Dowell v. Mitchell , 1884 Ky. LEXIS 36 ( 1884 )

JUDGE HINES

delivered the opinion op the court.

Appellee brought this action against appellant on a note secured by mortgage and signed by appellant and her deceased husband. The defense set up is : First, that she was compelled to sign the note and to execute the mortgage by the duress of her deceased husband ; second, that she did not acknowledge the mortgage separate and apart from her husband, and that neither the contents nor the effects of the mortgage were explained to her, or understood by her. There is no charge of fraud on the part of appellee nor of mistake by the deputy clerk taking the acknowledgment, nor is there any pretense that appellee knew any of these things. Notwithstanding the failure to allege either of these things, the court improperly admitted evidence tending to show some threats made by the husband prior to the acknowledgment of the mortgage, that he was present at the time of acknowledgment, and also tended to' show doubt upon the question as to whether the mortgage was explained to her, but there is no doubt, from the evidence, that she understood the contents of the mortgage. In the absence of any allegation as to fraud or mistake, as indicated, the evidence is immaterial, since the mortgage was acknowledged subsequent to the adoption of the General Statutes. Section 17, chap-81, of that Revision reads:

“Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in the form of a certificate, return, or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer.”

Section 38 of chapter 24 provides that a memorandum of an acknowledgment, endorsed upon an instrument by a deputy clerk, may afterward be written out in full by the clerk, including in his certificate the memorandum by the deputy. That, in this instance, was done, and the following is the full certificate of the clerk

“ State of Kentucky, Sct. “Green County,

“I, J. S. Dunham, Clerk of the County Court for the County and State aforesaid, certify that the foregoing mortgage from T. W. Dowell and his wife, Sarah Dow-ell, to J ames Mitchell was, on the 7th day of August, 1876, in Green county, before W. T. Smith, a deputy clerk of the Green County Court, acknowledged in due form of law to be their act and deed, as appears from the endorsement thereon, as follows: ‘Acknowledged in full by Sarah W. Dowell and her husband, Thos. W. Dowell, August 7, 1876, by W. T. Smith, D. C., for J. S. Dunham, C. G. C. C.,’ and the same, together with this certificate, is truly recorded in my office, this 20th ■day of January, 1877. J. S. Duniiam, Cleric.

“By H. Duniiam, D. C.”

It will be observed that the certificate does not state that appellant was examined separate and apart from her husband, nor that the contents and effect of the mortgage were explained to her. It is apparently on account of the absence of these statements from the certificate that counsel for appellant insists that the evidence relied upon, for appellee does not call in “question” the certificate of the clerk. A quotation of subsection 1 of section 2, chapter 24, of General Statutes is ,a sufficient answer to this:

“Where the acknowledgment shall be taken by an ■officer of this State, he shall simply certify that it was acknowledged before him, and when it was done, which shall be evidence that she had been examined separate .and apart from her husband, and the contents explained to her, and that she had voluntarily acknowledged the instrument, and consented that it should be recorded.”

The provisions of this section must be considered as a part of the certificate, and the certificate must be read and given the same effect as if these provisions were therein written out in full. That being done, it is clear that the admission of any evidence tending to show that the feme covert was not “ examined separate and apart from her husband,” that “the contents” were not “explained to lier, that she tad”'not “voluntarily acknowledged tke instrument,” or that ske did not consent “that it should be recorded,” would be ■ calling “in question” the certificate of the officer.

It appears to be upon the same idea that counsel for appellant insists that Pribble v. Hall, 13 Bush, 65, is hot applicable to the case being considered. We think that case conclusive of this.

Judgment affirmed.