66 Ala. 600 | Ala. | 1880
The title of the house and lot here in controversy was originally in the husband of the appellant, one Zachariah Bogers, having been conveyed directly to him by deed. The wife, Jane A. Bogers, claims a secret équity in the property, which is based upon the alleged fact, that it was paid for with money belonging to her statutory separate estate, and that the husband wrongfully took the title in his own name.
The husband and wife both executed a mortgage upon it, on September 13,1866, to the appellee, Adams, upon a present consideration, which, on the same day, was acknowledged before W. G. Brewer, a justice of the peace. The evidence shows Adams to have been entirely ignorant of the wife’s
It is not claimed, or proved, that Adams, the mortgagee, was privy to, participated in, or was even aware of the alleged duress of Mrs. Eogers, by her husband. Conceding the truth of her averments in this respect, then, the case made would not authorise the impeachment of'the mortgage, or affect its validity as against an innocent grantee, who is ignorant of, and entirely free from complicity in the wrong. The authorities seem dearly to sustain the proposition, that the title of a bona fide purchaser, for value,- of property obtained by duress, is protected under such circumstances, and a fortiori where the attempt to reclaim is unreasonably derelayed. Bazemore v. Freeman, 58 Ga. 276. And this principle has been frequently held sound, as being applicable to cases where the husband has forced the wife, by threats or otherwise, to execute mortgages, or other conveyances, under a constraint destructive of her volition as a free agent.—Green v. Scravage, 19 Iowa, 461; Talley v. Robinson, 22 Gratt. (Va.) 888 ; Moses v. Dade, 58 Ala. 211.
The evidence shows, we think, that Adams was a bona fide purchaser for value, without any notice whatever, either of the alleged duress practiced on her by her husband, or of her secret equity in the mortgaged land ; and if this is true, he is fully protected against both. An innocent mortgagee, who parts with value in praesenti, or incurs an obligation to do so in futuro, as a consideration for the execution of the mortgage, stands, in the eyes of the law, precisely as if he were a vendee of the absolute title, and is entitled to equal protection.—Coleman v. Smith, 55 Ala. 369; Stone v. Bartlett, 46 Me. 439; Bump on Fraud. Conv. p. 477 ; Code (1876), §§ 2166, 2200. The appellee comes fully within the operation of this principle.
It is urged by the appellant, however, that the mortgage in question is void, because of the defective certificate of acknowledgment before the justice. At the time of this transaction, which was prior to the constitution of 1868, the formalities requisite for the conveyance of a homestead were not different from .those demanded by the statute for the valid conveyance of other real estate. — Bev. Code (1867), §§ 1535, 1544. Any land, whether occupied as a homestead or
It must be conceded that the justice’s certificate is not, in this case, in substantial compliance with the statutory form prescribed in section 1548 of the Revised Code. It fails to recite the material fact, that the grantor in the mortgage was Jtmoion to the officer ; and this defect was held to be fatal to the validity of an acknowledgment as such, in Merritt v. Phenix, 48 Ala. 87—a conclusion in which we fully concur, Yet it was decided in that case, and the principle was subsequently re-affirmed in Sharpe v. Orme, 61 Ala. 263, that such an acknowledgment may operate as a substitute for the attestation of a witness. The justice himself thus becomes a witness, and his signature an attestation, which was satisfactorily proved by his ow¿ deposition upon the hearing of the cause before the chancellor.
We think the mortgage to Adams was a valid conveyance, and the defenses set up to its enforcement must, for the above reasons, fail. The decree of the chancellor, so hold’ ing, is therefore affirmed,
