130 Ark. 312 | Ark. | 1917
(after stating the facts). (1) This court has recognized that there is a difference between a case where a party admits the acknowledgment of a deed or mortgage, and claims that such acknowledgment was procured by fraud or duress and a case where the grantor denies that he or she ever acknowledged the instrument. It is always admissible to show that a grantor in a deed or mortgage never actually appeared before the officer purporting to have taken his acknowledgment, and that the grantor made no acknowledgment at all. Polk v. Brown, 117 Ark. 321. In that case the court said that where there is a claim that the grantor did not make any acknowledgment whatever before the officer, the weight of the evidence should not be affected by any particular yule peculiar to the subject, but that the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. The court said:
“In our opinion, the weight of the evidence should not be affected by any particular rule peculiar to the subject, but rather the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. This much may be said, however, under chapter 29 of Kirby’s Digest, a proper acknowledgment is an essential part of the execution of a conveyance. The acknowledgment is an official act done under an official oath and is protected under the presumption the law necessarily indulges in favor of the acts of its own officers. Under our statute, one of the means of evidence upon which a deed can be admitted to record is a certificate of proof or acknowledgment of an officer authorized by our statute to take such proof or acknowledgment. The burden of proof undoubtedly rests upon the person denying the falsity of the certificate which carries with it the usual presumption that the officer making it ■has certified to the truth, and has not been gulity of a wrongful or criminal action.”
(2) The notary or other officer before whom an acknowledgment is taken performs a very important duty when he takes and certifies an acknowledgment of a deed or any instrument affecting the title to real estate. For that reason great weight is given to his official act in certifying to the validity of such instruments. The impeachment of his certificate involves a charge of criminal violation of duty on the part of the certifying officer. This brings us to a consideration of the evidence on the facts in the case. Notice may be first taken of the fact that it is contended that Gordon, the certifying officer, was a 'stockholder in the bank, and on this account, under the rule announced in Davis v. Hale, 114 Ark. 426, his certificate does not import the same verity as the certificate of an officer who was not a stockholder in the corporation affected. In response to this argument, we are of the opinion that a preponderance of the evidence does not show that Gordon was a stockholder of the bank at the time he took the acknowledgment. It is true that at one place, the record recites that he was a stockholder at that time, and that he admitted snch to be the fact when he first testified. After refreshing his memory, however, he testified that while he had been cashier of the bank for many years and had formerly owned stock in it, that at the date of the acknowledgment he was not a stockholder in the bank. He said that he disposed of his stock and only held forty shares of stock belonging to his brother as collateral security for a debt which his brother owed the bank, and for which he was surety for his brother to the bank. At the time he testified, Gordon was not in any way connected with the bank, but was the receiver of the United States Land Office located at Camden, Arkansas. His explanation of the matter was reasonable and consistent, and there is nothing in the record which in our minds contradicts his explanation. Therefore, we are of the opinion that he was not a stockholder in the bank at the time he took the acknowledgment, and that his certificate of'acknowledgment is entitled to the same verity as would be attached to the certificate of any disinterested officer.
From the testimony set out in the statement of facts, we think it is fairly deducible that Gordon prepared the deed and delivered it to Gee on the second day of April; that Gee carried it home and after some words with his wife, procured her signature to it; that she became nervous after' signing the deed, and was confined to her bed for several days, and that the acknowledgment to it was not taken for several days after she had signed it; and that she acknowledged it of her own free will.
(3) It will be noted that it appears from the testimony of Gee and "White, both members of the firm, and of Gordon, the cashier of the bank, that the deed was prepared by Gordon and delivered to Gee on the second day of April, 1913. White said that Gee took the deed home with him and brought it back to the store and kept it for several days before it was delivered to Gordon to take the acknowledgment; that Mrs. Gee was sick for 'several days following the first day of April. The physician who attended her at that time also stated that she was in a very nervous condition. It is fairly inferable from all the circumstances that Mrs. Gee became very nervous when her husband first informed her that it was necessary to mortgage their home to secure the overdrafts at the bank. She admits that she knew the mortgage was given for that purpose. After signing the deed she became prostrated and was confined to her bed for a few days on account of her nervous condition. Her daughters think she was' confined to her bed for perhaps a week and say that they were constantly with her during that time, and she did not sign the deed. They were doubtless mistaken as to the length of time their mother was sick. The physician who attended her stated that her husband paid him $3.00 on account of attending her on the 4th or 5th of April, 1913. It is not likely that this payment was made until her husband at least thought that she no longer needed the services of a physician and the amount indicates that not more than one or two visits were made by the physician. So it may be said that she was not confined to her bed after the 4th, or, at the furthest, the 5th, of April. This fact is corroborated by the testimony of both Gee and White. They both testified that Gordon said that he would take Mrs. Gee’s acknowledgment over the telephone. White testified that the deed was kept in the store several days after it was first delivered to Gee before this conversation occurred. It is not at all probable that they would have acquiesced in Gordon’s calling her up over the telephone to take her acknowledgment if she had been confined to her bed or was sick. While Gordon states that his recollection is that he took the acknowledgment on the evening of the 2d, or the morning of the 3d, of April, it is fairly deducible from the circumstances before stated that he was mistaken in this regard. It is very likely that he filled in the date of the deed when he prepared it, thinking that it would be acknowledged at the time it was signed. As above stated, the deed was kept at the store by Gee for several days after it was signed before it was given back to Gordon for Mm to take the acknowledgment. Gordon then doubtless signed the acknowledgment leaving the date which had already been pnt in there when the deed had been prepared and delivered to Gee. It must be remembered that all the witnesses'who testified to impeach the acknowledgment were directly interested in the result. When all the facts and circumstances in evidence are considered in the light of each other, we think the learned chancellor erred in holding that the certificate of acknowledgment was impeached and that Mrs. Gee did not acknowledge the deed.
It follows that the decree must be reversed and the cause will be remanded with directions to dismiss the complaint for want of equity and to decree a foreclosure of the mortgage in conformity with the prayer of the cross-complaint.
