158 Ark. 314 | Ark. | 1923
(after stating the facts). According to the allegations of the complaint, Lissie Jerry, the wife of A. A. Jerry, never acknowledged the lease before W. G. Grace, a notary public, or any other officer. Oral evidence was introduced to overcome the certificate of acknowledgment, and counsel for the defendant contend that, in order to overcome the certificate of acknowledgment, the evidence must be clear and convincing beyond reasonable controversy. They have cited authorities in support of their contention; but we do not deem it necessary to discuss or to review them, for the question has already been settled by this court.
In the case of Polk v. Brown, 117 Ark. 321, the court held that the burden of proof rests upon the person denying that he signed a deed or acknowledged it to show the falsity of the certificate of acknowledgment; but that the weight of the evidence should not he affected by any particular rule peculiar to the subject. The holding in this ease has been followed in Nevada County Bank v. Gee, 130 Ark. 312, and Straughan v. Bennett, 153 Ark. 254.
Counsel for the plaintiffs admit this to be true, but contend that these cases are contrary to the ruling in our earlier cases on the subject, and insist that they be overruled. We cannot agree with counsel in their contention. This court has uniformly held that where a grantor appears and makes some kind of acknowledgment before an officer authorized by law to take such acknowledgment, the recitals of the certificate of such officer, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. Bell v. Castleberry, 96 Ark. 564.
A different question presents itself in the case of a certificate of acknowledgment alleged to have been forged. A proper acknowledgment is an essential part of the execution of a conveyance of land, and it is competent for the grantor to show the falsity of a certificate of acknowledgment. Where the- grantor never appears before an officer to acknowledge the deed and the officer makes a false certificate that the grantor did appear, his act is wholly without authority of law, and void. Every one must be subject to the risk of forgery by officers authorized to take acknowledgments. No one can claim that an estate in land should be divested by forgery, and the forgery need only be established by a preponderance of the evidence. This rule was recognized in Watson v. Billings, 38 Ark. 278, and Meyer v. Gossett, 38 Ark. 377.
In the first mentioned of these cases the court held that an officer’s certificate of the grantor’s acknowledgment of the execution of a deed is not evidence of the execution unless the deed and certificate have been filed for record. In that case a suit for dower was defended on the ground that dower had been duly relinquished during the husband’s lifetime, and that therefore the widow was not entitled to dower. The widow testified positively that she did not sign the release of. dower and acknowledge it. The justice was equally positive that she did. The deed had not been filed for record. Hence the court held that the burden was on the defendant to show that the widow had relinquished dower. The court seems to have decided the case on the preponderance of the evidence, and nothing was said about requiring it to be clear and convincing.
In the last mentioned case the facts were different. The deed had been filed for record, and the wife admitted that she had signed the deed and had gone with her husband to the house of the justice of the peace for the purpose of acknowledging it. She stated, however, that the justice asked her no questions and did not examine her apart from her husband. The chancellor •found, as recited in the decree, that her acknowledgment was taken by the justice without making the privy examination in the absence of her husband, as required by law. The chancellor did not find that the wife did not acknowledge the deed at all. Hence it was a case of a defective acknowledgment. The wife actually appeared before the justice of the peace for the purpose of acknowledging the deed. Her husband was with her, and handed the deed to the justice, saying that he and his wife had come to acknowledge it. Under these circumstances the court properly held that there was an acknowledgment by the wife, defective though it may have been. Hence the case called for the application of the rule that the testimony to overcome the certificate of acknowledgment must have been clear and convincing.
It is easy to procure an appointment as notary. The notary’s certificate entitles the instrument to registration, and land titles would be insecure if the owner was required to prove by clear and convincing evidence that the instrument was a forgery. The deed having been registered, the burden of proof was upon the party seeking to impeach the certificate -of acknowledgment. Where the wife does not -appear before the officer at all to acknowledge the deed, although he may certify that she did, she may show that she did not appear and acknowledge the deed, and thus show that the instrument is not genuine.
This brings us to a consideration of the question of whether or not the forgery of the acknowledgment has been established by a preponderance of the evidence.
We think that the learned chancellor erred in holding that the plaintiffs made out their case. It is true that both the husband and the wife testified in positive terms that she. did not acknowledge the lease. They both admitted, however, that she signed it, and seek to avoid it on the ground that she did not acknowledge it. In this connection it may be stated that, under our statute, no conveyance or other instrument affecting the homestead shall be of any validity, except in certain enumerated cases, unless the wife joins in the execution of the instrument and acknowledges it. Sec. 5542 of Crawford & Moses’Digest.
It does not appear from the record whether or not the plaintiffs knew that the lease on their homestead could not be effective unless the wife acknowledged it; but it does appear that they knew that the notary carried the lease away with him after they say the wife refused to acknowledge it. It was duly filed for record the next day, and no explanation is offered by the plaintiffs why they waited for a year for the defendant to begin work on the lease if they knew that the lease was void because the wife had not acknowledged it. Hence it will be seen that their testimony is not in all respects consistent.
As we have already seen, the burden of proof was upon them to show the falsity of the certificate, which carried with it the presumption that the officer making it had certified to the truth and was not guilty of forgery. In addition to the prima facie case made by the certificate of acknowledgment, we have the positive testimony of the notary and of another person accompanying him that the wife did acknowledge the lease.
An attempt is made to contradict their testimony by showing that there ivas no window opening on the gallery, and that therefore the testimony of one of the witnesses was false when he stated that he was on the gallery and heard the wife acknowledge the execution of the lease in the house through the window. The apparent contradiction is immaterial, for it may have been that he heard her through the open door. The material point is that both of them testified in positive terms that the wife did acknowledge the lease. She admits that she signed it- at the request of her husband, and permitted them to carry the lease away without protest. The delay in bringing suit is inconsistent with the testimony of the plaintiffs to the effect that the wife absolutely refused to acknowledge the lease after signing it.
"When all the attending circumstances are considered, we think that the chancellor erred in holding that the testimony of the plaintiffs was sufficient to show that the lease had not been acknowledged by the wife, and that the certificate of acknowledgment was therefore a forgery.
It follows that the decree will he reversed and the cause remanded, with directions to dismiss the complaint for want of equity.
