Maddox v. Wood

43 So. 968, 151 Ala. 157, 1907 Ala. LEXIS 475

• Court: Supreme Court of Alabama
• Decided: May 15, 1907
• Status: Published

Opinion

DENSON, J.

The bill is filed for the purpose of redeeming real estate sold under the power contained in a mortgage. The mortgage was executed to a corporation, and the acknowledgment thereto Avas taken by a notary public, who was, at the time, the general counsel for and a stockholder of the corporation mortgagee. That such an acknowledgment is void-has been distinctly held by this court, and the proposition is conceded by both the parties to this litigation. — Hayes v. Sou. Home B. & L. Assn, 124 Ala. 663, 26 South. 527, 82 Am. St. Rep. 216.

But it is contended by the respondent in the bill (appellee) that, notwithstanding the acknowledgment is void, yet it operates as an attestation, by the officer taking it, of the signature of the grantor. The complainant (appellant) denies this proposition, and contends, first, that it is only in cases where the certificate of acknowledgment is merely defective that it may operate as an attestaton by the officer; and, secondly, that the notary is incompetent as a witness in the same degree that he is as a certifying officer. This court has decided both of these contentions adversely to the complainant. Upon the first one we cite Sharpe v. Orme, 61 Ala. 263; Rogers v. Adams, 66 Ala. 600; Torrey v. Forbes, 94 Ala. 135, 10 South. 320; Hayes v. Banks, 132 Ala. 354, 30 South. 464. In respect to the second contention, we cite Morris v. Bank of Attalla, 142 Ala. 638, 38 South. 804.

No other propositions have been discussed in briefs of counsel. It results, from what has been said, that the decree of the city court, dismissing the hill for want of equity, must be affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.