114 Ark. 426 | Ark. | 1914
(after stating the facts). (1) The court should not have given the defendants leave to file a bill of review. To support a bill of review for newly discovered matter, the matter must be such as could not have been discovered by the use of reasonable diligence. Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203; Jackson v. Becktold Printing & Book Mfg. Co., 97 Ark. 415; Smith v. Rucker, 95 Ark. 517.
The defendants knew, or by the exercise of reasonable diligence could have known, that Hattie Davis had not acknowledged the deed of trust to H. J. Hale as trustee for W. P. Hale before the rendition of the decree by the chancellor in the fall of 1913.
In the case of Bennett v. Walker, 92 Ark. 607, this court quoted with approval from the case of Davie v. Davie, 52 Ark. 224, as follows: “In this case, while'the decree takes the form of a final order in adjudicating the parties’ proportionate interests in the land, it is apparent that the .court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land have been ascertained and determined, but the cause is retained with a reference to a master who is directed to report at a subsequent term, and the court is yet to determine, upon the coming in of the report, what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the litigation. ’7
In reference to the precisé question here involved, in 1 Ruling Case Law, § 57, p. 278, it is said: “The statutes relating to acknowledgments either in express language or by implication require the officer taking an acknowledgment to subscribe his name to the certificate, and it is imperative that this requirement be complied with. The insertion of the name of the officer in the body of the certificate — in accordance with the common practice to prepare the certificate in advance so that the officer has only to sign his name — will not be deemed to constitute his official signature so as to supply the omission to sign at the conclusion. The failure of the officer to affix his signature renders the certificate null and void as a general rule, and this although the certificate may have been attested by his official seal.”
To the same effect see Clark v. Wilson, 127 Ill. 449, 11 Am. State Rep. 143; Marston v. Brashaw, 18 Mich. 81, 100 Am. Dec. 152.
It is also contended by the appellants that if the deed of trust be construed as invalid, that the acknowledgment is cured by the curative act passed February 10, 1911. See General Acts of 1911, p. 12. We can not agree with them in that contention. That- act cures defective acknowledgments where words required by law to be in the certificate of acknowledgment have been omitted, or where the officer has failed or omitted to attach his seal of office to the certificate of acknowledgment. It does not purport to cure an acknowledgment where the name of the acknowledging officer was not subscribed to the certificate of acknowledgment.
It is also contended by counsel for the defendants that the deed of trust given to secure the indebtedness of Charles Davis to the Osceola Cotton Oil Company did not create a valid encumbrance on the homestead because the acknowledgment was taken by an officer and stockholder of the corporation. In a case note to Ardmore National Bank v. Briggs Machinery & Supply Company, 20 Okla. 427, 94 Pac. 533, 16 Am. & Eng. Ann. Cas. 133, 23 L. R. A. (N. S.) 1074, it is said that a majority of the decided cases is to the effect that a stockholder of a corporation has a beneficial interest in a mortgage given to the corporation in which he is a shareholder and that he is, therefore, disqualified from taking an acknowledgment of such mortgage. The reason given in most of the cases is that the taking of an acknowledgment is a quasi-judicial act, and that though a stockholder in a corporation has no independent ownership in the corporation, still he gets the benefit of an enhancement in the value of the corporate property by the increased value of his shares and that his holdings of stock may be so large that almost any transaction of the corporation may affect the value of his shares.
On the contrary, the rule in some of the States is that a shareholder of a corporation is not directly interested in the property of the corporation and the taking of an acknowledgment by him to ia deed or mortgage to the corporation of which he is a shareholder being strictly a ministerial act, is not invalid.
In 1 Euling Case Daw, section 41, 270, the author says that neither of these views expresses the true rule. We quote therefrom as follows: “The truth seems to be that no arbitrary rule will prove a safe test for determining in every instance whether .an officer is disqualified to act because of interest. The facts and circumstances of the case should be deemed of controlling importance, and the decision should proceed with reference thereto. Undoubtedly, it is unwise and contrary to public policy for an officer to take an acknowledgment to any instrument to which he is a party, or in which he is interested directly or indirectly. In any event, he should be disinterested and entirely impartial as between the parties. But arbitrarily to declare his act ipso facto void is repugnant- to sound principles of the law of evidence, ¡and in many cases must be productive of great hardship and injury. A more salutary rule declares that where there is no imputation or charge of improper conduct or bad faith or undue advantage, the mere fact that the acknowledgment was taken before an interested officer will not vitiate the ceremony or render it void, if otherwise it is free from objection or criticism. The fact of interest, however, ought to be regarded with suspicion and should provoke vigilance to detect the presence of unfair dealing, the slightest appearance of which the party seeking to uphold the acknowledgment should be required to clear away.”
The Supreme Court of Tennessee has held that an acknowledgment of a mortgage to a corporation taken by one of its stockholders is not void but is voidable, and will be set aside upon the slightest evidence of undue advantage, fraud or oppression arising out of such interest of the officer taking the acknowledgment. Cooper v. Hamilton Perpetual Building & Loan Assn., 97 Tenn. 285, 37 S. W. 12, 33 L. R. A. 338. There a husband and wife executed a mortgage to a corporation to secure payment of a loan. The acknowledgment was taken by a. stockholder and director of the corporation. There was no fraud practiced by the officer or the corporation. The court held the acknowledgment valid.
In the case of Green v. Abraham, 43 Ark. 420, we held that a party to a deed could not take an acknowledgment to it. The reason is that he is a party, and is directly interested in the transaction. We also held in the case of Biscoe v. Byrd, 15 Ark. 655, that the taking of an acknowledgment to a deed or mortgage belongs to that class of duties which are recognized by this and other courts as strictly ministerial. In the case before us, it does not appear from the face of the deed or of the certificate of acknowledgment that the officer before whom the acknowledgment was taken was a stockholder in the corporation.
From the views we have expressed it follows that the decree, in so-far as it ordered a foreclosure of the mortgage given to F. B. Halé as trustee for the Osceola Cotton Oil Company, will be affirmed; and that so much of the decree as ordered a foreclosure of the deed of trust given to H. J. Hale as trustee for W. P. Hale will be reversed and the cause remanded with directions to the chancellor to dismiss the complaint for want of equity.