Picetti v. Orcio , 57 Nev. 52 ( 1936 )

ON REHEARING April 30, 1937. 67 P.2d 315.

1. ACKNOWLEDGMENT. Presumption in favor of notary's certificate of acknowledgment, whether statutory or not, can only be overcome by clear, cogent, and convincing evidence amounting to a moral certainty (Comp. Laws, sec. 1503). 2. ACKNOWLEDGMENT. Uncorroborated testimony of interested party is not generally such clear, cogent, and convincing evidence as is required to overcome presumption in favor of notary's certificate of acknowledgment (Comp. Laws, sec. 1503). 3. HOMESTEAD. Where notary handed mortgage on homestead to alleged mortgagor without her signature to it and explained the document, alleged mortgagor took document into house and brought it back with her name signed to it, stating that she knew all about it, alleged mortgagor was bound by the signature, whether signature was placed on document by her or another, because she adopted signature as her own. 4. HOMESTEAD. No different rule governs certificate of acknowledgment to conveyance of homestead than applies to certificate of acknowledgment to any other conveyance. 5. SIGNATURES. Where one adopts another's signature of one's name to mortgage and so signifies by spoken word, nod of the head, or otherwise, it amounts to an "acknowledgment." 6. ACKNOWLEDGMENT. Bare preponderance of evidence is not sufficient to overcome presumption in favor of certificate of acknowledgment regular on its face, nor is loose and inconclusive evidence merely creating doubt as to truth of certificate or contradicting it by implication sufficient. 7. ACKNOWLEDGMENT. Presumptions are indulged in favor of certificate of acknowledgment to deed, although it has not been admitted or established that there was an appearance by grantor before notary and an acknowledgment (Comp. Laws, secs. 1483, 1503). 8. ACKNOWLEDGMENT. Rule that presumption in favor of regularity of act of public official does not apply where it would place charge or lien on property held not to affect presumption in favor of certificate of acknowledgment to mortgage (Comp. Laws, sec. 1503). 9. ACKNOWLEDGMENT. Rule requiring clear, cogent, and convincing evidence amounting to a moral certainty to overcome presumption in favor of certificate of acknowledgment to deed held required by public policy, regardless of whether taking of acknowledgment is judicial or ministerial act (Comp. Laws, secs. 1483, 1503). In order to hold that Marie Orcio was bound by the purported mortgage, it is necessary to find that she appeared and made some kind of acknowledgment of the same to the notary. This honorable court in its opinion held that this was established by the presumption which the law creates in favor of the notary's certificate. The court evidently inadvertently overlooked the fact that the record discloses that, on this particular mortgage, Marie Orcio testified not merely that she did not acknowledge it, but testified that she never even appeared before or saw the notary at all, and never knew anything about the mortgage until suit was brought for its foreclosure.

When there is a direct conflict in the testimony of two witnesses, the matter of credibility is a question to be determined by the trial court. There is no presumption in favor of such witnesses, whether one be a layman and the other a notary, or what not. 70 C.J. 762; 1 R.C.L. 295, 296; 1 C.J. 886, 887, 890; 22 C.J. 141; Knox v. Kearney, 37 Nev. 393, 142 P. 526; People's Gas Co. v. Fletcher, 81 Kan. 76, 10 P. 34, 41 L.R.A. (N.S.) 1161.

There is a still further reason why, in Nevada, no presumption exists in favor of the notary under the circumstances. Under the statutes, the certificate of the notary is merely prima-facie evidence. Section 1501 N.C.L.; sec. 1503 N.C.L.; Seeley v. Goodwin, 39 Nev. 315, 156 P. 934.

When the issue is raised, as was done in the case at bar, that there was no appearance or acknowledgment of any kind, then there is no presumption in favor of jurisdiction having been acquired by the notary. Hannah v. Chase, 4 N.D. 351, 61 N.W. 18, 50 Am. St. Rep. 656. In spite of counsel's statements to the contrary, the uniform rule is that the certificate of the notary carries with it the presumption of due execution. In other words, in all jurisdictions the certificate is presumed to speak the truth as to the facts stated therein, including that of the appearance before the notary and the acknowledgment.

Although, perhaps, formerly otherwise in certain jurisdictions, the uniform rule now is that the certificate is not conclusive as against one claiming a forgery. An examination of the cases so holding reveals that although the certificate may be conclusive where some appearance is made it may be impeached under the claim of nonappearance. Those same cases hold that in order to impeach on that ground, the presumption accorded the certificate must be overcome, and such can only be done by convincing proof of a high order. Elliott v. Knappenberger (Okla.), 58 P.2d 1240; Stidham v. Moore, 227 P. 129; Ware et ux. v. Julian (Calif.), 9 P.2d 906; Chaffee v. Hawkins (Wash.),157 P. 35; Kennedy v. Security Bldg. Sav. Ass'n. (Tenn.),57 S.W. 388; Romer v. Conter et al. (Minn.), 54 N.W. 1052; Swiger v. Swiger (W.Va.), 52 S.E. 23; Roberts v. Huntington D. G. Co. (W.Va.), 109 S.E. 348; Johnston v. Lindner (Ia.), 143 N.W. 410; Hall v. Hall (Mich.), 155 N.W. 695; Eversole v. Kentucky River Coal Corp. (Ky.), 225 S.W. 50; Yusko v. Studt (N.D.), 163 N.W. 1066; Rowray v. Caspar Mutual Bldg. Loan Ass'n. (Wyo.), 45 P.2d 7.

Even if the presumption did not exist in favor of the certificate, the evidence offered by respondents comes within the rule of Moore et al. v. Rochester Weaver Mining Co., 42 Nev. 164,174 P. 1020. That there must be a substantial conflict in evidence before the court will refuse to disturb the lower court's findings, is a rule too well recognized to warrant discussion. Valverde v. Valverde (Nev.), 26 P.2d 233.

OPINION We granted a rehearing in this case that we might further consider the correctness of our conclusion as to the weight which should be attached to the certificate of acknowledgment as to Mrs. Orcio. We will not restate the facts of the case.

It is insisted that the testimony of Mrs. Orcio, standing alone, if believed by the trial court, is sufficient to justify the decree entered, and hence to necessitate an affirmance thereof.

While such is the broad contention, it is followed up with the assertion, stated briefly, that there is a confusion in the authorities, due to a failure to distinguish between rules applicable only in certain jurisdictions, or under a specific state of facts, which rules, it is said, may be stated as follows:

1. In some jurisdictions, including Nevada, the policy of the state is declared by statute to the effect that a certificate of acknowledgment is only prima-facie evidence that the purported grantor appeared and acknowledged, etc.; that in such jurisdictions the prima-facie evidence can be overcome by any satisfactory evidence believed by the trial court on the issue as to whether there was ever any appearance or any kind of acknowledgment.

It is asserted that as to the instant case there are three additional factors to be kept in mind:

a. That admittedly the mortgage does not bear the signature of Mrs. Orcio.

b. That under our homestead laws evidence purporting to divest a wife of her interest is subject to as close scrutiny as would be any evidence attacking a notary's certificate.

c. That in no event can a presumption be indulged in favor of the notary's certificate for the reason that the notary himself established that there was no acknowledgment.

2. In some states it is held that a certificate of acknowledgment involves a judicial act and in such states strong presumptions are indulged in favor of the notary's certificate, but that no such rule exists in Nevada.

3. It is also contended that in states where presumptions are indulged in favor of a certificate they only apply after it has been admitted or established that there was an appearance before the notary and an acknowledgment, and that no presumption exists in the first instance where the party sought to be bound denies that there was any acknowledgment whatever.

4. That the presumption which generally prevails in favor of the regularity of an act of a public official does not apply where it would place a charge or lien upon property.

1, 2. As to the first contention, to the effect that under section 1503 N.C.L. a certificate of acknowledgment is only prima-facie evidence, we may say that we had this section in mind when we wrote our former opinion, and what we said in that opinion is in harmony with that view. In fact, we clearly manifested that view, after quoting from several authorities, by this statement: "Let us determine if the evidence in behalf of defendants Joe Orcio and wife to the effect that she did not sign and acknowledge the mortgage is so clear, cogent and convincing as to overcome the certificate of acknowledgment and adverse evidence."

We think the contention of respondent that the presumption in favor of the notary's certificate can be overcome by any satisfactory evidence believed by the trial court is too broad — whether the presumption is one recognized by statute, as with us, or recognized by the courts in those jurisdictions where there is no such statute. The presumption can be overcome by satisfactory evidence, but the courts have generally held that to constitute such satisfactory evidence it must be of the character we heretofore pointed out, that is, that it must be clear, cogent and convincing; and in determining what is such clear, cogent and convincing evidence, it is generally held that the uncorroborated testimony of an interested party is not of such character, as we will point out.

3. Is the contention that admittedly the mortgage in question does not bear the signature of Mrs. Orcio well founded? We do not so construe the evidence. She testified she did not sign it. Her husband testified that he signed her name to it in the presence of the notary and another. In this he is flatly contradicted by both. His testimony is worthless for the reason pointed out in our former opinion. The notary testified that he handed the mortgage to Mrs. Orcio without her signature to it, and explained the document; that she took it into the house and brought it back with her signature, stating that she knew all about it. If this evidence by the notary is true, she is bound by the signature, whether she signed it or not, because she adopted the signature as her own, even if it was actually written by another. In addition to the authorities we cited in our former opinion to this effect are: Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Currier v. Clark, 145 Iowa, 613, 124 N.W. 622; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Kerr v. Russell,69 Ill. 666, 18 Am. Rep. 634, 639; Blaisdell v. Leach, 101 Cal. 405,35 P. 1019, 40 Am. St. Rep. 65.

4. Point "b" made by respondent is not supported by citation of authority or by argument, and we know of no law establishing a different rule as to a certificate of acknowledgment to a homestead than applies to a certificate of acknowledgment to a conveyance of land not embraced in a homestead.

5. As to contention "c," to the point that the notary himself establishes that there was no acknowledgment, we merely wish to say that we do not so construe the facts of this case. We have pointed out, to our own satisfaction at least, that where one adopts the signature of another to a mortgage and so signifies by spoken word, nod of the head, or otherwise, it amounts to an acknowledgment.

Coming to the assertion that great confusion exists among the authorities, and the contention that a different rule exists in states where the taking of an acknowledgment is considered a judicial act, from that prevailing in those states where it is considered a ministerial act, in that greater weight attaches to an acknowledgment in the former than in the latter, and that Nevada belongs to the latter class, we may say that, conceding without deciding either contention, for the purpose of this case, the rule which we announced in our former opinion prevails in the great majority, if not all of the states which hold that the taking of an acknowledgment is a ministerial act.

Before proceeding further in this connection, it may be proper to suggest that the confusion or apparent confusion arises out of the fact that in some states, particularly as to married women, the statute provides that the party taking the acknowledgment shall explain the force and effect of the instrument signed, and shall take the acknowledgment of her signature on an examination apart from and without the hearing of the husband. But even if an acknowledgment of a married woman were held judicial, it might be that it would be proper in the same jurisdiction to hold that the taking of the husband's acknowledgment, when there is no such provision as to him, is a ministerial act. But we do not decide this question, as it is not necessary, and suggest it only for future consideration in case the question ever arises, since our statute formerly required such an examination in case of an acknowledgment of a married woman, in view of the fact that such an acknowledgment may yet come before the court for consideration. However, this may never be a serious question in Nevada, in view of the fact that our statute has always provided that such certificate shall be "rebuttable." In this connection, we find that the supreme court of the United States held in Elliott v. Peirsol, 1 Pet. 328, 7 L. Ed. 164, that the taking of an acknowledgment is a ministerial act, whereas it held in Hitz v. Jenks, 123 U.S. 297,8 S. Ct. 143, 31 L. Ed. 156, that it was judicial in character; and we find also that in earlier cases in Illinois it was held to be a judicial act, but in the more recent case of People, for Use of Munson, v. Bartels, 138 Ill. 322, 27 N.E. 1091, it was held to the contrary.

Reverting to the main question, while the great weight of authority is to the effect that the taking of an acknowledgment is ministerial, we do not find it necessary to determine whether or not the taking of the acknowledgment in question is a ministerial act (our statute no longer requiring an examination of a married woman separate and apart from her husband), and will assume that it is, since there is no contention to the contrary.

The following decisions, among others, hold that the taking of an acknowledgment is ministerial in character: Biscoe v. Byrd,15 Ark. 655; Woodland Bank v. Oberhaus, 125 Cal. 320, 57 P. 1070; Wardlaw v. Mayer, 77 Ga. 620; People, for Use of Munson, v. Bartels, 138 Ill. 322,27 N.E. 1091; Abrams v. Ervin, 9 Iowa 87; Com., for Use of Green, v. Johnson, 123 Ky. 437, 96 S.W. 801, 124 Am. St. Rep. 368, 13 Ann. Cas. 716; Gibson v. Norway Sav. Bank, 69 Me. 579; Lewis' Lessee v. Waters, 3 Har. McH. (Md.) 430; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Barnard v. Schuler, 100 Minn. 289,110 N.W. 966; State, to Use of Alexander, v. Plass,58 Mo. App. 148; Horbach v. Tyrell, 48 Neb. 514, 67 N.W. 485, 489, 37 L.R.A. 434; Odiorne v. Mason, 9 N.H. 24; Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 82, 43 N.E. 427; Read v. Toledo Loan Co.,68 Ohio St. 280, 67 N.E. 729, 62 L.R.A. 790, 96 Am. St. Rep. 663; Ardmore Nat. Bank v. Briggs M. S. Co., 20 Okla. 427, 94 P. 533, 23 L.R.A. (N.S.) 1074, 129 Am. St. Rep. 747, 16 Ann. Cas. 133; Keene Guaranty Sav. Bank v. Lawrence, 32 Wash. 572, 73 P. 680; Garcia v. Leal, 30 N.M. 249, 231 P. 631.

6. The general rule as to the requirement to overcome the certificate of acknowledgment is stated in 1 C.J. p. 896, as follows: "With one possible exception, the courts are all agreed that a bare preponderance of evidence is not sufficient to overcome the presumption in favor of a certificate of acknowledgment regular on its face; nor is loose and inconclusive evidence merely creating a doubt as to the truth of the certificate or contradicting it by implication only sufficient, but a certificate regular on its face can be overthrown only by evidence so clear, strong, and convincing as to exclude all reasonable controversy as to the falsity of the certificate. Indeed, some of the cases go to the extent of requiring the same degree of proof as is necessary in criminal cases, that is, proof beyond a reasonable doubt."

Of the courts cited above holding that an acknowledgment is ministerial, those which have considered the question and hold in accordance with the text just quoted from 1 C.J. are: Gray v. Law, 6 Idaho, 559, 57 P. 435, 96 Am. St. Rep. 280; Currier v. Clark, 145 Iowa, 613, 124 N.W. 622; Duff v. Virginia Iron, etc. Co., 136 Ky. 281, 124 S.W. 309; Gritten v. Dickerson, 202 Ill. 372,66 N.E. 1090; Jaworski v. Sujewicz, 334 Ill. 19, 165 N.E. 147; Rouse v. Witte, 81 Neb. 368, 116 N.W. 43; Goulet v. Dubreuille,84 Minn. 72, 86 N.W. 779; Black v. Purnell, 50 N.J. Eq. 365;24 A. 548; Albany County Sav. Bank v. McCarty, 149 N.Y. 71,43 N.E. 427; Willis v. Baker, 75 Ohio St. 291, 79 N.E. 466; Western Loan, etc. Co. v. Waisman, 32 Wash. 644, 73 P. 703; Winn v. Willmott,138 Okla. 177, 280 P. 808; Futhey v. Potts (Mo. Sup.),204 S.W. 180; Garcia v. Leal, 30 N.M. 249, 231 P. 631.

Thus we see that nearly all of the states in which it is held that the taking of an acknowledgment is a ministerial act have held that the evidence to overthrow a certificate of acknowledgment must be clear, convincing, cogent, and establish beyond a reasonable doubt that the party did not acknowledge as certified. The other jurisdictions mentioned which hold the taking of an acknowledgment to be ministerial do not seem to have had occasion to pass upon the pivotal question in this case.

Though we have taken the time to investigate this question, we do not think it very material, for the reason that nearly all of the jurisdictions make their conclusions turn upon the question of public policy, and it is just as sound a public policy to hold that a certificate of acknowledgment should not be lightly overturned in a state where it is held to be a ministerial act, as where it is held to be a judicial act.

In the following jurisdictions, among others, in which it is held that the taking of an acknowledgment is a ministerial act, it is held that the unsupported evidence of a grantor is insufficient to overthrow a certificate of acknowledgment: Gray v. Law, supra; Houlihan v. Morrissey, 270 Ill. 66, 110 N.E. 341, Ann. Cas. 1917A, 364; Mutual Life Ins. Co. v. Corey, 135 N.Y. 326,31 N.E. 1095; Currier v. Clark, 145 Iowa, 613, 124 N.W. 622; Goulet v. Dubreuille, supra; Baldwin v. Snowden, 11 Ohio St. 203, 78 Am. Dec. 303; Western Loan S. Co. v. Waisman, supra; Adams v. Smith, 11 Wyo. 200, 70 P. 1043; Comings v. Leedy, 114 Mo. 454, 21 S.W. 804.

In Rouse v. Witte, supra, it was said that the testimony of the grantor only slightly corroborated is insufficient to overcome the certificate of acknowledgment, and it is said in Van Orman v. McGregor, 23 Iowa, 300, and Herrick v. Musgrove,67 Iowa, 63, 24 N.W. 594, that this is especially true when the certificate is supported by the testimony of the certifying officer. It was held in Ford v. Osborne, 45 Ohio St. 1,12 N.E. 526, that the certificate of the officer will not usually be overcome by the testimony of a married woman corroborated by her husband.

In Black v. Purnell, 50 N.J. Eq. 365, 24 A. 548, it was held that the certificate supported by the testimony of the officer will not be overcome by the testimony of a married woman corroborated by the testimony of her husband.

In McGuire v. Wilson, 5 Neb. (Unof.) 540, 99 N.W. 244, it was held that the certificate of the officer must stand as against the testimony of the wife and her husband.

In Chaffee v. Hawkins, 89 Wash. 130, 154 P. 143, 157 P. 35, 37, the court said: "To overcome a formal instrument and certificate of acknowledgment, the proof must be clear, cogent, and convincing. This is obviously a requirement of more than a bare or even a measurable preponderance of the spoken testimony. It means that the testimony of witnesses shall not be weighed the one against the other only, but that the testimony of the one shall be measured against the other, supported as it is by one of the strongest presumptions of fact known to the law; that is, that an acknowledgment to a deed formally certified imports verity."

In Albany County Sav. Bank v. McCarty, 149 N.Y. 71,43 N.E. 427, 430, it is said: "The rule governing the action of trial courts, as well as appellate courts, with power to review the facts, seems to be uniform in all the states to the extent of requiring that a certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty."

In Parry v. Reinertson, 208 Iowa, 739, 224 N.W. 489, 63 A.L.R. 1051, it was held that it requires more than the unsupported testimony of the grantor to overcome an acknowledgment.

To the same effect is Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756,141 S.W. 406.

In Bennett v. Edgar, 46 Misc. 231, 93 N.Y.S. 203, it was said that to overcome the certificate of acknowledgment the proof must be so clear and convincing as to amount to a moral certainty.

Many authorities seem to attach considerable weight to the testimony of the officer certifying to an acknowledgment in support of the statements contained in the certificate (1 C.J. 895, n. 54), but we do not deem it necessary to consider them.

7. It is contended that where presumptions are indulged in favor of a certificate of acknowledgment it is only after it has been admitted or established that there was an appearance by the grantor before the notary and some kind of an acknowledgment shown.

Such cannot be the rule in Nevada. Section 1483 N.C.L. provides that when an acknowledgment is by an individual the certificate shall certify that the grantor "personally appeared before me, a notary public (or judge or other officer * * *), in and for ______ County [name of grantor] known (or proved) to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he (or she) executed."

In view of this section and the further fact that the prima-facie presumption is in favor of the certificate, there can be no merit in the contention. 8, 9. As to the fourth contention of respondent, we must say that, notwithstanding what was said in Knox v. Kearney, 37 Nev. 393,142 P. 526, we are thoroughly satisfied it has no application to the situation in hand. That was a case not dealing with acknowledgments to deeds, and public policy demands that the rule we have stated be recognized and enforced.

If we were to take any other view than the one indicated, titles to real estate in this state would be so insecure that no one would dare purchase real property in many instances. If we were to take the view contended for, the repudiation of acknowledgments might develop into a racket. All that a grantor would have to do in case of the death of the officer taking his acknowledgment would be to flatly contradict the acknowledgment in order to set aside the conveyance.

Using language similar to that used by a distinguished jurist some years ago, it would shock the moral sense of a community to say that testimony in behalf of a grantor who sees a fortune in his grasp, other than clear, cogent, convincing and amounting to a moral certainty, may destroy the deliberate act of an officer appointed by law to certify to acknowledgments.

We are of the opinion that the conclusion and order formerly made were proper, and now so order.