Cheney v. Nathan , 110 Ala. 254 ( 1895 )

MoOLELLAN, J.

The deed from Mrs. Nathan to complainant’s predecessors was invalid, the land embraced in it being her statutory separate estate, unless her husband joined therein “in the mode prescribed by law for the execution of conveyances of land.” — Code, § 2348.

Attached to the deed is the certificate of a notary public in due form to the effect that the husband, Lewis Nathan, acknowledged his signature to the deed; and his signature appears to the paper. But it is clearly proved that at the time this certificate was made he had not signed the deed, that he did not- sign it at any time in the presence of the notary or while the latter had the paper and that he at no time acknowledged his signature, nor was it attested. More than this,it was affirmatively shown that the only time he was ever in the presence of the notai’y was upon an occasion when the notary came tb him at the instance of a third party for the purpose of having him execute the instrument, and that on this occasion he positively declined and refused to sign the same. At this time the notary’s certificate of acknowledgment both as to himself and Mrs. Nathan was on the paper, fully perfected inform and.subscribed by the officer, having been written out and signed even before the deed was presented to Mrs. Nathan for signature ; and she had signed it before it was thus presented to her husband. Upon Nathan’s refusal to sign, the notary delivered the paper, still bearing his certificate that both the husband and the wife had acknowledged their signatures to it, to the third party who had sent him to have it executed. Some days after this, Nathan yielded to the solicitations of this third party and signed the paper.

We have carried the doctrine forbidding the impeachment of certificates of acknowledgments of the execution of deeds by parol evidence as far as any court; but we have never laid down a rule, nor proceeded upon considerations which would involve the establishment of a rule, which would protect this certificate from impeachment by such oral evidence as has been adduced. We have held that the certification is a-judicial act, done in the exercise of judicial power ; and that where the grantor appears before the officer for the purpose of acknowledgment, or for the general purpose of executing the instrument, or that where the officer has the paper for the purpose of having it executed, and the grantor is in his presence and their signs, parol evidence will not be received to contradict the certificate of acknowledgment; and it may be that the principles we have laid down would involve the further proposition,though we have not •so declared, that, if the name of the grantor appears to the instrument — if he has previously signed it — ¡and the notary takes it and goes into his presence for the purpose of securing his acknowledgment, the certificate of acknowledgment could not be impeached even by showing that the grantor was ignorant of the purpose of the notary’s visit and even of his official capacity, and of his possesssion of the paper at that time, and that no acknowledgment was made and that nothing suggesting or looking to an acknowledgment was said or done. But these principles in their broadest application would not protect the certificate involved in this case. The paper was not signed in the presence of the notary. It was never in the presence of the grantor and the notary after it was signed, nor in the possession-of the notary after it was signed. When the notary had it and executed his certificate of acknowledgment, there was nothing to acknowledge, there was no signature, nor was there any signature at any time while it was in his possession. Treating his powers and acts as judicial, they were lacking in one essential of jurisdiction. There toas no signature of any hind, genuine or otherwise before him. He had to do officially only with .signatures. His powers were not called into exercise until there was a subscription to be acted upon. There being no signature, there was nothing for him to certify an acknowledgment of. The grantor was not before him : Nathan refusing to sign was not a grantor. He had a paper writing in the form of a deed before him, but he had neither a signature to be acknowledged nor a ■signatory to acknowledge his execution of the paper. He was without jurisdiction to act in the premises, and his action, like that of other judicial officers and of courts proceeding without having acquired jurisdiction, is void, may be shown to be so by parol, and has been shown to be so in this case.

The chancellor, however, erred in so far as he undertook to enjoin the complainant “from asserting any further claims or interest in’’ the land, and in ordering a reference to ascertain rents, taxes, insurance, etc. We do not construe the statute under which this bill was filed (Acts 1892-93, p. 42), to authorize any affirmative relief to the defendant, coming into the case only by answer ? propounding his claim of title or interest to or in the land and praying no relief, except to adjudge whether he “has any estate, interest, or right in, or incumbrance upon said lands, or any part thereof, and what such interest, estate, right, or incumbrance is, and in or upon what part of said land the same exists.” The purpose of this statute is simply to fix the status of the land in respect of ownership, to re-establish by the decree muni-ments of title to it, (Ward v. Janney et. al., 104 Ala. 122); and, upon a bill filed under the statute and to which only the answer provided for by it is interposed, only the statutory relief can be awarded. This we think is emphasized' by section 6, which is to the effect that, except as otherwise provided in the act, all proceedings under it shall be had in accordance with the practice of courts of equity in this State. Of course,, the chancery court, taking jurisdiction on a statutory bill, might go on and settle the claims of the parties in respect of the land, whether they are claims for the settlement of which the statute provides or not, but an adherence to the practice of the court would require that such other claims be presented by appropriate pleadings. The injunction which was awarded the respondent and the reference to the register with a view to awarding her rents was the granting of affirmative relief not contemplated by the statute, and which could have been properly decreed only upon a cross bill by her with appropriate averments, sustained by competent evidence. The decree will be modified here by striking from it these two features, and as modified it will be affirmed.

Modified and affirmed.