Frederick v. Wilcox

119 Ala. 355

• Court: Supreme Court of Alabama
• Decided: July 1, 1898
• Status: Published

Opinion

HARALSON, J.

The mortgage in this case admitted in evidence against plaintiff’s objection, does not contain the names of the 'husband and wife as grantors in the body of the instrument, but it is signed by each of them at the conclusion under its signing clause. Instead of the names of the grantors being set out, the mortgage, in recital of consideration, states “that the undersigned is justly indebted to James Wilcox in the sum of two hundred dollars, etc.” ***** “and for the purpose and consideration of securing the same, the undersigned have this day bargained, sold and conveyed, etc.,” and concludes, “Witness our hands and seals, etc.” This was quite sufficient to distinguish the grantors, and make it appear that each signed it, as much so as if their names, as they respectively appear at the place of signing, had been inserted in the body of the deed. — Sheldon v. Carter, 90 Ala. 380; Madden v. Floyd, 69 Ala. 221.

2. The acknowledgment of the wife to the mortgage, to make it effectual to pass the homestead, was in conformity with the statute, except that the name of the husband is not therein stated at the place therefor in the form of the acknowledgment set out in the Code. The certificate of the justice recites, “came before me the within named A. E. Frederick, known to me to be the wife of the within named-, who being examined separate and apart, etc.” Following this separate acknowledgment of the wife, at the same time and before the same justice, as appears, is the usual acknowledgment by the husband and wife, in all respects regular and full, except the certificate recites “Simpson L. Frederick and his wife, whose names are signed to the foregoing conveyance and who are known to me, acknowledged, etc.,” without setting out the name of Mrs. Frederick, at it appears to the mortgage, — the words, “and his wife,” being employed in the place of her name.

A literal compliance with these statutory forms of acknowledgment to conveyances is not exacted. It is sufficient if it appears that the statute has been fairly complied with; and in determining this, the certificate of acknowledgment may be read in connection with the deed;.and, as in this case, the two certificates may be read in connection with the mortgage and with each other. — Sharpe v. Orme, 61 Ala. 263; Carlisle v. Carlisle, 78 Ala. 544. Moreover, a certificate of acknowledgment by a married woman uniting with her husband in a deed or mortgage in alienation of the homestead, is liberally construed, and a literal compliance with statutory forms is ntoft exacted. A substantial compliance is sufficient. — Gates v. Hester, 81 Ala. 357. The description of Lhe grantors is sufficiently certain, if their identity can be worked out through, and by reference to the conveyances and certificates of acknowledgment thereto, the identity of the parties being clearly shown by reference the one to the other, and this, on the maxim, Id certm, est quod certum reddi potest. — Madden v. Floyd, 69 Ala. 221.

This disposes of the assignments of error. Finding no error in the rulings of the court below, its judgment is affirmed.

Affirmed.