Adams v. Smith

70 P. 1043, 11 Wyo. 200, 1903 Wyo. LEXIS 3

• Court: Wyoming Supreme Court
• Decided: January 10, 1903
• Status: Published

Opinion

PoTTRR, JuSTICR.

In this action the plaintiff in error seeks to recover possession of certain real estate situated in Johnson County. Her suit was brought against John R. Smith and his wife, Agnes D. Smith. The latter defended on the ground that a part of the property was and had been the homestead of the defendants, and she had not executed any release thereof. Plaintiff in error was successful except as to the homestead. As to the premises constitutng such homestead, the defendant in error, Agnes. D. Smith, was found and adjudged to be entitled to the possession thereof. The plaintiff comes to this court alleging error in the judgment awarding the homestead premises to defendant in error, and in the order overruling her motion for new trial.

Counsel for defendant in error challenge the sufficiency of the motion for new trial to raise any question as to the sufficiency of the evidence to support the findings and judgment. The statute authorizes the vacation of a verdict of a jui'y, report of a referee or master or decision of the court for any of certain enumerated causes, among them being the following,- viz.: “That the verdict, report or decision is not sustained by sufficient evidence or is. contrary to law.” (R. S., Sec. 3746.) This case was tried to the.court without a jury; and there was a separate statement of conclusions of fact and law. The plaintiff claimed title under a foreclosure sale by virtue of the provisions of a certain mortgage executed by the defendants. The trial court found, among other things, that the defendant in error did not freely and voluntarily sign and acknowledge the mortgage; and did not acknowledge that she freely and voluntarily signed and acknowledged the same. As conclusions of law, it was found that the mortgage was void as to the homestead, for the reason that no legal acknowledgment of the execution thereof by defendant in error had been taken; 'and that she was entitled to the possession of said homestead free from any claim of the plaintiff.

The motion for new trial contains the following, among other grounds: “1. Because the finding of the court that the defendant, Agnes D. Smith, is entitled to the homestead described is against and contrary to the weight of the evidence and the law in the case. 2. Because the finding of the court that the said defendant, Agnes D. Smith, did not freely and voluntarily. execute and acknowledge the mortgage referred to is against and contrary to the evidence and the law of the case. 3. Because the finding of the court that the certificate of the notary to said mortgage, so far as the same related to the acknowledgment of said Agnes D. Smith, was false and untrue is against and contrary to the weight of the evidence and the law applicable to the case. 4. That the judgment of the court rendered in accordance with -the said findings is contrary to the law and to the weight of the evidence.”

. It seems to be the contention of counsel that the grounds above stated do not amount to an assignment that the decision is not sustained by sufficient evidence. The objection goes to the employment of the words, “against and contrary to the weight of the evidence.” But we are of the opinion that these words, as used in the motion, are adequate to challenge the sufficiency of the evidence to sustain the decision. Where the ground of a motion for new trial was that the findings were contrary to the evidence,, it was held sufficient to raise the question as to whether or not the findings were sustained by sufficient evidence. (White v. Beal & Fletcher Gro. Co., 65 Ark., 278. To the same effect, Collins v. Maghee, 32 Ind., 268.) In that case the court, by Mr. Justice Elliott, said: “It presents substantially the cause provided by the statute. If the verdict is not sustained by sufficient evidence, then it is contrary to the evidence.” In Ohio, it was said: “A verdict, report or decision should be regarded as against the weight of the evidence whenever the evidence is not sufficient to sustain it. A reviewing court, therefore, by force of the provision above noticed, that a new 'trial may be granted where the verdict, report or decision is not sustained by sufficient evidence, may grant a new trial because the verdict, etc., is against or contrary to the weight of the evidence.” (Weaver v. Ry. Co., 55 O. St., 491.) Where, in Wisconsin, a new trial was granted on the ground that the verdict was not supported by the evidence, the court said: “This- is the same as saying that it is-against the weight of evidence.” (Wilson v. City of Eau Claire, 89 Wis., 47. To the same effect, Slater v. Drescher, 72 Hun., 425; Metropolitan R. R. Co. v. Moore, 121 U. S., 558; Algeo v. Duncan, 39 N. Y., 313; McDonald v. Walter, 40 N. Y., 551.)

Moreover, the motion in the case at bar charges that the findings referred to, as well as the judgment, are against and contrary to law; in this respect using the language of the statute; and it is argued that as a matter of law the evidence is insufficient to sustain the judgment. We think the motion sufficiently presented to the trial court the questions discussed on this appeal.

The mortgage in question was executed in 1888. At that time the statute declaring that the owner or occupant of a homestead might voluntarily sell, mortgage or otherwise dispose of, or incumber the same, provided: “That every such sale, mortgage, disposal or incumbrance shall be absolutely void, unless the wife of the owner or occupant of such homestead, if he have any, shall, separate and apart from her said husband, freely and voluntarily sign and acknowledge the instrument of writing, conveying, mortgaging, disposing of or incumbering such homestead, and the officer taking her acknowledgment shall fully apprise her of her right and the effect of signing and acknowledging such instrument.” (R. S. 1887, Sec. 2784.)

The certificate of acknowledgment annexed to the mortgage stated that the grantors, naming them, being personally known to the officer as the persons whose names are subscribed to~the instrument, appeared before him in person and acknowledged “that they signed, sealed and delivered the said instrument of writing as their free and voluntary act for the uses and purposes therein set forth.” It also contained the following: “And the said Agnes D. Smith, wife of the said John R. Smith, being by me examined in reference thereto, and having had the nature and effect of said instrument explained to her by me, and she being by me fully apprised of her right, and the effects of signing such mortgage, acknowledged that she freely and voluntarily signed and acknowledged the same.” The mortgage contained a clause releasing the homestead on the part of the wife, Agnes D. Smith.

It is very clearly established by the testimony that whatever Mrs. Smith did toward the execution of the instrument was done while separate and apart from her husband. The notary who certified to the acknowledgment testified that it was taken when she was separate and apart from her husband; and it is evident, not only from his testimony, but from that of both Mr. and Mrs. Smith, that the former was not present when his wife signed and acknowledged the mortgage. Indeed, it is not claimed otherwise. There was no pretense on the trial, according to the record, that Mrs. Smith’s signature was obtained or her acknowledgment taken in her husband’s presence. No claim was then made, nor is it now contended, that she executed the mortgage by reaspn of coercion or undue influence on the part of .her husband. The certificate of acknowledgment failing to show that Mrs. Smith executed the mortgage separate and apart from her husband, the notary was examined as a witness to establish that fact. The certificate itself, however, shows substantially that the other requirements of the statute concerning the release by deed or mortgage of a homestead by a wife were complied with. It states that she had the nature and effect of the instrument explained to her by the officer, and that he fully apprised her of her right, and the effect of signing the mortgage, and that she acknowledged that she freely and voluntarily signed, and acknowledged the same.

The answer filed by defendant in error denied that she had ever conveyed or released her homestead interest in the premises, and alleged that the certificate of acknowledgment was false and unauthorized. That the issue presented may be clearly understood, it might be added that there was no allegation in the answer that defendant in error had been induced by fraud to sign and acknowledge the mortgage, or that she did so by reason of coercion or undue influence. The effect of. her answer is that she had neither signed nor acknowledged the instrument. The theory of the defense, as shown by the evidence, was that, although she appended her signature to the mortgage, she was not aware of its nature, and did not understand- it to be a mortgage.

The attempted impeachment of the certificate of the notary depends altogether updn the testimony of Mrs. Smith herself. She testified that she resided on the homestead known as the John R. Smith ranch, a portion of the land in controversy in this suit, and knew John B. Menardi (the notary) ; that she recalled the circumstances of his being at her house at the time when it was claimed she had signed and acknowledged the mortgage. She was then asked whether he had at that time read anything to her or 'not, to which she replied: “No, sir.” She also denied a statement made on the witness stand by the notary, that she nodded her head or said yes when, as claimed, she acknowledged the instrument. At first she stated that she did not at the time know on what business Mr. Menardi had come to the house; but qualified that answer by saying she was not positive as to his business there.

She admitted having signed a paper on the occasion referred to; in fact, she stated that she signed two papers; and it seems probable that there were two mortgages, but one only being in controversy here. She further testified that the notary did not refer to a mortgage, and did not tell her at the time that the paper she was asked to sign was a mortgage. She says: “He handed them to me folded, in this direction. There were two papers. He said: ‘Put your name to that.’ It was very late Saturday night and I was very tired and nervous. He said: ‘Sign your name to that,’ and I did. It was past the legal hour Saturday night.” Being asked if she knew she was signing a mortgage, she answered: “I did not, positively I did not.” She then admitted that she did not ask any questions as to the papers she was signing, but stated: “I signed the paper for my own benefit. He said it would be of advantage to me.” This occurred on cross-examination, which, being continued, she was asked the following questions: “You were talking with Mr. Menardi about signing the mortgage before that, were you hot?” She replied: “He asked me to sign a paper, and I said I would never sign a mortgage.” Her examination then proceeded as follows: Question: “You were talking about the mortgage, were you not?” Answer: “He did not refer to a mortgage at all.” Question: “Nothing said about a mortgage?” Answer: “No, sir.” Question: “Any of the time you were talking to him?” Answer: “No, sir.” Question: “What did he say this paper was ?” Answer: “He did not tell me.” Question: “You simply signed a paper that you did not know what it was, and did not ask any questions about it?” Answer: “I did what he told me.” Question: “So as long as it was not a mortgage, you were satisfied to sign it?” Answer: “I signed it under those circumstances, not thinking that I was signing a mortgage.”

On re-direct, she testified that -at the time the notary was talking to her about signing the paper, she told him she would not have any of her land conveyed, and the land should not be incumbered; that Mr. Smith had horses and cattle enough to pay his debts.

It will be observed that the sole effect of the testimony of Mrs. Smith is to challenge the statements in the certificate of the notary that the contents of the instrument were made known to her, that she was apprised of her rights in the premises, and that the effect of signing and acknowledging the paper was explained to her. There seems to have been no effort on her part to show that the paper was signed by her involuntarily, except so far as her denial of any knowledge of its character may have that effect.

Opposed to her testimony is that of the officer who took the acknowledgment; and we think also that the testimony of Mr. Smith, in effect, tends to controvert the -claim of ignorance of the nature and contents of the instrument on the part of his wife. In addition to the statements in the certificate of acknowledgment, Mr. Menardi testified that he read the mortgage to Mrs. Smith, and read the acknowledgment to her; and that at the time the mortgage was signed she did not state that she would not sign any paper conveying any land, or her interest in any land. But he testifies that the paper was signed about ten o’clock in the evening, and that about two hours before that she had refused to sign the mortgage; her principal objection being to releasing her homestead right. He testified that he went to the ranch at the request of Mr. Smith for the purpose of taking the acknowledgment of the mortgage, which was to be given as security for a loan Mr. Smith wished very much to make. That Smith had informed him his wife refused to sign a mortgage, but did not state to him her reasons; and he, Smith, could not talk satisfactorily to his wife, and begged him, Menardi, to go down and explain the situation to her, which he testified he did. He says that early in the evening, immediately after supper, Mrs. Smith said she would not sign any paper conveying any of her interest in any lands; but that she did not so state when the acknowledgment was taken. He says that he told her that her homestead was included; and that she was not induced to change her mind by any reference to the contents of the paper, but out of consideration for the benefit it would be to her husband and herself; and after she concluded to sign, she was willing that the homestead be included. The witness, referring to the circumstances more in detail, testified that after supper he remained to see Mrs. Smith about signing the mortgage, and she then stated that she would not sign; that they had talked it over before he came down; that he then left the house, and met Mr. Smith, and informed him that his wife had refused to sign the mortgage, and was positive about it. He told Smith he had explained the situation as he had been requested by him to do; that Smith replied “it was terrible,” or something to that effect, “to be situated in that way that his wife would not help him in his affairs;” that after Mrs. Smith was through with her work he went back to the house to see her. And it is clear that after he went back, as he testifies, the paper was signed. The effect of the testimony of Mr. Menardi is to clearly show that Mrs. Smith thoroughly knew what she was doing,.and understood that she was signing a mortgage including and releasing her homestead. It should be stated, as explanatory of some things already referred to as appearing in the testimony, that Mr. Smith . desired to borrow money with which to pay some debts. This explains what Mrs. Smith meant when she told Mr. Menardi, as she testifies, that her husband had horses and cattle enough to pay his debts.

Mr. Smith was examined as a witness on behalf of defendant, and he testified as follows: “He (Menardi) came there to my house to get my wife to sign the mortgage. We had a talk in the kitchen. Tt was getting late in the evening. Mrs. Smith positively refused to sign any mortgage on any real estate property. I left the nouse and went to feed the horses. When I came back to the gate in front of the house I met Mr. Menardi there. He told me that she would not sign the paper. I said, ‘Very well, the deal is off.’ Then he said, ‘Hold on, I will go back into the house; I will fix her.’ What was done and said after that, I know nothing about.”

Mr. Menardi, being called in rebuttal, admitted that Smith had said something to the effect that the deal was off when informed that the witness had not succeeded in securing the signature of Mrs. Smith, but he denied that he had said to Smith that he would “fix her,” or anything to that effect.

It thus appears from the testimony of both Menardi and Smith, that the matter of giving the mortgage was talked about in the presence of Mrs. Smith, and that she, at first, refused to execute any mortgage. It is, therefore, quite impossible to escape the conclusion that Mrs. Smith knew tnat her signature was desired to a mortgage.

She does not pretend that the paper she signed later during the same evening was represented to her as anything other than a mortgage; and it is difficult to conceive what Mrs. Smith thought the paper was, if she did not understand it to be a mortgage, about which they had beerf talking, and which she had refused to sign. We have studied the testimony with much care to ascertain whether she had been induced to alter her resolution, of to sign the document by any false statements or improper representations; but nothing of the kind is to be discovered in the entire record. She says that Menardi represented that it would be a benefit to her; but how he explained that it would amount to a benefit, she does not disclose.

It appears that, in a way, the officer taking the acknowledgment was connetced with the transaction of the loan to be secured by executing the mortgage. The application for the loan was made to him, but he testifies that he was not employed by or under the pay of the party from whom the loan was obtained; but that his services in making the loan were to be paid for, and were paid for by Mr. Smith. It seems that Mr. Menardi took applications for loans, and then secured the money to cover them from other parties. He was not otherwise interested in the transaction; and the trial court did not find that he was an interested person, and therefore disqualified from acting officially in taking the acknowledgment. Mr. Menardi, in fact, testified that it made no difference to him whether the papers were signed or not, as he had so many applications for loans that he could not get enough money to fill them; and that he had sent plenty of good applications to the mortgagee named in the instrument that could be substituted if the Smith papers were not signed.

In view, however, of the situation of Mr. Menardi in relation to the transaction, we have exercised greater care, if possible, to discern any evidence of undue influence upon Mrs. Smith, or concealment from her of the character and effect of the paper. She may have been prevailed upon against her own judgment to join in the execution of the mortgage; but' that is not sufficient to avoid it, in the absence of concealment, misrepresentation or fraud; there being no pretense of coercion, or that her signing was caused through fear. The learned District Court found that the certificate of acknowledgment was false in that Mrs. Smith did not freely and voluntarily sign and acknowledge the mortgage, and did not acknowledge that she freely and voluntarily signed and acknowledged the same. And, upon that finding, the mortgage was held void as to the homestead. The learned judge must have based his conclusion upon the theory that Mrs. Smith did not understand that she was signing a mortgage, and upon that theory alone, since the testimony does not disclose any other ground. That theory is supported by the evidence of Mrs. Smith; but is opposed by the testimony of the officer who took the acknowledgment, and, inferentially, at least, we think, by the testimony of Mr. Smith.

If this was an ordinary case of conflicting evidence, we might refuse to disturb the judgment, but it is not such a case. There are certain well settled principles to be observed where it is sought to impeach a certificate of acknowledgment.

It is contended by counsel for defendant m error that a certificate of acknowledgment should be regarded as conclusive, in the absence of fraud or duress; and it is argued that the provision of the statute (Sec. 2602) requiring the certificate of a notary, over his hand and official seal, to be received as presumptive evidence of the facts therein contained in all courts of the State, and permitting the same to be contradicted by any person interested as a party to a suit, is not applicable to certificates of acknowledgment, for the reason that the section is found in the chapter relating to notaries public; and that there is no similar provision affecting the certificates of other officers authorized by law to take acknowledgments. It is, therefore, insisted that, under a proper construction of the section,- its effect should be limited to notarial certificates other than certificates of acknowledgment. This presents an important question, but we think its determination unnecessary in this case, for the reason that if it be assumed that the section referred to covers certificates of acknowledgment, we regard the evidence as insufficient to support the finding and judgment of the court in respect to the acknowledgment.

It is a well settled rule, as well in those states where such a certificate is held or declared to be prima facie evidence only, as where it is held conclusive, in the absence of fraud or duress, that to impeach the certificate the evidence must be cogent, clear and convincing. (1 Devlin on Deeds, Sec. 531.) In Wisconsin it is said that the evidence must be perfectly clear, convincing and satisfactory. In the American and English Encyclopedia of Law the rule is stated to be that the evidence to impeach the certificate must be clear and convincing beyond a reasonable doubt. (1 Ency. L., 560.) And in C3rclopedia of Law and Procedure, that the proof to overthrow a certificate regular on its face must be so clear, strong and convincing as to exclude every reasonable doubt as to the falsity of the certificate. (1 Cyc., 623.) And many cases, are cited in support of the text in both of those works.

The burden of proof rests upon the party assailing the certificate, since a strong presumption exists in favor of its truth. The certificate itself is entitled to some consideration, where it is regular on its face. It is quite generally held that the unsupported testimony of the grantor is not sufficient to overcome a certificate regular on its face, especially where the certificate is supported by the testimony of the officer who took the acknowledgment, or by other competent evidence. (I Cyc., 623 ; 1 Ency. L., 561; Smith v. Allis, 52 Wis., 337.)

The rule that the evidence to overcome a certificate of acknowledgment to a conveyance of real estate must be clear, convincing and satisfactory, is so elementary that we do not regard further citation of authorities necessary upon that proposition. It is a highly salutary rule, and founded upon most satisfactory reasons. The security of land titles would rest upon a very unstable basis were the rule otherwise. We are not prepared to say that iii every possible case the 'unsupported testimony of the grantpr will be insufficient to impeach a certificate of acknowledgment. But, as a general rule, such testimony should be supported either directly by testimony corroborative of the grantor’s assertions, or by evidence of facts and circumstances that render the grantor’s testimony very probable; and in connection with clear and consistent statements of the grantor make the proof of the falsity of the certificate satisfactory and convincing.

In the case of Davis v. Kelly, 62 Neb., 642, a wife denied at first that she had sighed the mortgage in question, and afterwards that she signed it knowingly. The court held that her evidence, which was characterized by some evasion and equivocation, was not sufficient to impeach the certificate of acknowledgment; and it was said: “Where there is such a certificate in proper form, it may be impeached only by clear and convincing evidence of its falsity.”

In Young v. Duvall, 109 U. S., 573, the court said that if the certificate “can be contradicted, to the injury of those who in good faith have acted upon it, the proof to that end must be such as will clearly and fully show the certificate to be false or fraudulent. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity of titles to real estate, which would inevitably follow from one less rigorous.”

The certificate is entitled to a presumption that the officer performed his duty; and that the defendant did, as certified, voluntarily acknowledge the execution of the mortgage, which implies that she understood the instrument and the effect of her signing and acknowledging the same. Indeed, the certificate states on its face that the instrument was made known to her, and the effect of its execution explained to her by the officer. The facts certified to are supported by the testimony of the officer. Several years had elapsed, without any attempt, to far as the record discloses, to have the mortgage vacated. It was foreclosed by advertisement, and while the fact is not shown, it may not be unreasonable to infer that the defendant knew of those proceedings. Her testimony was in some respects evasive. We think it reasonably clear that the matter of her signing a mortgage had been the subject of a conversation between herself, her husband and the notary, or at any rate between the notary and herself at an earlier hour in the evening. It seems hardly probable that she would have refused to sign a mortgage, or announced an unwillingness’to do so, if there had been no intimation to her that such action on her part was desired. Her explanation of the reason that she signed the instrument afterwards, viz., because the notary said it would be a benefit to her and her husband, without any knowledge on her part, as she asserts, of the nature of the paper, is far from satisfactory, taking into consideration the character of the evidence required to impeach a certificate of acknowledgment. We regret that we are constrained to disagree with the learned District Judge who determined the case below as to the force and effect of the testimony; but it seems to us that the principle underlying such cases must have been inadvertently disregarded. To our mind the evidence is not sufficiently clear and convincing to overthrow the certificate of the officer.

We have not considered the proposition contended for, that, as against a bona fide purchaser or mortgagee, who is not a party to the instrument, and who has paid his money relying upon the record of a certificate of acknowledgment of a deed or instrument duly signed and delivered affecting title to real estate, the grantor is conclusively estopped from denying the existence of the facts set out in the certificate. The great weight of authority is said in Linton v. National Life Insurance Company, 104 Fed., 584, 590, to establish that proposition as a just and equitable rule. It is true that the evidence shows that the plaintiff in error bought the note from the payee and mortgagee, without taking a written assignment of the mortgage; and that, although the original mortgagee foreclosed the mortgage in his own name and upon purchasing the property at the sale, deeded it to the plaintiff in error, the foreclosure proceedings were conducted for the latter’s benefit. But we prefer not to consider whether the rule just stated is applicable to one who never saw the mortgage or the record thereof. In our judgment the evidence is insufficient to impeach the certificate as against the mortgagee named in the instrument; and a consideration, therefore, of the other proposition is not required.

It is, however, contended on behalf of defendant in error that the certificate in question is defective on its face and, therefore, void, for the reason that it fails to state that the wife was examined “separate and apart from her husband." We have already adverted to the evidence upon this subject and shown that the proof clearly establishes that the instrument w;as signed and acknowledged by Mrs. Smith while separate and apart from her husband. But the contention is that this must appear from the certificate itself.

Our statutes do not expressly require that the certificate of a wife's acknowledgment of the conveyance of the homestead shall embrace a statement that her examination occurred separate and apart from her husband. It is required that she shall sign and acknowledge such an instrument while separate and apart from her husband, but the statute, as it existed when the mortgage in controversy was executed, was silent respecting the specific contents of the certificate. The only statutory provision at that time with reference to the matter is found in the section now known as Section 2741 of the Revision of 1899. That section covers all deeds, mortgages and conveyances of lands, and it is provided only, as to .certificates of acknowledgment, that “the officer taking such acknowledgment shall endorse thereon (the instrument) a certificate of the acknowledgment thereof, and the true- date of making the same, under his hand and seal of office, if there be one.”

It is certainly a very proper and desirable proceeding,where the law requires the examination- of the wife to be separate and apart from her husband, for the officer to state -in his certiñc'ate that the examination was so made; and we are of the opinion that such has been the general custom in several, if' not most, of the counties of the State; although counsel for plaintiff in error seem to think that the general usage has been otherwise. It is probable that in some portions of the State it has not been customary for certificates of acknowledgment to show upon their face the fact of the separate examination of the wife; and that we should consider that situation in a decision of this question. Rand titles should not be thrown into confusion and uncertainty by a construction of the statutes that will have the effect to disturb the security of titles, unless such a construction should be clearly required.

We think it safe to say that in many of the states, and doubtless a considerable majority of them, it is held necessary that the certificate show that the acknowledgment of a married woman was taken upon an examination separate and apart from her' husbnd, where such acknowledgment is required to be so taken; but, generally, at least, that is so held, for the reason that the statute, either expressly or by very clear implication, provides that the officer shall certify to the fact of such examination. In a number of states specific provision is made by statute for the requisite contents of the certificate. Our statute, as it existed prior to 1895, seems to have followed the older statutes of some other states, in merely requiring the officer to certify the fact-of the acknowledgment, or, as the statute expresses it, “to endorse thereon a certificate of the acknowledgment thereof.”

Under a statute in Pennsylvania making no more definite a regulation than that, the courts of that state held that the statutory requisites for the execution of conveyances by femes covert must appear'to have been substantially complied with on the face of the certificate, and that the failure of the certificate to show that the feme covert was examined separate and apart rendered the deed void, parol evidence to supply the defect being held inadmissible. (Watson v. Bailey, 1 Bin., 470; 2 Am. Dec., 462; Jourdan v. Jourdan, 9 S. & R., 268; 11 Am. Dec., 724.)

But in the states of Ohio, Indiana and Illinois, under substantially similar statutes, a contrary conclusion was adopted. The statute of Indiana provided that when a husband and wife should incline to convey the estate of the wife, it should be lawful for them to appear before one of the judges, etc., who were authorized and required to take the acknowledgments; in doing which the officer was required to examine the wife separate and apart from her husband, and to read or otherwise make known to her the full contents of the deed; and if, upon such separate examination, the wife should declare that she did voluntarily and of her own free will and accord, and as her act and •deed, seal and deliver the conveyance without any coercion or compulsion from her husband, then every such deed or conveyance was declared to be good and valid in law, “provided that the judge, justice, or recorder taking the same, shall, under his hand and seal, certify the same upon the back of such deed or conveyance.” In the case of Stephens v. Doe, 6 Blackf., 475, the opinion being delivered by Judge Blackford, it was said: “The officer must, under his hand and seal, and on the deed, certify the same; that is, he must certify on the deed that such declaration or acknowledgment of the voluntary execution of the deed was made before him. But the statute does not require, as we understand it, the certificate to show an)dhing more on the subject than the declaration or acknowledgment of the wife that she had voluntarily executed the deed. It will be presumed, the contrary not appearing, that the officer did his duty as to the separate examination of the wife, and the making her acquainted with the contents .of the deed. It is the acknowledgment only, not the circumstances under which it was made, that is required to be certified.”’

The statute of Illinois-was the same as that of Indiana; and the same construction was placed upon it by the court of the former state. (Hughes v. Lane, 11 Ill., 123; Coleman v. Billings, 89 Ill., 183.) In the case first cited, the court referred to the Indiana decision - in Stephens v. Doe, supra; and also cited as to the same effect the case of Nantz w. Bailey, 3 Dana (Ky.), 111. In the cáse of Coleman v. Billings, it was held that it, was-not required that the certificate recite the fact of separate examination, and making known to the wife the contents of the conveyance.

The question was very thoroughly .considered in two cases in Ohio in respect to several deeds assailed for defects in the certificates of acknowledgment — Chestnut v. Shane’s Lessee, 16 O., 599, where it was held unnecessary for the certificate to show that the officer made known to the wife the contents of the deed by reading or otherwise; Ruffner v. McLennan et al., and three other cases reported in the same volume, 16 O., 639. In one of the cases the alleged defect was that the certificate did not show a separate examination. It was held good. The court said: “It may, at least, be presumed in favor of the officer that he would not make such certificate until he had done and performed all that the statute required of him to do and perform.” Construing the statute as requiring only the acknowledgment to be certified, and not the facts as to examination, etc., it was said by the learned judge who delivered the opinion: “And shall this court say that a certificate thus conformable to the statute furnishes no evidence that the statute has been complied with? It seems to me not.”

In the Ohio cases the court' recognized that there were 'iery many cases throughout the state in which the officers had omitted to certify to one or the other of the things they were commanded to do in taking the acknowledgments of married women. The general security of titles to real estate entered largely into the reasoning of the court. The question had attracted unusual attention in that state and the members of the profession were" divided in opinion. One of the justices dissented and with much force expressed his views..

It may be confessed that much is capable of being said in support of the proposition that to certify to the acknowledgment of the execution of'a deed includes by reasonable, if not by necessary, inference a certification of the acts requisite to be done in taking the acknowledgment; and that as no deed of a hometsead is valid unless the acknowledgment is taken under certain specified conditions, that the officer ought to show in his certificate the facts which will disclose a strict compliance with the statutory conditions. But in view of the decisions above referred to, and of the absence of a clear expression of the statute requiring the certificate to contain a statement showing the fact of separate examination, the officer having certified that the wife did acknowledge that she freely and voluntarily signed and acknowledged the instrument, we feel constrained to adopt that conclusion, which has been sanctioned by such excellent authority, will better secure titles to real' estate in our commonwealth, and at the same time work but slight, if any, hardship upon grantors of homesteads. The instances where in fact no separate examination has occurred are doubtless few in number; and in such cases it is open to the parties to establish non-compliance with the law. Where a certificate contains no reference to such an examination, it would appear impossible, in.that respect, to apply to it any rule of conclusiveness.

Moreover, we are the more readily induced to adopt this conclusion upon consideration of later legislation upon the subject. In 1895 a certain form of certificate of acknowledgment set out in the statute was declared to be sufficient. (L. 1895, Ch. 93, Sec. 5; R. S., Secs. 2752, 2770.) That form embraces no statement respecting separate examination, although it refers to the acknowledgment of a wife, and in one paragraph of the section reference is made to the conveyance of a homestead, and certain facts in such a case are required to 'be stated in the certificate, viz., the words, “including the release and waiver of the right of homestead/’ or other words which will expressly show an intention to release the right of homestead.

We do not allude to that statute upon the ground that it is to be regarded either as retroactive or as a legislative construction of former laws. But it is declarative of legislative policy for the future. We should ordinarily hesitate to express an opinion as to the effect of a statute which does not control a decision of the case in hand; but as the Legislature is again soon to convene, and can correct any possible defect in the law, we anticipate no harm from a reference to the act of 1895, and to say that it seems to add nothing to previous statutes in relation to the necessity of incorporating in a certificate of acknowledgment a statement of the fact of separate examination. If it should be deemed to cover the case of an instrument affecting the homestead interest, and upon that question we refrain from expressing an unreserved opinion, it would at least create a doubt as to the absolute necessity of an officer setting out in his certificate that the acknowledgment of the wife was taken separate and apart from her husband, in order to constitute a valid certificate.

In so far as the judgment adjudged the defendant in error to be entitled to the possession of the homestead premises, it was erroneous, and to that extent it will be reversed, and the case remanded for new trial in respect to the premises embraced in the homestead. Reversed.

Corn, C. J., and Knight, J., concur.