155 So. 560 | Ala. | 1934
The bill as amended is by the wife to cancel a mortgage on the husband's land.
It has been declared that the wife cannot, ordinarily, maintain a bill to avoid the conveyance of the husband of the homestead in the absence of due allegation and proof that the husband fails to act in the premises. Fies Sons v. Lowery,
It is established that the act of certifying an acknowledgment is the exercise of a judicial function, and conclusive of certification, when the certifying officer acquires jurisdiction by having the grantor and the instrument to be acknowledged before him as such officer, and then and there exercises such jurisdiction; that "the resulting certificate is conclusive of the truth of all those facts therein stated, which the officer is by law authorized to state, until successfully assailed" (1) for duress, or (2) for fraud participated in by the grantee, or (3) brought to his notice when parting with the consideration. Fies Sons v. Lowery,
It is not maintained that there was a lack of consideration for the mortgage, or that the husband did not execute the same, and the bill as first amended (as of date of November 17, 1931) asserts "that the mortgage * * * has been satisfied and paid in full prior to the time this suit was instituted."
The burden rested upon the complainant throughout the proceeding, acting for or as to the husband and his land in the impeachment of the notarial certificates attached to and as part of the mortgage; and this burden is required to be discharged by evidence that is "clear and convincing, 'reaching a high degree of certainty, leaving upon the mind no fair, just doubts.' " Freeman v. Blount,
We have examined the evidence, and it is not of that high and exacting degree which the rule that obtains in such a case requires. The mere denial of the wife, the conflicting tendencies in the testimony of the husband, and the tendency of evidence as to the contradictory position taken by him in the United States court as to the mortgage (Luling v. Sheppard,
Whether Mrs. Bates wrote her name or not, if she duly acknowledged the mortgage and execution of the same as her act, and as required by law, his certificate is conclusive and the mortgage was valid. Purser v. Smith,
We are of opinion, and so hold, that the trial court was in error in granting complainant relief under the amended bill and the weight of evidence in rendition of the final decree.
The decree of the circuit court is therefore reversed, and one here rendered dismissing the bill of complaint.
Reversed and rendered.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.