescribes, the certification thus made can only be contradicted or impeached on the ground of fraud or duress. So we have come to the doctrine that may be thus stated in legal formula: Parol evidence is only admissible, in such circumstances,- to show: First, the absence of jurisdiction of the officer to take the acknowledgment questioned in the concrete case; and, second, that fraud or duress affected the. process of giving and taking the acknowledgment.
Now what are the elements of this jurisdiction, when authoritatively exercised? As the logical, sequential result of the premise afforded by the judicial character of the act of taking and certifying an acknowledgment —a result that by steady, sound progression in well-considered adjudications here has been attained — this concise statement taken from Orendorff v. Suit, 167 Ala. 564, 565, 62 South. 744, of established doctrine, as respects jurisdiction to act and certify, is the law with us: * * When the certifying officer acquires jurisdiction by having the grantor and the instrument to be acknowledged before him, and enters upon the exercise of his jurisdiction, the resulting certificate is conclusive of the truth of all those facts therein stated which the officer is authorized by law to state. * * * The mere casual presence of a putative grantor and the possession of an instrument purporting to have been signed are not sufficient to confer jurisdiction.”
In addition to the decisions noted in the opinion quoted, these, subsequently delivered, are, in principle, in accord: Byrd v. Bailey, 196 Ala. 452, 53 South. 773, Ann. Cas. 1912B, 331; Parrish v. Russell, 172 Ala. 1, 55 South. 140; Freeman v. Blount, 172 Ala. 655, 55 South. 293; Gilley v. Denman, 185 Ala. 561, 64 South. 97. In the last decision a distinction was taken, whereupon it was affirmed that the regularly certified acknowledgment, before an officer so authorized, did not preclude parol evidence to show that the acknowledgor did not execute the conveyance voluntarily, though such an one did acknowledge before the officer that its exe
While, as said in Gilley v. Denman, 185 Ala. 651, 64 South. 97, upon invitation of the facts there shown, ’fit is not essential to the impeachment of a certified acknowledgment that the certifying officer should participate in the fraud or duress practiced upon the grantor,” yet, under the evidence here recorded, it was, if the acknowledgment was to be invalidated, inevitable that the officer should have lent himself, as an officer, to the not only false certification of facts, but also' that
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.