51 P. 764 | Idaho | 1898
On .the twenty-first day of January, 1893, tbe defendants, A. Bauch and Margaret E. Bauch, his wife, executed. and delivered to the plaintiff, through its agent at Moscow, Latah county, Idaho, two promissory notes, for the sum of $500 each. Both of said notes bore interest at the rate of ten per cent per annum, and in each was a provision for the payment of an attorney’s fee of fifty dollars in case of suit thereon. At the same time said defendants executed and delivered to plaintiff, through its said agent, and for the purpose of securing the payment of said notes, a mortgage upon certain real estate, situated in Latah county, state of Idaho, for a like sum. Default having been made in the conditions of said mortgage, this suit was instituted to foreclose the same. The defendants, J. D. Hunter and Mollie Hunter, his wife, were joined as subsequent purchasers or encumbrancers, and made default. The answer of the defendants, A. Bauch and Margaret E. Bauch, denies the execution of the mortgages, denies the acknowledgment of the execution by either of them, and denies the ownership by plaintiff of the mortgage. • The answer also alleges that the real estate included in and encumbered by said mortgage was the separate property of the said Margaret E. Bauch. The execution of the promissory notes was admitted by defendants Bauch. Defendants also allege that said mortgage casts a cloud upon the title to said land described therein, and that by reason thereof the defendants have been unable to sell or dispose of the same, and have suffered damage in consequence to the amount of $300, and pray judgment for that amount, and also for a decree declaring said mortgage null and void. The case was tried before the court without a jury, and judgment rendered in favor of plaintiff for the foreclosure of the mortgage, from which judgment, and also from, an order and judgment of said district court dismissing s-aid action as to said defendants, A. Bauch and Margaret E. Bauch, this appeal is taken.
The first error assigned by appellants is the admission in evidence of a deed from defendant Bauch to J. D. Hunter, executed on the 8th of February, 1894. Defendants’ objection to the introduction of this deed was based upon the ground that it was “incompetent, irrelevant and immaterial.” We think
As appellants apparently do not insist upon the second error assigned, we pass it; simply saying that we do not consider it well taken. We think the evidence of Grierson was properly admitted.
The third assignment of error is based upon the admission in evidence of the mortgage sued upon, for the reason that the certificate of acknowledgment thereon was hot in substantial compliance with sections 2921, 2922 and 2960 of the code of this state. Said certificate is as follows: .. ■
“I, L. F. Williams, a notary public in and for the said county and state, do hereby certify that on this thirtieth day of January, 1893, personally appeared before me A. Bauch and Margaret E. Bauch, his wife, to me known to be the individuals described in, and who executed, the within instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. And I further certify that I did fully apprise the said Margaret E. Bauch, wife of the said A. Bauch, of the contents of said instrument, and of her rights thereto, and the effect of signing the same, and that she did then, freely and voluntarily, separate and apart from her said husband, sign and acknowledge said instrument. Given under my hand and official seal this thirtieth day of January, T893.
“[Seal] L. F. WILLIAMS,
Notary Public.”
We think this certificate is in substantial compliance with the provisions of our statutes. Section 2960 of the Bevised Statutes of Idaho, is as follows:
*756 “Territory of Idaho,
County of-,
“On this-day of-, in the year of- — , before me [here insert the name and quality of the officer] personally appeared-, known to me (or proved to me on the oath of-) to be the person whose name is subscribed to the within instrument, described as a married woman, and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and thereupon she ácknowledged to me that she executed the same and that she does not wish to retract such execution.”
The intent and purpose of the statute are to protect the rights of a married woman from the dictation or domination of the marital companion. The end sought by the law is not to enable married women, either at the suggestion or dictation of their husbands, to perpetrate a fraud, by seeking to avoid, upon a mere technicality, what was, at the time it was made, a fair and honest transaction, the benefits of which have been received and enjoyed, either directly or indirectly, by the party seeking to avoid it. The statute does not require a literal, but a substantial, compliance therewith. If the certificate shows the acknowledgment to have been Ihe free and voluntary act of the wife, uninfluenced by fear of, or duress by, her husband, and that at the time of making the acknowledgment she was fully advised of the character of the instrument she was executing and the effect of her act, and such acknowledgment was separate and apart, and without the hearing, of her husband, we think the exigency of the law is fully met. (See Schley v. Car Co., 120 U. S. 575, 7 Sup. Ct. Rep. 730; Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267, and the cases there cited.) In Belcher v. Weaver the court says: “The general rule upon this subject is that there must be a substantial, though not literal, compliance with the terms of the statute, and that, although words not in the statute are used in the place of others that are, .or words in the statute are omitted, yet, if the meaning of the words used is the same, or they represent the same fact, or if the omission of a word or words is immaterial, or can be supplied by a reasonable and fair construction of the whole
While it may be concluded to be the rule that the officer taking the acknowledgment will not be permitted to impeach or deny his own certificate, we do not find that it has ever been.
The granting of the motion of plaintiff to dismiss the action as to the defendants, A. Bauch and Margaret E. Bauch, the only defendants before the court, and who had by their answer sought affirmative relief, was error. This action of the court is not supported by any authority we have been able to find, and is so repugnant to principle, besides being in derogation of the statute, that we do not feel called upon to discuss it. The judgment of the district court is reversed, and the cause remanded, Avith instructions to the district court to overrule the motion of plaintiff to dismiss the action as to defendants, A. Bauch and Margaret E. Bauch, and for further proceedings in accordance with this opinion.