95 N.J. Eq. 102 | New York Court of Chancery | 1923
This is a bill to foreclose a deed of mortgage given by a married woman, on her separate estate, to secure her husband’s obligation. The defense is that the instrument was not acknowledged by her as required by the statute, and that the certificate of acknowledgment, in due form, attached to the document and executed by a New York notary, is untrue. It is settled law that a statutory acknowledgment, duly certified, is an essential part of a married woman’s deed to convey her lands. Brady v. McHugh, 94. N. J. Eq. 336. Section 39 of the act concerning conveyances as amended (P. L. 1918 p. 119) provides that:
“No estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her deed or conveyance without a previous acknowledgment made by her before one of the officers mentioned in the twenty-second, twenty-third and twenty-fourth sections of this act, as the case may be, that she signed, sealed and delivered the same as her voluntary act and deed, such officer being satisfied that she is the person named in such deed or conveyance and 'having first made known to her the contents thereof, and a certificate thereof written on, or under, or annexed to the said deed or conveyance, and signed by the officer before whom it was made,’’ &c.
It is also well settled that the certificate of acknowledgment is only prima facie evidence of its contents, and that it may be shown to be untrue. Wright v. Wells, 12 N. J. Law 131;
The testimony satisfies me that the cenificate is untrue. Whether it was procured by the fraud of Steer or voluntarily made by Keelen to accommodate Steer, the deed is a fraud upon Mrs. Steer and a fraud upon the record.
In three of the four cases in this state brought to my attention, in which the certificates were attacked because untrue, the proofs were inconclusive 'and therefore insufficient to overcome the presumption created by the certificate. Tooker v. Sloan, 30 N. J. Eq. 394; Black v. Purnell, 50 N. J. Eq. 365; Gould v. Hurley, 75 N. J. Eq. 512. In Brady v. McHugh, supra, Vice-Chancellor Fielder found the certificate to be untrue and invalidated the mortgage.
At the trial Treacy, the Newark notary, subscribed to a new certificate, drawn conformable to the statute, and annexed to the deed. This is not curative. Delivery of a deed is essential to the passing of title to land, and the statute relating to acknowledgments of deeds by married women requires a previous acknowledgment and that the certificate accompany delivery. Furthermore, the notary was without authority at the'time to make the certificate. In 1 Corp. Jur. 871, it is said that “according to the weight of authority, where the officer has certified the acknowledgment, and the instrument has passed from his custody, his powers are exhausted and, in the absence of. statutory authority, he cannot thereafter correct the certificate or make a new one without a reacknowledgment by the grantor.” The text is supported by the authorities cited. In Bours v. Zachariah, 11 Cal. 281, one of the cases cited, the subject is learnedly discussed by Justice Baldwin of the California supreme court, in which Justice Field, afterwards of the United States supreme court, concurred. The conclusions are concisely set
The bill will be dismissed as to Mrs. Steer. There may be a decree as against Mr. Steer and his inchoate right of curtesy. Armstrong v. Ross, 20 N. J. Eq. 109, 120; Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301. This execution will be withheld until the curtesy becomes consummate. This meager relief may be rendered altogether nugatory. Bucci v. Popovich, 93 N. J. Eq. 121; affirmed 511.