Sheridan County v. McKinney

112 N.W. 329, 79 Neb. 220, 1907 Neb. LEXIS 311

• Court: Nebraska Supreme Court
• Decided: May 24, 1907
• Docket: No. 14,833
• Status: Published

Opinions

Ames, C.

In January, 1900, Sheridan county began an action against Alexander McKinney and Lucilla, his wife, to foreclose tax liens delinquent for a series of years upon a tract of land lying in the county, the title to which was in the former named defendant. Cuyler and Graham, two other defendants, were alleged to be owners by assignment of a mortgage lien upon the land, and they appeared and pleaded their instrument by cross-petition, to which Alexander McKinney answered by a general denial. The action proceeded to trial and a decree adjudging the taxes as first lien, and the alleged mortgage debt as second lien, and directing a sale of the premises, as is usual in such cases. Service was attempted to be made upon Lucilla by publication, on the ground of nonresidence, but she afterward appeared, and upon motion and proof of residence procured the decree to be vacated and the cause to be again set down for trial. She also answered the cross-petition by a general denial, and further answered specifically that the premises were a homestead occupied by her husband and herself and their minor children as such, and that the alleged mortgage was a cloud upon her title, and praying that it he so adjudged. The suit proceeded to trial and a decree, in which the court found generally against the cross-petitioners and in favor of the defendants McKinney upon the issue as to the alleged mortgage, and dismissed the action with respect thereto. .But it was found that the cross-petitioners Avere the owners by purchase and assignment of the tax liens set forth in the petition of the plaintiff, and decreed a foreclosure of the same. This latter finding and decree is Avithout the support of a pleading or of sufficient competent proof, but it was not assailed by motion in the district court, nor did either the county or the defendants McKinney or either of them appeal, so tli.-n the error cannot be availed of here. Cuyler and Graham alone appeal.

We shall not discuss the evidence upon the issue Avhether the premises were a homestead. Counsel for appellants seem to concede in their brief that it is sufficient to support the finding of the trial court, if the defendants McKinney are credible witnesses and their testimony is Avorthy of belief. There was no attempt at a direct impeachment of them, and the trial court Avas more competent to Aveigh their testimony than we are. We think that an accusation of vagueness on this issue, or of apparent reluctance and perhaps insincerity upon another, is not sufficient to overcome his judgment or to wholly discredit the witnesses. Their testimony with respect to the homestead character of the premises is not in itself incredible, and, if true, is sufficient to establish their contention.

At the second trial the notes and mortgages pleaded in the cross-petition had been lost, and appellants were therefore compelled to rely solely upon the county record, and hence arises the important question in the case. The premises were a homestead. Not only is the existence of a mortgage put in issue by both defendants by general denial, but the wife expressly denies ever having acknowledged any such instrument. On the Avitness stand she not only repeats snch denial, but also denies any present recollection or knowledge that she signed the alleged instrument in suit. No one testifies to having seen her sign it, or to having seen her purported signature to it, or to any positive knowledge that it is hers, so that the fact must-be established, if at all, by the public record, and the verity of the record depends upon the sufficiency of the notary’s certificate of acknowledgment there shown. Comp. St. 1905, eh. 73, sec. 14. ' Section 5, eh. 61, Comp. St. 1905, in so far as it pertains to the present controversy, is as follows: “Each notary public, before performing any duties of his office, shall provide himself with an official seal, on which shall be engraved the words ‘Notarial Seal,’ the name of the county for which he was appointed and commissioned, and the word ‘Nebraska,’ and in addition, at his option, his name and the date of expiration of his commission, or the initial letters of his name, with which seal by impression all his official acts as notary public shall be authenticated, and under his official signature on all certificates of authentication made by him, such notary public shall write the date at which his term of office, as such notary public will expire; provided, such date of expiration is not engraved on the seal.”

The certificate in question is concededly in due form, except that there is neither engraved upon the notary’s seal, nor appended in writing to his signature, a statement of the date of the expiration of his commission or term of office. Is this defect fatal? Under sections 13, 14, ch. 73, Comp. St. 1905, only instruments “duly recorded” can be read in evidence in the absence of the original. Is the mortgage in suit duly recorded? If the statute had peremptorily required the date to be engraved on the seal its omission would without doubt have been fatal. Oelbermann v. Ide, 93 Wis. 669; Welton v. Atkinson, 55 Neb. 674; Byrd v. Cochran, 39 Neb. 109. Such an omission under such a statute would have destroyed the official character of his seal. But section 5 of the statute, supra, requires that all the notary’s official acts shall be authenticated, not only by his official seal, but by his official signature, so that his name without the added words “Notary Public” would clearly be insufficient, and so we think that the date engraved upon his seal is required as an addition to, or rather as a part or amplification of, his “official signature.” It is not worth while to speculate as to what was the object or purpose of the legislature in making this requirement. It is enough to say that the requirement itself is as peremptory as any other contained in the statute, and, if it may be disobeyed, any or all the rest may be treated in like manner without impairing the authenticity of the instrument or of its record. We think there is not sufficient proof in the record that the wife either .signed or acknowledged the mortgage in suit, and that it is void as to her, and that, the premises being a homestead, it is also void as to her husband.

The following opinion on rehearing was filed February 20, 1908. Former judgment of affirmance vacated and decree entered: 1. Notaries: Certificate: Seal. The seal of a notary which contains the words “Notarial Seal,” the name of the county for which the notary was appointed, and the word “Nebraska,” is sufficient for the authentication of his official acts; and his failure to write under his official signature the date when his commission will expire does not render his certificate void. 2. Acknowledgment: Impeachment. A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent; and whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of a party purporting to have made the acknowl-

We therefore recommend that the judgment of the district court be affirmed.

Jackson, C., concurs. Calkins, C., not sitting.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the' district court be

Affirmed.

edgment usually cannot overcome the officer’s certificate, nor will such evidence, slightly corroborated, overcome it.