Russ v. Wingate

30 Miss. 440 | Miss. | 1855

HANDY, J.,

delivered the opinion of the court.

This was a bill in chancery to foreclose a mortgage, alleging that the complainant, now the appellee here, sold certain property to the appellants, Russ and wife, who executed their promissory notes to the complainant for the purchase money, and to secure the payment thereof, gave a mortgage upon certain slaves and real estate. The acknowledgment of this mortgage is in form as follows :—

“ The St'ate of Mississippi, 1 Hancock county. /

i£ At Pearlington, in said state and county on the 14th day of March, A. D., 1854, then personally appeared the above named Edwin E. Russ, and Cornelia Russ his wife, and severally acknowledged the foregoing instrument to be their act and deed: that they signed, sealed and delivered the same to the said David R. Wingate, the day and year therein mentioned. And the said Cornelia, wife of the said Edwin E. as aforesaid, who on a private examination by me made, separate and apart from her husband, acknowledged that she did so voluntarily without any fear, threat or compulsion of her said husband: before me. Given under my hand and seal, this the day and year above written.

Lewis Y. Eolsom, J. P. H. C. [seal.]”

The appellants demurred to the bill; and the demurrer being overruled, this appeal was taken, and several of the grounds of demurrer are presented for consideration.

The first objection taken to the bill is, that it alleges that the property was sold to Russ and wife, who executed their notes for the purchase-money, and then the mortgage to secure the same: that the notes being void as to the wife, and being shown in the bill to be the joint notes of the husband and wife as the foundation of the mortgage, no right of recovery upon the contract as stated, is shown.

But we do not consider this view tenable. In law, the notes were joint and. several, and though void as to the wife, were valid as to the husband. Their legal effect will not be impaired by the allegation of the bill that they were the notes of the husband and wife, when in law they were valid only as to the husband. Such effect must be given them as they had by law. If they were obligatory upon him, it was competent for the wife to unite with him in a mortgage of her separate property to secure them, considering the property conveyed by the mortgage in question -as her separate estate, which does not appear by the record. This is settled by this court in James v. Fisk, 9 S. & M. 144; Sessions and Wife v. Bacon et al., 28 Miss. 272.

The other grounds of objection are founded on the alleged insufficiency of the certificate of acknowledgment written upon the mortgage.

The first of these is, that it does not appear in or by the certificate that the acknowlegment was made before any officer. The statute merely requires that the acknowledgment must be made before any one of the officers mentioned in it, and that “ a certificate thereof must be written on or under the deed or conveyance, and signed by the officer before whom it was made.” It is not provided that the certificate shall contain a description of the office of the person taking the acknowledgment, nor is any mode of showing his official character prescribed. It may, therefore, be shown either in the body of the certificate, or by additions and descriptions attached to his signature. If it appear by the latter mode, it is sufficient if it be done in such manner as to render the description of the officer plain and easily intelligible. And abbreviations may be used, if in general understanding their import be known and fixed. Duvall v. Covenhoven, 4 Wend. 561. The abbreviations here used are in very general use, and it may be safely said that there are few persons, capable of reading and writing, who did not understand the letters J. P., to signify justice o’f the peace.

But in addition to this, it has been held, and with good reason, that when the official character of the person taking the acknowledgment is not shown by the certificate, it may be shown by proof aliunde. Rhodes’ Lessee v. Selin, 4 Wash. C. C. R. 718; Jeffreys v. Collis, 4 Dana. 470. And it would, therefore, be competent at least to explain upon the hearing of the cause, that the abbreviations added to the certificate were intended to signify “ Justice of the Peace of Hancock County,” on the ground of latent ambiguity.

The second objection is, that the certificate does not show that the requisites in order to a valid acknowledgment by the wife were complied with.

The substance of the certificate is, that on a specified day the husband and wife appeared and severally acknowleged that they executed the instrument as their act and deed, and that the wife, on a private examination, apart from her husband, acknowledged “ that she did so” voluntarily, without any fear, threats or compulsion of her husband. It is assumed in argument, in behalf of the appellant, that tbe first part of this certificate shows that the bus-band and wife appeared together, and acknowledged the execution of the deed, and that the subsequent statement, that upon private examination, she acknowledged that she did so voluntarily, &c., means that she privately admitted that the acknowledgment previously stated as having been made in the presence of her husband, was made voluntarily, &c. If this construction were a just one, it is by no means clear that it would render the certificate insufficient.1 For it would show an acknowledgment by the wife apart from her husband, sufficient to satisfy the statute. Talbott’s Lessee v. Simpson. Peters, C. C. R. 190. But it is clear that it is not justified by the language used. For though it is stated that both the husband and wife appeared on the same day, it is distinctly stated that they severally made the acknowledgment; and this certainly does, not show that her acknowledgment was made in the presence of her husband, but rather the contrary. Then follows the statement, that the wife on a private examination separate and apart from her husband, acknowledged that she did so ; that is to say, that she signed, sealed and delivered the deed, voluntarily, &c. And in view of the whole certificate, it cannot be doubted, that the wife separately and apart from her husband acknowledged that she signed, sealed and delivered the instrument as her act and deed voluntarily, without any fear, threats or compulsion of her said husband. And this is all that the law requires.

The rule appears to have received very general sanction, that all that is required in certificates of this nature, is a substantial compliance with the law under which they are made. They are frequently made from necessity before illiterate and unexperienced officers ; and it would subserve anything else than the purposes of justice, to determine their validity by the application of very critical or technical rules, and thereby sacrifice rights depending upon them, and honestly acquired. Hence, they have been viewed with great indulgence and liberality, and have very generally been sustained when it could be done by fair legal intendment. Luffborough v. Parker, 12 S. & R. 48: Jackson v. German, 2 Cow. 567; Nantz v. Bailey, 3 Dana, 111; Shaller v. Brand, 6 Binn. 438.

Upon this principle we think that the certificate in this case was substantially good, and the decree is therefore affirmed, and the cause remanded, and the appellants required to answer within sixty days.