Motes v. Carter

73 Ala. 553

Opinion

STONE, J.-

— The present statutory real action rests its right of recovery on a mortgage of the homestead, made by husband and wife. The sufficiency of the certificate of the wife’s acknowledgment is the question for our consideration. The mortgage was executed and acknowledged in February, 1881. The language of the certificate is, that she acknowledged “ she signed the same of her own free will and accord, without fear, constraint or persuasion of her husband.” This is the exact language of the act, approved April 23, 1873. — Pampli. Acts, 65-G. The law remained without change, until the later statute was enacted on the subject, approved - February 9, 1877. — Pampli. Acts, 33-é. The form of acknowledgment prescribed by that statute is, “that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of the husband.” The sufficiency of the certificate before us, it will be observed, must be tested by the later statute.

Ordinarily, it would seem, the absence of fear and constraint would imply that there had been no threats, which could have influenced the wife’s conduct. The history of this legislation, however, forces us to a different interpretation. The- act of 1873 contained the words fear and constraint. The act of 1877 snperadded the word threats, and we must presume the legislature had some object in doing so. It would violate all rules of interpretation to hold that- the added word had no purpose. The certificate was insufficient to divest the title of the homestead. — Scott v. Simms, 70 Ala. 352.

Affirmed.