Ogden Building & Loan Ass'n v. Mensch , 99 Ill. App. 67 ( 1900 )

Mr. Justice Shepard

delivered the opinion of the court. This is a suit in equity to foreclose a mortgage for $3,000, made by the appellees Anna and Michael Mensch. The appellee George Landgraif was made a party defendant, and, besides answering, he filed his cross-bill to foreclose a second mortgage to secure $300, made by the same defendants. The premises conveyed and sought to be foreclosed were, at the time the mortgages were executed and ever since, occupied by the mortgagors as, and constituted their homestead. Ho question is made to the regularity of Landgraff’s mortgage. But as to the mortgage to the appellant, it was shown that the acknowledgment of it was taken before and certified by a notary public who was the attorney of the association and was one of its directors and had been for some five years one of its stockholders. And the principal question for decision is as to the effect of an acknowledgment so taken and certified. We omit reference to all minor questions raised on the pleadings, as a reversal on any of the other grounds urged would be but temporary and give to appellant no ultimate advantage.

The learned chancellor who entered the decree held the certificate of acknowledgment to be void, and we are constrained to agree with him. Hammers v. Dole, 61 Ill. 310.

It is an admitted fact in the case, that the notary public before whom the acknowledgment was made and certified was attorney, director and shareholder of the appellant corporation, and there can'be no effectual denial that he was, therefore, an interested party. The great weight of authority is to the effect that an acknowledgment must be held void when taken by an officer who is a party to the instrument, or who is beneficially interested in the same, directly or indirectly.

It was so held in Hammers v. Dole, swpra-, where the court said: “An officer should not be permitted to perform either a ministerial or a judicial act in his own behalf.” It is “ against the policy of the law.”

A numerous collection of .the authorities may be seen in Kothe v. Krag-Reynolds Company, 20 Ind. App. 291, where the law was held the same way. The case of Cooper v. Hamilton Building & Loan Association, 97 Tenn. 285, is directly to the contrary, but we regard the decision of our Supreme Court as controlling, supported as it is by such numerous authorities, and if the rule is to be changed it should be done by that court.

Without further discussion we must affirm the decree.