Smith v. Hogan ( 1934 )

Davis, C. J.

(concurring).—I concur in the foregoing opinion but not in the conclusion. If the parties did not appear before a Notary who certified to the purported acknowledgment the Notary acquired no jurisdiction to make a conclusive certification against the parties, and that fact is" capable of being established by the parties themselves as well as by other evidence. But the credulity of masters and Chancellors ought not to be liberally exercised in this acceptance as true as against a prima facie valid certificate of acknowledgment constituting evidence of equal dignity contra, the unsupported denials of a husband and wife that they did not do that which their very conduct in using an acknowledged mortgage to obtain bank credit implies that they did do, namely, appear before the officer and acknowledge the instrument. Volente non fit injuria should be applied here.