63 Cal. 286 | Cal. | 1883
The certificate of acknowledgment Avas defective, in that it did not state that the notary, upon an examination Avithout the hearing of her husband, made the married woman acquainted with the contents of the instrument. Section 1186 of the Civil Code requires that such separate examination must embrace as AAmll the making her acquainted with the contents of the instrument as the acknoAAdedgment by her; and section 1191 gives the form of the certificate in very plain language. The court, therefore, did not err in sustaining defendants’ objection to the admission of the mortgage in evidence.
When the acknowledgment is properly made, but defectively certified, a party interested may haAre an action to correct the certificate. (§ 1202, Civ. Code.) We see no objection to the joining this action with the action for foreclosure. The court should have permitted plaintiff to amend her complaint and prove, if she could, that the acknowledgment was actually taken in compliance Avith the statute, and have judgment correcting the certificate.
Judgment and order reversed and cause remanded for proceedings in accordance with this opinion.