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Hutchinson v. Ainsworth

63 Cal. 286 Court Cal. Decision date 1883-03-28 English

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p. 286
[Department Two
March 28, 1883.]
MARGARET M. HUTCHINSON, Appellant, v. A. G. AINSWORTH et al., Respondents.

Headnote

Tbansfeb—Defective Acknowledgment by Maubied Woman—Evidence.—The certificate of acknowledgment of an instrument by a married woman is defective when it does not state that the notary made her acquainted with the contents of the instrument upon an examination without the hearing of her husband; and it is not error to prohibit its introduction in evidence.
Id.—Pbactice—Pleading.—When an acknowledgment is properly made but defectively certified, a party interested may have an action to correct the certificate ; and where, in foreclosure proceedings, objection is made to the introduction of the mortgage on the ground that the certificate is defective, the plaintiff should be permitted to amend the complaint and prove that the acknowledgment was made in compliance with the statute, and have judgment reforming the certificate.
Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.
The action ivas brought to foreclose a mortgage made by defendant Anna Ainsworth, wife of defendant A. G. Ainsworth, upon her separate property, given to secure the payment of their joint note.
The certificate of acknowledgment attached to the mortgage was as follows: —
“State of California, County of Alameda.}ss.
“ On this third day of September, A. D. one thousand eight hundred and seventy-eight, personally appeared before me, Will. H. Burrall, a notary public in and for said county, Anna Ainsworth, described as a married woman and the wife of A. G. Ainsworth, whose name is subscribed to the annexed instrument as a party thereto, and who is personally known to me to be the person whose name is subscribed to the said annexed instrument as a party thereto; and she, having been by me first made acquainted with the contents of said instrument acknowledged to me on examination, apart from and without the hearing of her said husband, that she executed the same, and that she does not wish to retract the execution of the same.
“In Avitness Avhereof I have hereunto set my hand and affixed my official seal the day and year in this certificate first above Avritten.
“ [notarial seal.]
Will. H. Burrall,
“Notary Public.”
p. 287
The defendants objected to the introduction of the mortgage on the ground of insufficiency of the acknowledgment, and the court sustained the objection. The plaintiff then moved to amend the complaint, and be allowed to prove that the acknowledgment was taken in exact conformity to the requirements of the Code, and for a judgment reforming the certificate. This motion the court denied, and gave judgment for plaintiff for the amount of the note, but denied the prayer for a foreclosure of the mortgage.
William Reade, and W. C. Belcher, for Appellant.
Cited Wedel v. Herman, 59 Cal. 507 ; Murphy v. Rooney, 45 Cal. 78 ; Lestrode v. Barth, 19 Cal. 660 .
Geo. W. & W. B. Tyler, for Respondents.
The authorities are almost unanimous that a deed by a married woman improperly acknowledged is void. (1 Bish. Married Woman, § 589; Knowles v. McCamly, 10 Paige, 342; Steele v. Thompson, 14 Binn. 84 ; Baxter v. Bodkin, 25 Ind. 172 ; Barry v. Donley, 25 Tex. 737 ; Willes v. Gattman, 53 Miss. 721 ; Marriner v. Saunders, 5 Gilm. 125 ; Barrett v. Tewksbury, 9 Cal. 13 ; Ewald v. Corbett, 32 Cal. 493 ; McLeran v. Benton, 43 Cal. 467 ; Morrison v. Wilson, 13 Cal. 498 ; Leonis v. Lazzarovich, 55 Cal 52 , and cases there cited.)
If the deed is void, it certainly cannot be reformed as against Anna Ainsworth and her grantees, either at law or in equity.
Besides the cases cited supra, the following are in point: Leftwitch v. Neal, 7 W. Va. 569 ; Hamar v. Medsker, 60 Ind. 413 ; Martin v. Davelly, 6 Wend. 1 ; Wentworth v. Clark, 33 Ark. 432 ; Callahan v. Callahan, 4 Tex. 61 ; Butler v. Buckingham, 5 Day, 492 ; Lane v. McKeen, 15 Me. 304 ; Russell v. Ramsey, 35 Ill. 362 ; Dickinson v. Glenney, 27 Conn. 104 ; Selover v. A. R. Co. 7 Cal. 266 ; Barrett v. Tewksbury, 9 Cal. 13 ; Leonis v. Lazzarovich, 55 Cal. 52 .
As regards the admission of paroi evidence, the following authorities are directly in point; all holding that a defective acknowledgment of a married woman’s deed cannot be helped by paroi evidence. (Russell v. Ramsey, 35 Ill. 362 ; Trimmer v.
p. 288
Heagy, 16 Pa. St. 484 ; Hayden v. Wescott, 11 Conn. 129 ; Elliott v. Peirsol, 1 Peters, 328; Elwood v. Klock, 13 Barb. 50 ; O'Ferrall v. Simplot, 4 Iowa, 381 ; Wilkinson v. Getty, 13 Iowa, 157 ; Looney v. Adamson, 48 Tex. 619 ; Jourdan v. Jourdan, 9 Serg. & R. 268 ; 1 Bish. Married Women, § 591; Landers v. Bolton, 26 Cal. 408 .)
In all dealings with married women the maxim caveat emptor must be applied, and the doctrine of estoppel in pais does not apply. (Morrison v. Wilson, 13 Cal. 495 .)

The certificate of acknowledgment Avas defective, in that it did not state that the notary, upon an examination Avithout the hearing of her husband, made the married woman acquainted with the contents of the instrument. Section 1186 of the Civil Code requires that such separate examination must embrace as AAmll the making her acquainted with the contents of the instrument as the acknoAAdedgment by her; and section 1191 gives the form of the certificate in very plain language. The court, therefore, did not err in sustaining defendants’ objection to the admission of the mortgage in evidence.

When the acknowledgment is properly made, but defectively certified, a party interested may haAre an action to correct the certificate. (§ 1202, Civ. Code.) We see no objection to the joining this action with the action for foreclosure. The court should have permitted plaintiff to amend her complaint and prove, if she could, that the acknowledgment was actually taken in compliance Avith the statute, and have judgment correcting the certificate.

Judgment and order reversed and cause remanded for proceedings in accordance with this opinion.

Cases cited

Statutes and regulations cited