126 Ala. 362 | Ala. | 1899
This is a statutory real action prosecuted by Arthur against Monroe. Defendant claimed title under a mortgage purporting to have been executed by plaintiff and his wife to Pratt Mines Building and Loan Association. The land at the time this paper was signed, acknowledged and delivered, constituted Arthur’s homestead. The 'separate acknowledgement by Mrs. Arthur of her signature, etc., etc., to the conveyance was taken by T. H. Moore, a notary public, who was then a stockholder in and the secretary and treasurer of the grantee corporation. At the trial tlie court held that this mortgage was invalid for that the separate acknowledgement of the wife was made before and taken by a person having such interest in the conveyance as disqualified him to perform and discharge the judicial act he assumed to perform and discharge, and excluded the .instrument as evi
That the conveyance is invalid and to he so declared upon proper attack has been determined by this^ court in the case of Hayes v. Building & Loan Association, 124 Ala. 663; and the only question now presented is whether it should have been held void upon the collateral attack made on it in this action. We do not think it should have been so held. The deed was not void on its face, but only because of extrinsic facts resting in parol. These extrinsic facts did not involve any matter for which the execution of the paper could be assailed collaterally, as a mere incident to a proceeding prosecuted for a purpose other than the cancellation of the instrument. In such case the infirmities inhering in the execution of the mortgage can be shown only upon a direct attack on its validity, by which is intended some proceeding begun and prosecuted for the express purpose of having the conveyance adjudged void and cancelled, as, for instance, a bill in chancery setting up the facts as to the notary’s incapacity, and praying that the alleged deed be decreed to be surrendered up and cancelled, etc., etc., and until cancellation is decreed in such, or other direct proceedings, the conveyance will be treated by all courts/ as valid and efficacious.
For the error committed by the circuit court in determining the invalidity of this mortgage upon an objection to it as evidence in this action for the recovery of the land, the judgment must be reversed. The cause is remanded.
Reversed and remanded.
