January 11, 1888.)
w: D. Mi880uri, w: D.
A mortgage purported to be signed by the female defendant by making her mark, and the certl1icate of acknowledgment was in due form, but such defendant denied .the execution, and,testi1ied that the justice, with whom she was well acquainted, called at her house and signed her name to the mortgage. and executed the certi1icate in her presence. but without addressing her or asking her consent. There was evidence to sbow that she had taken part in the negotiation for the loan,andshe admitted being present with her husband when the money was obtained. Held. that the evidence was not sufficient to impeach the execution of the mortgage.
In Equity. Bill to foreclose a This suit was brought by Samuel Mather against Elizabeth T. Jarel, the owner of tbe mortgaged properly, and her husband, John S. Jarel. BotsfOrd&-' Williams, for complainant. HarklesS' &- Burr, for defendants: , THAYER,J. This is a bill inequity to foreclose a mortgage on lands situated in Barton county, Missouri. The mortgaged premises belong, to the defendant Mrs. Elizabeth T. Jarel,who is a married woman and the, wife of her co-defendant; John S. Jarel. Mrs. Jarel defends the action on the ground that she neither signed nor acknowledged the mortgage in question. There is no other defense to the bill by either defendant. Thejnortgage purports to have been signed by Mrs. Jarel by making hermark,and her signature thereto is attested by the justice before whom the mortgage purports'ter have been acknowledged. The certificate()f acknowledgment is iridue forJl1 oflaw and by the proper 'officer,but the contention is that the certificate is false, , In some states (as is well known) a certificate ot acknowledgment to a mortgage can only be impeached on the ground of fraud; unless fraud is showIdhe,certifieate is conclusive of the facts it asserts. . RU88ell v. TheologicalUnidri; 73 Ill. 337; Johnsron v. Wallace, 53 Miss. 338; and see note to Paxton v. Marshall, 18 Fed. Rep. 365, where the cases are bollated; . In bthci' jurisdictions (and notably in Missouri) a certificate of acknowledgment is regarded as prima facie evidence of the matters therein stated, and it may be contradicted and overthrown, although no fraud is established. Wannell v. Kern, 57 Mo. 478; Steffen v. Bauer, 70 Mo. 399. But even in those states where a certificate of may be overcome without proof of fraud, the rule is that the certificate is proof of a'high grade of the facts it asserts, and that it cannot be overthro*n except by proof that is clear, cogent, and convincing. Bohan v. CWJey, 5 Mo. App. 101; Biggers v. Building Co., 9 Mo. App. 210. And such is also the rule announced by the supreme court of the United States in Insurance Co. v. Nelson, 103 U. S. 548; Young v. Duvall, 109 U. S. ti73, 3 Sup. Ct. Rep. 415. A less stringent rule than the one last stated \vould render titles to real estate very insecure; therefore, public policy
:MATHER V. JAREL.
demandsthat the foregoing rule, as to the kind of proof required to overcome a certificate of acknowledgment, should be inflexibly enforced. In the present case, I have made a critical examination of the testimony relied upon by the defendant to overcome the ce,rtHicate of acknowledgment"andwbile I consider myself bound by the Missouri rule onthe subject, I have no hesitation in holding that it is insufficient to invalidate the certificate. I might add that there are several circumstances which lead me to regard the testimony in question with great distrust. The mortgage appears to have been executed and acknowledged in the presence of but four persons, namely, the two defendants (Mr. and Mrs. Jarel) and their daughter, then aged 10 years, and the justice of the peace who attested Mrs. Jarel's signature and took het' acknowledgment·. Th;e justice died about 10 months subsequent to the execution of the mortgage, and it WlUil more than a year after,his death before, either of the defendants said or did anything (at least in public) to discredit the acknowledgments. AI3 ·the case there is the certificate of the justice in due forJD on the one hand, .which. was not uqtil aftl1r his death, ,and on the other, the testimony of Mrs. Jarel, her husband, a,nd young daugllteJ.',all of WhOlD: ,are directly interested in impeaqhing :Qfflcer's certifi¢ate.The justice is shown to have been a man 'wore . than ordinary capacity and intelligenc,e, and of unimpeachable chll'faeter, whob.ad had more ,than six years' experience in the discharge oObedu-ties of his office., ;F,urthermore,he had no personal interest in ,action such as furnish a motive. for m!tking a false cex:tificate. :aut 'rhe account given by tbe defendant and her husband of w:pen the mortgage was when in ,connection with what was said and done. by thelll previQusly Bupsequently, dUllS 'not bear the impress of probability unless it'be . that both Qfthe defendants are destitute Qf moral worth or even COmmon ,honesty:.: . .', .' . . ., .. .'. , WithQ'Q,t:entering further into details, it will suffice to say that accord:illg tothea.dmissions of Mrs. Jarel it appears that she was that an application fQra loan on herpropElrtybad been made by her,huspandj that she prilsent wben. the was by the loan agent with a view of making the loan, and although the appljcation was. drll-ftep j,n her although she did not the loananq,pali re,;solved:q.l>t .mortgage"tl1at she neve):theless held her :peaqeand suffered the applicatiop togo also appears, by hElr own admission, that she was advised of the acceptance of the proposed loan and of the preparation of the necessary papers, and that a justic6 who lived in the neighborhood, and with whom she was well acquainted , would call to take her acknowledgment. Her statement then is thaI when the justice called at her house and the mortgage and bonds wert, handed to him in her presence. he sat down in the same room with her, and, without addressing a word to her, or asking her consent, plOceeded to sign her name both to the mortgage and bonds, and to execJte. the certificate of acknowledgment. Her further statement is that she made no protest or objection to what was done in her presence; th8'; she
was a silent spectator ofthe whole proceeding, and suffered the officer to sign her name to the mortgage and to depart without a word of dissent. ThEl next day, according to her' own admission, she went with her husband to the loan agent, and saw the'mortgage delivered, and the money obtained. A portion of the money so obtained was immediately spent in purchasing wire to fence a portion of her land. Mrs. Jarel appears from her testimony to be a woman of more than ordinary spirit and resolution, and of fair intelligence. She does not claim to have stood in fear ofher husband, or to have acted under duress then or at any other time. " Taken altogether the testimony of the defendant proves too much. It shows that the account of what took place when the mortgage was signed is either very much distorted, and therefore should not be credited, or 'that Mrs. Jarel entered into a conspiracy with her husband to defraud the mortgagee 'by obtaining money On what was known to be a worthless security, in that Hew her testimony should be rejected as wholly tinworthyof credence. The dilemma 'in which her testimony places her is so that at one period of her cross-examination she was forced to, 'say that' she did not know it was wrong to let her husband obtain money on a. pretended mortgage which she had not signed. It is perhaps unne'cessary to pursue the subject further, but I will add that is testimony in the case, which I see no reason to distrust, to that when the application for the loan upon her property Was prepared, Mrs. Jarehiot only did riot object to the loan, but took an activepiut hi the conversation, and herself gave considerable information to ,the loan agent relative to the mortgaged property,which, in part at least, influenced him to recommend the loan to the mortgagee. There to the effect that she was also present on one is also ctedible' occasion at the agent's office before the money to be advanced on the had arrived, and 'expressed considerable dissatisfaction because pf its non-arrival, and because of the delay in closing the transaction. While this testimoriy has no immediate bearing on the question whether was duly taken, nevertheless it does demonstrate that her she knowingly practiced a fraud if she had predetermined not to execute the n)ortgage, and if her testimony as to the Dianner in which the justice took her;adknowledgmerit is,to be credited.' , '111 any view ofthe case, the evidence is wholly insufficient to impeach th:e O$.cer's certificate; and as that is the sole defense attempted, a decree ,of must be 'entered. It is so ordered-.
MATTHEWS V. WARNER.
MATTHEWS V. WARNER
(Oin'cuit Oourt, D. Ma88achusetts.
The plaintiff gave his brother a mortgage to secure a loan. This brother informed hiI1l that he wished to assign the mortgage to a creditor whom he owed; to this plaintiff made no objection. Held, that the plaintiff is estopped from denying that the mortgage was held to secure his brother's. debts to the creditor. 1 .
In Equity. On motion to dismiss. John Lowell. John F. Dillon, and W. A. Abbott, for complainant. J. B. Warner, for defendants.
COLT, J. The main issue involved in this case has been before this court, in a suit brought by Virginia B. Matthews, wife of the plaintiff, against.thesedefendants. 6 Fed. Rep. 461, 112U. S. 600,5 Sup. Ct. Rep. 312. The pill is brought to recover the proceeds of certain mortgage bonds, which were delivered by the plaintiff to the defendants, Warner and Smith, trustees, in substitution for a certain bond ior $250,000, made by the plaintiff to his brother Nathan Matthews, bearing date May 8, 1875, secured by mortgage on real estate in New York city. The bond and mortgage were assigned May 13, 1875, by Nathan Matthews to 'thomas Upham, who, having become insolvent, transferred them to the defendants, Warner and Smith, in trust for the benefit of his The contention of the plaintiff is that the bond and mortgage were given by him to his brother Nathan, to secure certain loans Nathan made to him, and that the assignment by Nathan to Upham was intended to se.cure only the payment of the plaintiff's indebtedness to Upham, and was not intended to secure whatever debts Nathan owed Upham. Vpop. substantially the same evidence (except that Nathan Matthews was. not called as a witness in this case) this court, in the 'Ch8e of Virginia ,B. Matthews, says:
"It is clear that Upham had let a great deal of money to Nathan Matthews, and that he ,held valuable securities for its repayment, which he surrendered in exchange'for the bond and mortgage of Edward Matthews; and that he had no notice or knowledge of any dealings between the brothers which would injuriouslyaffl!ct his title. Upon the preponderance of evidence, I find that Edward made the mortgage with knowledge that it ,was to be used to secure whatever debts! Nathan owed Upham; or that it was so.made and assigned that Upham against Edward. the right to believe so."
The supreme court. in their opinion in that case, placed their decision on the ground that Mrs. Matthews had no real /)wnership in the bonds. At the same time, the court make use of the following language as to the assignment to Upham: "It seems to be clear that this assign1 The protection of an estoppel extends to anyone claiming under the person to whom the declarations or admissions were made. Griffiths v. Sears, (Pa.) 4 Atl. Rep. 493; Wardlaw v. Rayford, (S. C.) 8 S. E. Rep. 71.