Dickerson v. Davis

12 Iowa 353 | Iowa | 1861

Wright, J.

The mortgage was offered in evidence, and objected to for the reason that the acknowledgment did not show that “ it was the free and voluntary act of the mortgag- or.” The acknowledgment is full and complete in all its parts, except that the word “his” is omitted before “free.” From the record, we should judge that the notary had a printed form, and in filling it up failed to insert this personal pronoun, there being a space left therefor in the acknowledgment. It is very manifest, however, that the mortgagor acknowledged the instrument to be his free and voluntary act, and not that of another; and equally clear that the acknowledgment was by Davis, the proper party and not by a third person. The statute requires, among other things, that the certificate shall show that the party acknowledged the instrument to be his voluntary act and £deed. This may be shown, however, by the tenor and form of the certificate, so as to admit the instrument to record and impart constructive notice thereof to third persons, as well as by the use of the very words, and all the words of the statute. Of this character was this certificate, and there was no error, therefore, in overruling the objection to the evidence. Bell v. Evans, 10 Iowa 353; Wickersham v. Reeves and Miller, 1 Ib. 413; Pickett v. Doe, 5 Sm. & M. 470 ; Owen v. Norris, 5 Blackf. 479; Vance v. Schuyler, 1 Gilm. 160 ; Merriam v. Harsen, 2 Barb. Ch. 232.

The form of the decree as to the equity of redemption and ordering the sale, is not in conflict with the statute. See subject discussed in Duncan v. Hobart et al., 8 Iowa 337 ;

The decree is excessive to the amount of $18.33. Modified in this respect, and affirmed ; appellee paying the costs of appeal.