97 Tenn. 285 | Tenn. | 1896
The defendant building and loan association in this case claims title to certain premises under the foreclosure of a deed of trust, executed by Cooper and wife, to secure a debt due the association. The complainants 'claim homestead in the premises, and the bill is filed to secure the same and enjoin the association from taking possession under their foreclosure proceeding.
The theory of the bill is, that the deed of trust which has been foreclosed was acknowledged before one E. Y. Chapin, a Notary Public, and that the acknowledgment is illegal and void, because the Notary, when he took the acknowledgment of the husband and wife, was a stockholder and director in the association and its attorney, and, being thus interested, he was incompetent to take the acknowledgment of any instrument made to or for the benefit of the association. The only question involved is whether an officer so interested is competent to take an acknowledgment, and whether this conveyance, so acknowledged, is valid, and passes the homestead of complainant.
The Chancellor was of opinion the acknowledgment. was invalid and the conveyance void as to the homestead, and so decreed, and defendant appealed and assigned error.
The cause was heard by the Court of Chancery Appeals, and the decree of the Chancellor was reversed, and complainants have appealed to this Court and assigned error, raising the question before stated.
Aside from the question whethér the act is ministerial 'or judicial, or both, in its character, it is
We have been cited to quite a number of cases in our own State which appear to sanction the holding that such an acknowledgment is not invalid, and among them the cases of Beaumont & Irwin v. Yeatman, 8 Hum., 542, and Tipton v. Jones, 10 Heis., 564. These cases simply involve the question whether a Deputy Clerk could take an acknowledgment to an instrument to which his principal was a party, or in which he was beneficially interested, and it was held proper for him to do so, because the deputy is a sworn officer and disinterested. Several unreported cases are also relied on, in which it is claimed this Court upheld such acknowledgments when the officers taking them were interested in or parties to t'he instrument, and such has been the holding of this Court. We think the true rule
It is certainly improper and bad policy for a Judge to preside or act in any case in which he is a party or interested or in which he is related to the parties who are interested, but the fact • that a judicial officer does so act in such case does not render the proceedings or judgments void or make either a nullity.
In Holmes v. Eason, 8 Lea, 754, this question was maturely considered, and an elaborate opinion was rendered by the Court, speaking through Judge Cooper, holding that a judgment rendered by a Justice of the Peace related to one of the parties within the prohibited degree is not void, but voidable only, and an execution issued on such judgment should not be quashed for that reason alone. The learned Judge reviewed the cases thoroughly, and, overruling those
We can see no error in the conclusion reached by the Court of Chancery Appeals, and the decree of that Court is affirmed with costs.