Thompson v. New England Mortgage Security Co., 110 Ala. 400

Thompson v. New England Mortgage Security Co.

110 Ala. 400 | Ala. | 1895

HEAD,!.

The action is statutory1 ejectment to recover possession of land. The plaintiff in the court below offered in evidence a mortgage executed by the defendant, proved default therein, and a regular foreclosure, at which it became the purchaser, and rested. The mortgage showed that the wife joined in the conveyance ; her name appeared to be signed thereto, and the certificates of acknowledgement in the common form and of the separate examination of the wife were appended in strict compliance with the statute. The defendant proved, that the property sued for constituted his homestead at the time of the execution of the mortgage, and that it was within the statutory limit, in ai’ea and value. The sole defense, which defendant sought to make, consisted in his offer to show that at the time his wife signed the mortgage, and when she acknowledged it separately and *405apart from him, she was totally insane, and that she had no idea or understanding whatever of the nature, character or consequences of the act she was performing. The court, upon plaintiff’s objection, refused to permit him to make this line of defense, and we have only to decide whether this ruling was correct, the appeal being prosecuted from a judgment, based upon a verdict in fa.-vor of the plaintiff after the affirmative charge had been given in its favor..

It requires no argument to prove that an insane wife is incapable of giving her voluntary consent to the alienation of the homestead ; and, hence, the question presented for our decision must resolve itself into, and must be determined by the result of, two other inquiries : First, whether by reason of the insanity of the wife the husband may alone alienate the homestead; and if not, then, second, whether the certificate of the officer who examined her apart from the husband is conclusive of her capacity to assent to the conveyance. These questions have not heretofore been directly presented in this State.

1. The purpose of the statutes in securing an exempt homestead to every resident of the State, and in requiring the wife’s voluntary signature and assent to any alienation thereof when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place.—Turner v. Bernheimer, 95 Ala. 241. This court, as well as those in other States having a similar system, has adopted a strict rule on this subject, in accordance with which it is generally held that to convey the homestead there must be a strict compliance with the statutory mode of alienation. In a recent case, where we collected our previous decisions, speaking of a deed which was without the acknowledgment of the wife, we said : “By the repeated decisions of this court, as well as by the terms of the statute itself, such a conveyance is void. It is said of such a deed that it is a nullity to all intents and purposes, and confers no rights present or prospective, is totally insufficient as a muniment of title to support an action of ejectment, and is incapable of passing any estate or interest whatever in the homestead.”—Parks v. Barnett, 104 Ala, 438; Alt v. Banholzer, 39 Minn. oil, s. c. 12 Am. St. Rep. 681, and note. The insanity of the wife does not dissolve the *406bond of marriage, nor withdraw her or her family from the beneficent purpose of the homestead laws. The statute is plain, unambiguous and admits of no exceptions, which would destroy its obvious design. If the occupant be a married man, the voluntary signature and assent of the wife, evidenced in the manner prescribed, are essential to a valid alienation of the homestead, unless the conveyance be made to her. Efforts have been made to engraft other exceptions, arising out of the supposed necessities of the case, upon similar statutes, but they have uniformly failed. Thus, the fact that the wife is living apart from her husband and even in another State, has been held insufficient to dispense with her signature and assent.—Johnston v. Turner, 29 Ark. 280; Williams v. Swetland, 10 Iowa 51; Herron v. Knapp, 72 Wis. 553; Bradford v. Cen. Kan. L. &. T. Co., 47 Kan. 587; Ott v. Sprague, 27 Kan. 620; Lies v. DeDiabler, 12 Cal. 327; Castleberry v. Maynard, 95 N. C. 281. In anote to Poole v. Gerrard, 65 Am. Dec. 481, on p. 488, Mr. Freeman says : ‘ 'That the wife is living apart from her husband, or is insane, will not render his sole conveyance of the premises valid.” One of the cases he cites, Alexander v. Vennum, 61 Iowa 160, is directly inpoint upon the question we are considering, and the later case of Whitlock v. Grosson, 35 Neb. 829, 53 N. W. Rep. 980, is to the same effect. No cases in conflict with these have been cited, and, after diligent search, we have found none. In the last case referred to, the court, after quoting their statute, which is not essentially different from our own, says : ‘ 'Here is a plain prohibition against the incum-brance of the homestead without the joint act of both husband and wife. It contains no exception with reference to an absent or insane husband or wife. Had Mrs. Grosson, defendant’s wife, been in fact a resident of this State, and her domicile the premises in controversy, it is plain that she would have been incapable of relinquishing her homestead right, anda mortgage executed by her would have been ineffectual for the purpose of creating a lien thereon.” In the case of Alexander v. Vennum, 61 Iowa, 160, supra, the insane wife joined the husband in the execution of the deed. After the conveyance the grantors abandoned the homestead. The court held that as the wife of McKean was insane at the time of the sale and conveyance to the defendant, the *407wife could not have concurred therein, and that it was void. As the result, the premises were declared to be subject to a judgment lien against the grantor, which attached to the property, after its abandonment asa homestead. If the conveyance were void because of the wife’s insanity, the conclusion reached necessarily follows.—Smith v. Pearce, 85 Ala. 264.

In Vol. 11, Am. & Eng. Encyc. of Law, p. 147, there is a note which states that where a statute provided that the deed of a married woman, in which her husband does not join, shall not be valid, and it appears that'a husband while insane joined in a deed with his wife, such deed was held absolutely void. The case is not cited by name and we have been unable to find it. The following extract from the opinion, however, is given, which we think correctly states the law : “We think that the learned Judge who presided at the trial correctly ruled that if the defendant’s husband was, at the time he signed the deed, insane, he could give no such assent as would satisfy the statute. The deed was void to the same extent as if there had been no assent by the husband, and no subsequent action or failure to act on his part could give its validity. The cases cited by the tenant to the point, that the deed or another contract of an insane person is voidable only, and may be ratified by him after he becomes sane, do not apply to this case. No subsequent assent or 'ratification by the husband could fullfill the requirements of the statute, or give validity to the deed as the deed of the wife.” These remarks apply with equal force to the joinder by an insane wife in the husband’s mortgage of the exempt homestead in this State.

2. It is insisted, however, by the appellee that evidence aliunde may not be offered by the husband to prove the mental incapacity of his wife, and that the certificate of the officer in statutory form, is not only the only permissible evidence of the wife’s voluntary assent, but is conclusive evidence of 'her capacity to give that assent. We have had occasion in a series of cases to consider the nature and character of the certificate which an authorized officer makes of acknowledgments of deeds, when the parties appear before him and come within his jurisdiction, for that purpose. We have held that a justice of the peace of one county may not *408go into another and take acknowledgment and make a certificate thereof, and that proof might be made to show that the justice did not certify truly, when he stated in his certificate, that ilie grantors appeared before him in his county.—Mortgage Co. v. Peoples, 102 Ala. 241. We have also held that if, in fact, the wife did not appear before the officer at all, nor make any acknowledgment to him, his certificate would not preclude her from proving the real facts.—Giddens v. Bolling, 99 Ala. 319; Grider v. Mortgage Co., Ib. 281. These rulings do not conflict with the now definitely settled doctrine in this State, that an officer within his local jurisdiction, taking and certifying acknowledgments, acts judicially and not ministerially, and that if the officer acquires jurisdiction of the parties, his certificate in the statutory form, can not in the absence of fraud or duress bo assailed, by evidence that in point of fact they did not acknowledge what lie certifies. Our latest utterance upon this subject is in Mortgage Co. v. James, 105 Ala. 347. It is not, however, everything which an officer chooses t.o include in his certificate, that is conclusively established thereby. Our language is that, under the circumstances stated, “the parties.will not be allowed to impeach the truth of the facts he is required by law to certify.” The certificate of an officer to a fact which the law did-not entrust him to certify, is of no value.—Draper v. Brison, 17 Mo. 71, s. c. 57 Am. Dec. 257. Upon an examination'of the certificate which the statute requires we do not find that he is authorized to certify, nor in the mortgage introduced in this case did he certify, anything whatever in regard to the mental status of Mrs. Thompson. He must -examine her touching her signature, and must certify, not that she did or could -sign the instrument of her own free will and accord, but simply that she acknowledged, meaning thereby that she stated or admitted, the signature to have been so made. The officer is not required to pass upon her capacity to give voluntary assent, and his certificate can not be conclusive of the question. In Williams v. Baker, 71 Pa. St. 476, the court considered this question, under a statute requiring a separate acknowledgement by married women of eoveyances of their separate property, and requiring also a. certificate very similar in form to that contained, in section 250S of the Code of 1886. The wife sought to *409avoid her conveyance, certified in due form, by parol evidence, on the ground of her incapacity because of infancy, to execute the same. The certificate of the officer was relied on as conclusive of the validity of her deed against an attack of that kind. The court said that the form of the certificate did not make it the duty of the magistrate to ascertain and certify in relation to anything, except whether the woman executed voluntarily, of her own free will and accord, without compulsion from her husband; and that inasmuch as the certificate is conclusive only of such facts as the officer was required to certify, she was not concluded by his certificate from showing she was a minor when she signed. We must give a similar construction to our statute. ■

The circuit court should have allowed the defendant to prove, if he could, that his wife was insane when she affixed her name to the mortgage and acknowledged the same, as he offered to do ; and because of its refusal to allow such evidence to be introduced, the judgment mustbe reversed and the cause remanded.

Reversed and remanded.