Polk v. Brown

117 Ark. 321 | Ark. | 1915

Hart, J.,

(after stating the facts). In the case of Donahue v. Mills, 41 Ark. 421, the court said that it was the settled doctrine of this court that though a wife may show against all the'world that she never made any acknowledgment at all, and that the 'certificate is either a forgery or an entire fabrication of the officer, yet if she has actually made some kind of acknowledgment before an officer qualified to take it, his certificate will be conclusive as to the terms of the concomitant circumstances, in favor of all persons, who, themselves, innocent of fraud or of collusion to deceive or influence her, have taken the instrument on the faith of the certificate. See, also, Petty v. Grisard, 45 Ark. 117.

In the case of Bell v. Castleberry, 96 Ark. 564, the court held that the .burden of showing that the certificate of acknowledgment of a deed was procured by fraud -or duress rests upon him who attacks such certificate, and that the evidence to sustain such charge of fraud or duress must be clear, cogent and convincing.

(1) In the case before us, it is admitted that the defendant was an innocent purchaser for value of the land, but, notwithstanding this, the plaintiff, under the authorities above cited, might show that she never signed or acknowledged the deed. This brings us to the question of how far the certificate of acknowledgment of the justice of the peace was conclusive. The certificate of acknowledgment was regular on its face, and was made out in accordance with the terms of the statute. In the case note to Ford v. Ford, 7 Am. & Eng. Cases, p. 249, it is said that the authorities are unanimous in holding that in order to impeach a certificate of acknowledgment, the evidence must be clear, cogent and convincing beyond reasonable controversy. In 1 Cyc., at page 623, it is also said that the testimony to impeach a certificate of acknowledgment must be clear and convincing. Many cases are cited, but an examination of the cases will show that the courts frequently fail to distinguish between those cases where the married woman actually appeared before an officer and made some sort of acknowledgment, defective though it may have been, and claims that the fact stated in the certificate are false and fraudulent, and those cases where the contention is made that the officer never acquired jurisdiction, power or authority because the married woman did not sign the instrument, and did net make any acknowledgment whatever before the officer. In our opinion, the weight cf 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 that one signed a deed or acknowledged it to show 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 guilty of a wrongful or criminal action. Tested by this rule, we think the decision of the chancellor was erroneous.

(2) The deed in question was executed by Henry Brown, husband of the plaintiff, on November 30, 1898. On the next day the grantees went to his house and carried with, them a justice of the peace for the avowed purpose of taking the plaintiff’s acknowledgment of her relinquishment of dower to the lands in question. The plaintiff testifies that she had on the previous day told her husband that she would not sign the deed. She denies that she ever had any other conversation with her husband in regard to the deed than the one just after the parties left the house. ' Her son attempts to corroborate her testimony, but his testimony contradicts hers in several respects, and especially in the point we have just mentioned. The record shows that the testimony of the plaintiff and her son was taken on the 13th day of September, 1913. The son testified that he was born on the 26th day of October, 1883. This would make him thirtA1years of age at the time he gave his deposition. The deed in question, was executed on the 30th day of November, 1898. His testimony, then, made him fifteen years of age at the time the deed was executed. At that age he might be capable of recalling what then occurred. It will be noted that both he and his mother testified that the land was to be preserved for him. He had a direct interest in the lawsuit. His mother testified that he was twenty-four years of age, and her testimony makes him nine years of age at the time of the execution of the deed. Her testimony as to his age is entitled to more probative force than his, and this is especially true, because her testimony may be considered as a declaration against her own interest. It is apparent that a child nine years of age would not be likely to remember fifteen years afterward matters which occurred at so early an age, iand this is especially true in view of the fact that they never lived on the land thereafter.

Another cogent circumstance is that afterward, Henry Brown became a justice of the peace, and as such took the acknowledgment of Redwine and Miller, in 1906, when they conveyed the land to Polk. The record shows that the plaintiff knew that Redwine and Miller thought she had signed the deed, and that she never made any attempt to disabuse their minds of this fact. She knew the land was sold in 1906 to Polk, and that the deed executed to Bedwine and Miller, and that executed by them to Polk had been placed on record. Her husband died in 1912, and Wells, the justice of the peace who certified to her acknowledgment, died about two years before this proceeding was instituted. When we consider all -of these facts and the contradictions between the testimony of the plaintiff, and that of her son, we .are of the opinion that the plaintiff did not discharge- the burden of proof which rested upon her, and that the finding of the chancellor was 'dearly against the preponderance of the evidence. In short, we are of the opinion that the testimony in this case is of too loose .and unsatisfactory a character to overcome the presumption of verity which attaches to the certificate of an officer properly certified in accordance with the statute. Therefore, the decree will be reversed with directions to the chancellor to dismiss plaintiff’s complaint for.want of equity.