T. H. & J. M. Allen & Co. v. Lenoir

53 Miss. 321 | Miss. | 1876

Campbell, J.,

delivered the opinion of the cotrrt.

The suit being against husband and wife to subject the wife’s land to the mortgage and both husband and wife being summoned, the husband pleaded that he had been discharged in bankruptcy, and the wife petitioned to be allowed to defend the suit separately from her husband, and, having obtained an order to do so, defended separately. The complainants then dismissed their bill as to the husband, and afterwards the wife moved the court to discontinue the suit as to her, because it had been discontinued as to her husband. This motion was denied; and we think there was no error in this. There was no error in sustaining the demurrer to the amended and supplemental answer ancl cross-bill of Mrs. Lenoir. The Chancellor did err in not suppressing the evidence of what Hunt, the clerk, whose certificate of acknowledgment appears on the mortgage, told the witness about that certificate. It was incompetent, both because it was hearsay, and because it impeached the official certificate of Hunt.

The remaining questions involve the validity of the mortgage sought by the bill to be foreclosed. The decree assumes its validity, and directs its enforcement as to the $3,000 note described in it, but not as to the larger note, by a sale of the mortgaged land. Both parties are dissatisfied with this decree. Allen & Co. complain that the larger note is excluded; and Mrs. Lenoir insists that the mortgage shall not be enforced at all, because, she says, she did not acknowledge it, as certified by Hunt, and if it is valid it binds only her income, and not the corpus of her said estate. In addition to this, she insists that the certificate of acknowledgment as made is not good under the statute ; and that, at all events, provision should be made for the support of herself and children out of the mortgaged property. This last claim is totally without any foundation in law or equity. We think the certificate of acknowledgment sufficient. It shows a substantial compliance with the statute. We adhere to Love v. Taylor, 26 Miss. 567 ; and do not think the omission of the words “ freely ” and “ voluntarily” from the certificate avoids it, as it shows that the wife acknowledged that she executed the deed “ without any fear, threats or compulsion ” on the part of her husband, and this upon an examination separate and apart from him. Bernard v. Elder, 50 Miss. 336.

The claim of Allen & Co., that if the mortgage is good at all it secures the larger note, and should be enforced as to that, is well taken ; and the objection of Mrs. Lenoir, that, even if the mortgage is valid, only her income can be subjected under it, is a just one, upon the facts disclosed by the record. We cannot escape the conclusion, after an earnest effort to avoid it, that the mortgage was never acknowledged by Mrs. Lenoir, and that the certificate that she had acknowledged it is untrue. A proper acknowledgment is an essential part of the execution of a conveyance of her land by a married woman. The bill charges the execution of the mortgage by Mr. and Mrs. Lenoir. In her answer, she denies that she ever acknowledged it. There is nothing but the official certificate of her acknowledgment to contradict her answer, which is supported by a number of circumstances which fully sustain it. The decree, being based on the mortgage, is erroneous. The rights of the parties must be determined by the facts independent of the mortgage, which, for the reason stated, is not obligatory on Mrs. Lenoir. The decree will be reversed; and, in order that the complainants (Allen & Co.) may obtain leave to amend their bill, if they can do so, and litigate with Mrs. Lenoir as to her liability by virtue of the dealings between the parties, the cause will be remanded to the Chancery Court. The costs of the appeal and cross-appeal in this court will be taxed on Allen & Co. Whatever majr have been the effect as to Thomas B. Lenoir of the dismissal of the suit as to him and the order at a subsequent term vacating this order of dismissal, his joinder in the prosecution of the appeal to this court makes him a partjr to the suit for any further proceeding in it.