Worrell v. McDonald , 66 Ala. 572 ( 1880 )

STONE, if.

There is in fact but one question presented by this record, namely : Is it shown that the mortgage from Worrell and wife was executed with the voluntary signature and assent of the wife, as the law requires such act to be evidenced, in order to convey or charge the homestead? The certificate of the notary is in the precise form prescribed by the statute. — Act approved December 13th, 1873 ; Pamph. Acts, 53-1. The objection urged is, that Mrs. Worrell was unduly persuaded to execute the paper, and that McDonald, one of the complainants, united in such persuasion. The evidence offered in support of this objection is the testimony of Mr. and Mrs. Worrell. They were, each of them, twice examined. In their second examinations they are. much more elaborate than in the first, and some discrepancies, as well as contradictions by other of their own witnesses, might be pointed out, if deemed necessary. McDonald, in his testimony, fully contradicts all' statements imputing improper influence exerted, and he is corroborated by many circumstances in evidence.

In Coleman v. Smith, 55 Ala. 368, this precise question was presented. We said : “The substance of the testimony certainly is, that Mrs, Coleman hesitated' before executing the mortgage, and at last signed it reluctantly. Still, there was no coercion, no subjugation of her will, and no false or fraudulent representations made to her, by which she was induced to join in the conveyance. Especially is there an entire absence of proof that Mr. Smith procured or connived at the employment of any influence, designed or calculated to procure her signature. True, she was persuaded by her husband, and probably by others ; but, when she came to act, she did it freely, without being impelled thereto by fraud, or duress. She freely elected to execute the mortgage, possibly under the conviction that Mr. Smith ought to be made secure, and partly, no donbt, as a means of averting a calamity then impending over her husband. Human actions are rarely impelled by isolated motives. We often find ourselves in a dilemma, to extricate ourselves from which we must elect between two confessed evils. Left entirely free, we would prefer neither ; but being compelled to take one or the other, we naturally choose that which we deem least hurtful. In thus choosing, we give our voluntary assent, in the strict and legal meaning of the term.”

In Miller v. Marx, 55 Ala. 322, 340, speaking of the measure of proof necessary to set aside a certificate, such as we are considering, we quoted from an opinion of the Supreme Court of Illinois, and adopted as our own the following language : “There must be some allegation of fraud, or imposition practiced towards her — some fraudulent combination between the parties interested and the officer taking the acknowledgment,” to justify the court in setting aside such certificate.

Under these rules, the defendants, appellants here, have failed to produce on our minds a satisfactory conviction that the chancellor erred in holding that the intendments arising from the notary’s certificate were not overcome. The cases of Balkum v. Wood, 58 Ala. 642, and Barnett v. Proskauer, 62 Ala. 486, are not opposed to this view.

Affirmed.