Monroe v. Arthur
126 Ala. 362
Ala.
1899
Check Treatment
McCLELLAN, O. J.

This is a statutory real action prosecuted by Arthur against Monroe. Defendant claimed title under a mortgage purporting to have been exеcuted by plaintiff and his wife to Pratt Mines Building and Loan Association. The land at the time this paper wаs signed, acknowledged and delivered, constitutеd Arthur’s homestead. The 'separate acknоwledgement 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 grantеe corporation. At the trial tlie court held that this mortgage was invalid for that the separаte acknowledgement of the wife was madе before and taken by a person having such interest in the conveyance as disqualified him to рerform and discharge the judicial act he assumed to perform and discharge, and excluded the .instrument as evi*364dence in tlie cause; and thereupon plaintiff had judgment.

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 thе collateral attack made on it in this action. We do not think it shоuld 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 рaper could be assailed collaterally, as a mere incident to a procеeding 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 thаt the alleged deed be decreed to bе surrendered up and cancelled, etc., etc., and until cancellation is decreed in suсh, or other direct proceedings, the conveyаnce will be treated ‍​​​‌​‌‌‌​​​‌​‌‌​‌​​​​​​‌‌​​​‌​‌​​​​​​​​​‌‌​‌‌‌​‌‍by all courts/ as valid and еfficacious.

For the error committed by the circuit court in determining the invalidity of this mortgage upоn 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.