Homœopathic Mutual Life Ins. Co. v. Marshall.

THE CHANCEllor.

The bill is filed to foreclose a mortgage for $4,000 and interest, dated January 25th, 1874, given by Igene M. Marrenner and her husband to the complainant, on land belonging to Mrs. Marrenner, situate in the city of Elizabeth. Just before her marriage to her present husband, Mrs. Marrenner (who was then a widow) executed a deed, dated November 1st, 1873, conveying the mortgaged premises and another lot of land on the opposite side of the same street, to her father, Daniel D. T. Marshall, in trust for her use for life, and, at her death, to convey the premises thereby granted to her heirs at law. A short time after her marriage to Mr. Marrenner, Mr. Marshall negotiated and obtained for her a loan of $4,000 from the complainant, on the security of the mortgage in suit. It appears to have been necessary to raise the money to save her property, and she seems to have had no other means of raising it.

On both properties there were two mortgages, which it was necessary to pay off in order to prevent foreclosure, and there were also unpaid municipal assessments which threatened her title. The loan was made to obtain the requisite money to satisfy these encumbrances, and, with the exception of the reasonable expenses attending the loan, the money was so applied.

18 Md. 305; see Byer v. Etnyre, 2 Gill 150); in Pennsylvania (Heeter v. Glasgow, 79 Pa. St. 79; Miller v. Wentworth, 82 Pa. St. 280; Singer Manf. Co. v. Rook, 84 Pa. St. 442; Louden v. Blythe, 16 Pa. St. 532; Williams v. Baker, 71 Pa. St. 476; Hoffman v. Coster, 2 Whart. 453; Hornbeck v. Mut. Build. Ass'n, 20 Alb. L. J. 212); in Ohio (Baldwin v. Snowden, 11 Ohio St. 203; Kilbourn v. Fury, 26 Ohio St. 153; see Truman v. Lore, 14 Ohio St. 144; Johnston v. Haines, 2 Ohio 279); in Texas (Hartley v. Frosh, 6 Tex. 208; Pool v. Chase, 46 Tex. 207); in Illinois (Hill v. Bacon, 43 Ill. 477; Graham v. Anderson, 42 Ill. 514; Eyster v. Hatheway, 50 Ill. 521; Lickmon v. Harding, 65 Ill. 505; Calumet Co. v. Russell, 68 Ill. 426; Kerr v. Russell, 69 Ill. 666; see Russell v. Baptist Union, 78 Ill. 337; McPherson v. Sanborn, 88 Ill. 150); in North Carolina (Woodbourne v. Gorrel, 66 N. C. 82; see Harrell v. Elliot, 2 Hayw. 68; Paul v. Carpenter, 70 N. C. 502; Suddereth v. Smyth, 13 Ired. 452; Lucas v. Cobb, 1 Dev. & Bat. 228); in Tennessee (Mount v. Kesterson, 6 Coldw. 452; Finnegan v. Finnegan, 3 Tenn. Ch. 510); in Michigan (Norton v. Nichols, 35 Mich. 148); in Mississippi (Johnston v. Wallace, 53 Miss. 331; Stone v. Montgomery, 35 Miss. 83; see Allen v. Lenoir, 53 Miss.

Homœopathic Mutual Life Ins. Co. v. Marshall.

The plan adopted by Mr. Marshall for securing the loan, was to reconvey the property to Mrs. Marrenner, in order to put an end to the trust declared in the deed of 1873, and re-invest her with the title, so that she might, with her husband, give the mortgage. This was done, and the mortgage was executed, and the property was, after the giving of the mortgage, reconveyed by Mr. and Mrs. Marrenner to Mr. Marshall subject to it, on the same trust as was expressed in the deed of 1873. Mr. Marshall and the complainant (of which he was president) acted in entire good faith in the entire transaction, and all that was done was done strictly in the interest and for the great advantage of Mrs. Marrenner. She and her husband, however, though they admit that they executed the mortgage and deed of reconveyance, swear that they had no knowledge of the character of the transaction, but having full confidence in Mr. Marshall, signed the papers without knowing or being informed what they were, or asking any explanation on the subject.

The deed of conveyance to Mrs. Marrenner in terms, indeed, declared that it was intended for the purpose of putting an end to the trust, and the complainant appears, therefore, to have had notice of the existence of the trust declared in the deed of 1873. But no trust was, in fact, created by the deed of 1873. Mrs. Marrenner testifies that

321); in Virginia (Harkins v. Forsyth, 11 Leigh 294; Tod v. Baylor, 4 Leigh 498; Carper v. McDowell, 5 Gratt. 212); in Alabama (Miller v. Marx, 55 Ala. 322; Cahall v. Citizens Ass'n 61 Ala. 232); in Maine (Greene v. Godfrey, 44 Me. 25); in Rhode Island (Kavanaugh v. Day, 10 R. I. 393); in England (Bancks v. Ollerton, 26 Eng. L. & Eq. 508); in Canada (Thompson v. Thompson, 2 Ch. Cham. 211; see Heward v. Scott, Id. 274); in New Brunswick (Robinson v. Chassey, 1 Hannay 50).

In several states such acknowledgment is only prima facie correct, by statute, as in California (Landers v. Bolton, 26 Cal. 406; see Fogarty v. Finlay, 10 Cal. 239); in Kentucky (ubi supra); in Wisconsin (Eaton v. Woydt, 32 Wis. 277); in New York (Jackson v. Schoonmaker, 4 Johns. 161; Priest v. Cummings, 16 Wend. 617; Watson v. Campbell, 28 Barb. 421; see Rexford v. Rexford, 7 Lans. 6; Wood v. Bach, 54 Barb. 134; Richardson v. Pulver, 63 Barb. 67).

The cases holding such certificate conclusive, consider the act of the officer taking the acknowledgment as judicial (Paul v. Carpenter, 70 N. C. 502; Scanlan v. Turner, 1 Bailey 421; Kerr v. Russell, 69 Ill. 666;

Homœopathic Mutual Life Ins. Co. v. Marshall.

it was not read to her, nor were its contents made known to her before she signed it; that she signed it because her father wished her to do so, and that she knew nothing about it until, as she expresses it, "this trouble came up," referring to the foreclosure proceedings, or the threat that such proceedings would be instituted, which was some years after the execution of the deed. She did not intend to create a trust, and the trust declared by the deed was not, therefore, binding on her. Garnsey v. Mundy, 9 C. E. Gr. 243.

She and her husband both swear, as before stated, that they knew nothing of the contents, purport or character of the complainant's bond or mortgage, though they signed them, and that they did not, not did either of them, acknowledge the latter, though a certificate of acknowledgment, containing all the statutory requisites, is endorsed thereon, and signed by a duly authorized officer, by whom the execution of the deed was witnessed. She swears, also, that she knew nothing of the contents or character of an affidavit which purports to have been made by her at the time of the signing of the bond and mortgage, and which was delivered to the complainant. It was to the effect that she was the mortgagor in the mortgage in suit, and was the owner of the mortgaged premises in fee, by virtue of a devise thereof in the will of her then late husband, Charles R.

Withers v. Baird, 7 Watts 227; Heeter v. Glasgow, 79 Pa. St. 79; Kottman v. Ayer, 1 Strobh. 576; Suddereth v. Smyth, 13 Ired. 452; Ford v. Gregory, 10 B. Mon. 175; Bancks v. Ollerton, 26 E. L. & Eq. 509; Johnston v. Slater, 11 Gratt. 321; Menhennet's Case, L. R. (5 C. P.) 16; Black v. Gregg, 58 Mo. 565; Hornbeck v. Mut. Build. Ass'n (Pa.), 20 Alb. L. J. 212; Wilson v. Traer, 20 Iowa 231; Hammers v. Dole, 61 Ill. 307; Brown v. Moore, 38 Tex. 645; Sutton v. Sution, 1 Dev. & Bat. 585); while the other class deem such acts merely ministerial (Elliott v. Peirsol, 1 Pet. 341; Lynch v. Livingston, 8 Barb. 463, 6 N. Y. 422; Emmal v. Webb, 36 Cal. 197; Odiorne v. Mason, 9 N. H. 24; Frink v. Pond, 46 N. H. 125; Gill v. Fauntleroy, 8 B. Mon. 179. See Dawson v. Thurston, 2 Hen. & Munf. 132; Hamilton v. Pitcher, 53 Mo. 334).

The officer should only certify to facts which he personally knows (Watson v. Campbell, 28 Barb. 421; Dewey v. Campau, 4 Mich. 565; Fisher v. Meister, 24 Mich. 447); as where the grantor is deaf and dumb (Harper's Case, 6 C. B. 732; Brown v. Brown, 3 Conn. 299; Morrison v. Morrison, 27 Gratt. 190); and he is personally responsible for any damages

Homoeopathic Mutual Life Ins. Co. v. Marshall.

Honeywell; that there was no other encumbrance on the property, except a mortgage to William J. Magie for $2,500, which was to be paid out of the loan; that the complainant's mortgage was a valid and subsisting lien on the premises therein described, to the full extent of the mortgage; that there were no equities or defences, latent or patent, to or against it or whereby it could be, in any manner, impaired or affected; that there were no judgments against her, and that she was over twenty-one years of age. The affidavit purports, by the jurat, to have been sworn to by her before the same officer. She admits that she signed it, and it is not alleged that there was any fraud or duress.

Mr. and Mrs. Marrenner testified as witnesses in this cause, in the fall of 1879, more than five years and a half after the giving of the bond and mortgage, and though they swear positively, they swear from recollection merely. The certificate, however, must, in the absence of fraud, be regarded as conclusive.

It is true, in Wells v. Wright, 7 Hal. 132, it was held by the supreme court that a certificate of acknowledgment under the fourth section of the act "respecting conveyances," which provides that the certificate shall entitle the deed to admission in evidence without proof, is only prima facie evidence and may be disproved; and Lambert v. Lam

arising from his own mistakes (Fogarty v. Finlay, 10 Cal. 239), and also his sureties (Rochereau v. Jones, 29 La. Ann. 82).

How far a foreign certificate has been deemed conclusive (Sessions v. Reynolds, 7 Sm. & Marsh. 130; Lacey v. Davis, 4_ Mich. 140; Wright v. Bundy, 11 Ind. 399; Eaton v. Woydt, 32 Wis. 277; Livingston v. McDonald, 9 Ohio 168; Mott v. Smith, 16 Cal. 533; Keller v. Moore, 51 Ala. 340; Hart v. Ross, 57 Ala, 518; McPherson v. Featherstone, 37 Wis. 632; Welles v. Cole, 6 Gratt. 645; Coldwell's Case, L. R. (10 C. P.) 667 ; Southerin v. Mendum, 5 N. H. 420; Crispen v. Hannaran, 50 Mo. 415).

Whether the court will take judicial notice of such officer, where he omits to describe himself as such or let it be shown aliunde (Livingston v. McDonald, 9 Ohio 168; Bancks v. Ollerton, 26 Eng. L. & Eq. 508; Robinson v. Chassey, 1 Hannay (N. B.) 50; Rhodes v. Selin, 4 Wash. C. C. 718 ; Jeffreys v. Collis, 4 Dana 470; Russ v. Wingate, 30 Miss. 440; Graham v. Anderson, 42 Ill. 514; Etheridge v. Ferebee, 9 Ired. 312; Suddereth v. Smyth, 13 Ired. 452; Keller v. Moore, 51 Ala. 340); or, after recording the instru

Homœopathic Mutual Life Ins. Co. v. Marshall.

bert (not reported), decided by Chancellor I. H. Williamson, is cited to the same effect. The question presented by the case in hand, however, is not a question of evidence, but of the sufficiency of the conveyance.

In Marsh v. Mitchell, 11 C. E. Gr. 497, it was said, indeed, on the authority of Wells v. Wright, that the certificate of the acknowledgment of a married woman is only prima facie evidence, and that the truth of the certificate may be disproved, and the decree in that case was affirmed by the court of errors and appeals (12 C. E. Gr. 631), for the reasons given by the vice-chancellor in his opinion, yet the question now presented as to the strength of the presumption in favor of the certificate, was not considered in either court. By our law (Rev. p. 154 § 9), the estate of a married woman in land in this state will not pass by her deed unless she shall have been previously examined as to her freedom from marital constraint in making the conveyance, and the acknowledgment be certified. And the act provides that, if of age, her deed, duly executed and so acknowledged, shall, if the acknowledgment be duly certified, pass her estate according to the deed. This acknowledgment stands in the place of the acknowledgment which was requisite in levying a fine of the land of a married woman. Such acknowledgment could not be avoided (except in equity for fraud) even

ment (Burgess v. Wilson, 2 Dev. 906. See Garrick v. Williams, 3 Taunt. 540; Rex v. Hooper, 3 Price 495).

Parol evidence is inadmissible, in the absence of fraud or duress, to supply omissions or correct mistakes of the officer (Harrell v. Elliot, 2 Hayw. 68; Barnet v. Barnet, 15 Serg. & R. 72; O'Ferrall v. Simplot, 4 Iowa 381: Stanton v. Button, 2 Conn. 527; Hayden v. Westcott, 11 Conn. 129; Chauvin v. Wagner, 18 Mo. 581, 544; Jamison v. Jamison, 3 Whart. 457; Leftwich v. Neal, 7 W. Va. 569; Wood v. Cochrane, 39 Vt. 544; Ennor v. Thompson, 46 Ill. 214; Hughes v. Wilkinson, 35 Ala. 453: Conn. Ins. Co. v. McCormick, 45 Cal. 580. See Angier v. Schieffelin, 72 Pa. St. 106; Van Sickle v. People, 29 Mich. 61; Robinson v. Barfield, 2 Murph. 390; Robinson v. Noel, 49 Miss. 253); and the magistrate cannot be a witness to impeach his own acts (Stone v. Montgomery, 35 Miss. 83; Greene v. Godfrey, 44 Me. 25; Elwood v. Klock, 13 Barb. 50; Central Bank v. Copeland, 18 Md. 305. See Truman v. Lore, 14 Ohio St. 144; Hoit v. Russell, 56 N. H. 559; Jansen v. McCahill, 22 Cal. 563).