Parrish v. Russell

55 So. 140 | Ala. | 1911

DOWDELL, C. J.

In the case of Chattanooga National B. & L. Association v. Vaught, 143 Ala. 389, 39 South, 215, relied on as an authority in the case at bar by the appellant, the wife whose separate acknowledgment was certified to by the officer, was, as the evidence in that case tended to show, never personally present before the officer, and hence an element of jurisdiction was lacking, viz., the personal appearance of the wife before the officer. While the facts of that case are not reported in the published volumes, a reference to the original record shows the facts as above stated; besides we think the discussion in the opinion of that case of the question involved very clearly indicates what the facts were. In the cáse before us the evidence shows without dispute that in the taking the wife’s separate acknowledgment the jurisdictional facts existed. As was said in Freehold Land & Mortgage Co. v. Thornton, 108 Ala. 258, 19 South. 529, 54 Am. St. Rep. 148; “On these facts, viz., the presence of the officer for the purpose stated, the presence of the instruments themselves, the presence of the grantors for said purposes, and the signing of the papers then and there by them, the notary’s certificate of the acknowledgment of the husband and the separate acknowledgment of the wife are not open to impeachment by parol evidence; no fraud or duress being shown.” The rule here stated, following what was laid down in Grider v. Mortgage Co., 99 Ala. 281, 12 South, 775, 42 Am. St. Rep. 58, has never been departed from in this court. There is no conflict in principle between these cases and the Vaught Case, supra, and Russell v. Holman, 156 Ala. 436, 47 South. 205. The principle laid down in the last two mentioned cases is nothing more than a judgment rendered without jurisdiction of the person may be collaterally assailed.

We find no error in the record and the judgment is affirmed.

Affirmed.

Simpson, McClellan, and Mayfield, JJ., concur.