143 Ala. 518 | Ala. | 1904
The appeal in this case was taken from a decree of the chancery court of Tallapoosa county, foreclosing a mortgage on real estate. It was admitted that the real estate, upon which the mortgage
The only question, presented for consideration in the brief of counsel for the appellants, relates to the certificate of acknowledgment attached to the mortgage.
The acknowledgment purports to have been taken by Marcus Herzfeld, a notary public in and for Tallapoosa county, on the 21st day of March, 1892, that being the clay on which the mortgage was executed. It was insisted by respondents in the court below, that Herzfeld Aims not a notary public on that date; that he was appointed a notary on the 10th day of August, 1888, but his term of office under his commission expired on the 10th day of August, 1891, and that he was not reappointed until April the 23rd, 1893.
We judicially know that Marcus Herzfeld was appointed a notary public for Tallapoosa county on the 10th day of August, 1888; that his term of office under his commission was for three years and that he was not reappointed to that office until April 23rd, 1893. Hence, unless the act of Herzfeld in taking the acknowledgment can be upheld as the act of an officer cle facto, the acknowledgment was invalid.
The statute, under which Herzfeld was appointed a notary in 1888, is found in the Code of 1886 as section 1102, and is in the following language, namely; “A competent number of notaries public for each county in the State are appointed by the governor, who hold office for three years from the date of their commission, and until their successors are qualified.”
Herzfeld, at the expiration of his term of office, might lawfully have continued in the discharge of the duties of the officer for a reasonable length of time, and the commission would have lent color to his acts.- — Gary’s case, 76 Ala. 78. But the hold-over clause in the statute must not be construed as authorizing unlimited official terms. — City Council of Montgomery v. Hughes, 65 Ala. 201.
“There is no distinction in law between the official acts of an officer de jure, and those of an officer de facto. So far as the public and third parties are concerned, the
The record fails to show that Herzfeld had, between the date of the expiration of his commission and the taking of the acknowledgment to the mortgage in this case, (lone any official act as notary public; thus we have an interim of seven months from the expiration of the term of office to the taking of the acknowledgment, in which, so far as the record shows, no official act was attempted to he done. If the record had shown that, notwithstanding the expiration of the official commission, Herzfeld continued to hold himself out to the public as a notary public and to perform official acts as such, and as occasion required, up to the time the acknowledgment was taken, then we think his act in taking the acknowledgment would undoubtedly have been valid as the act of an officer de facto, as the official act of one in reputed authority. It has been so held in the courts of other jurisdictions. — Brown v. Lunt, 37 Me. 423 ; Prescott v. Hayes, 42 N. H. 56; 1 Devlin on Deeds, § 471.
In the case of Hughes v. Long, it was held that, where a mortgage was acknowledged before a person who acted as a notary public, it appearing that such person’s commission had expired nearly two years before, such person could not be regarded a notary public de facto, it not being shown that he attempted to act as a notary public after his commission expired until the acknowledgment of Such mortgage.- — Hughes v. Long, 119 N. C. 52; (25 S. E. Rep. 743.)
In the case of Bernier v. Becker, 10 months after the expiration of a notary public’s commission, he took an acknowledgment of a deed. There was no evidence
In this case, where there is an entire absence of evidence tending to show that any official act was performed, or attempted to be performed by Iierzfeld during a period of seven months from the expiration of his commission to the acknowledgment of the mortgage, and an absence of evidence tending to show that, during that time, he ever held himself out as a notary public, or that he was recognized as a notary public, we do not think that we' would be authorized to hold that the taking of the acknowledgment was valid as the act of an officer rlc facto. To so hold would be to rest the validity of the act solely upon the hold-over clause in the statute under which Herzfeld received his appointment in 1888, and we think that would be extending the right to exercise the functions of the office beyond a reasonable time.
The question goes to the- jurisdiction of the person assuming to act as an officer and was properly raised in this case. It is not controlled by the case of Monroe v. Arthur, 126 Ala. 362, but falls within the influence of the case of Grider v. American Freehold Land Mortgage Co., 99 Ala. 218; see also Hughes v. Long, supra.
It is insisted by appellants that the certificate as to the separate acknowledgment of the wife is defective in substance, in that it fails to certify that the wife of the grantor was personally before the officer, and fails to show the date on which the wife was examined separate and apart from the husband.
Certainly the officer could not have examined the wife separate and apart from the husband if she had not been personally before him. In the certificate endorsed ori the mortgage, he has certified that she was examined by him separate and apart, from the husband touching her signature “To the within mortgage” and that she acknowledged, etc.; this we think in effect certifies’ that the wife was personally before the officer.
The mortgage was executed on the 21st day of March, 1892, and the certificate of the wife purports to have
While the court has held that the wife has not such an interest in the homestead, during the life of the husband, as will authorize her to maintain a bill in equity to set aside a conveyance of it, on the ground that the> conveyance was void for want of the proper certificate of acknowledgment, yet we think, when a bill is filed against husband and wife to foreclose a mortgage on the homestead and it is defended by the husband and wife on the ground that the certificate of acknowledgment is void, if the court decrees a foreclosure, on appeal the husband and wife may jointly assign the decree as error. M is prejudicial to the interest of both. The wife has in the property an inchoate right of dower which the mortgage purported to convey and she being a party to the bill, a foreclosure decree would exclude her from after-wards asserting.
For the error in admitting the mortgage in evidence, ¡the decree of the .chancery court must be reversed and the cause remanded.
Reversed and remanded.