Parrish v. Russell

Deeds; Acknovñedgment; Impeachment; Married Woman.— Where the presence of the notary, the grantors in the deed, and the signing of the deed by the grantors before the notary is shown, in the absence of fraud or duress, the certificate of the notary of the separate acknowledgment of the deed by the wife cannot be impeached by parol.

Ejectment. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Ejectment by C. T. Russell against S. F. Parrish. Judgment for plaintiff and defendant appeals. The certificate that is attacked is appended to a mortgage executed by Parrish and wife to Russell, and seems to be in proper form. The defendant offered to prove that there was no separate acknowledgment taken, but that the husband and wife were standing together at the time of taking the acknowledgment, which the court- declined to permit him to do. The court should have permitted the defendant to prove that the certificate of the notary as to the separate examination of the wife was false and that there, was in fact, no such separate examination. — Chattanooga, N. B. & L. Assn. v. Vaught, 143 Ala. 389; Russell, et al. v. Holman, 156 Ala. 436. Parol testimony may be introduced to' show that the notary did not have jurisdiction although the acknowledgment recites the jurisdictional facts. In the absence of jurisdiction it may be assailed collaterally. — Watts v. Frazer, 80 Ala. 186; E. A. L. M. Co. v. Peters, 102 Ala. 241; N. E. M. Co. v. Payne, 117 Ala. 578; Russell v. Holman, supra. The provision of the statute that such acknowledgment shall ■ be separate and apart from the husband is mandatory. — Cox. v. Holcomb, 87 Ala. 589; Grider v. A. F. M. Co-., 99 Ala, 281; 1 Cyc. 568; 110 Ala. 254, and authorities supra. The mortgage being an attempt to convey the homestead and not having been properly executed, was a nullity, and the foreclosure deed under power of sale was consequently void.— Marks v. Wilson, 115 Ala. 561; McGhee v. Wilson, 111 Ala. 615. The court properly denied the admission of evidence showing that the acknowledgment of the wife was not taken separate and apart from the husband. No fraud or duress is attempted to be shown, and it appears that the notary, the grantors, the deed, were all together, and that the deed was signed by the grantors. — Grider v. A. F. L. M. Co-., 99 Ala. 281; A. F. L. M. Co. v. Thornton, 108 Ala. 258; Read v. Ro%oland ,107 Ala. 366.