, 1892-07-01
PIEROE AFFIRmED.

Christian Kley, respondent VS.. Jos. GeigeI
and Ida Geiger, appelant.-NO. All, filed
June 30, 1892.
The plaintiff sold to defendants, Joseph
Geiger and Ida Geiger, certain real estate
situated in Pierce county, in this state,
for the sum of twenty-five thousand dol
lars, receiving at the time three thousand
dollars in money thereon, and a note for
nineteen thousand dollars secured by a
mortgage given by said vendees on the
land sold to them, and this suit was subse-
quently instituted to fOreclose said mort
gage. The defendants, Joseph and Ida
Gelger, contested the suit upon the ground
that the mortgage was void in that there
was no legal acknowledgment thereof by
them; and they set up a further defense to
the effect that the conditions of the deed
executed to them by the plaintiff for the
land in question had been broken, the
same being a warranty deed, wherein the
plaintiff cOYenanted that the land was free
fIOm membranes, whereas they allege
that at the time said conveyance
was executed there was a lien upon said
premises in the shape of a lis pendens
nled by certain parties giving notice of
the commencement of an action
against one julius Kley for spec
1hc performance of contract to convey the
said premises. Said defendants claim that
by reason of this lis pendens being on
record they were prevented from effecting
a sale of said lands at an advanced price
which sale had been negotiated by them
with certain parties. The objection to the
acknowledgement is that the officer before
whom the same was taken did not certify
that said defendants executed said mort
gage freely and voluntarily. The acknowl-
edgment does state that said parties
appeared before such officer, and acknoWl-
edged that they signed and executed the
same, and contains the further statement
that upon the separate examination of the
SAID Ada Gelger apart from her husband
she acknowledged that she signed the
same voluntarily. There is no force in the
objection to the acknowledgment. Section
1435 OF the General Statutes, which was in
force at that time, provides that certificates
of acknOWledgment shall recite in sub
stance that the deed, mortgage or instru-
ment was acknowledged by the person or
persons whose name or names are signed
thereto as grantor.
Sec, l437, which was also in force at that
time, provides that the certificate of
acknowledgement substantially in the form
there given shall be sufficient, which form
contains recital that the execution of the
instrument was the tree and voluntary act
of the party executing the same. Itdoes not
provide that this form of acknowledgment
shall be exclusive, and we are satisfied the
acknowledgment which was taken wherein
the defendants acknowledged that they
signed and executed the mortgage, without
any further statement that tney vOlunta-
rily did the same, was sufficient.
The defendants cO1ld not avoid said
instrument under the circumstances of
this case; they made no offer to return
the property, but took possession there
of, and received the rents and profits.
The acknowledgment in the deed which
conveyed the title to them lacked the very
element or Statement which they insisted
should have been containedin the acknowl-
edgment Of the mortgage. Said acknoWl-
edgment contained a statement that the
grantor therein acknowledged that he
signed and executed said deed but did not
say that he executed the same freely and
voluntarily. There was no evidence of
any fraud or cOmpulsiOn having been made
use Of as to either of these defendants to
obtain their signatures to the instrument,
nor any pretense that they did not sign the
same freely and voluntarily.
AS to the second objection raised, there
was nothing in the record to show that
Julins Kley, against whom the action was
pending and against whom the lis pendens
was filed ever had any interest in this prop
erty, or any authority to make any con
tract with reference thereto or to create
any lien thereon. 1t cannot be claimed
under such circumstances that the lis pen
dens created any cloud upon the title or
was any violation of the covenant that the
brances. A few months after the property
had been conveyed to the defendants the
lis pendens aforesaid was discharged and
cancelled from the record, The defend
ants claim, however, that prior to this time
they had negotiated a sale of the property,
and received twenty dollars thereon, but
the next day the parties with whom they
had negotiated discovered this lis pendens
was upon the record, and refused to take
the land, aud that they had repaid them
the twenty dollars which had been
received thereon. 1t did not appear that
defendants made any mention of this mat
ter to plaintiff, although Joseph Geigsr
testified as an excuse therefor that the
plaintiff was absent. 1t seems he under
stood, however, that the plaintiff had a
resident agent at the city of Tacoma, and
no application was made to this agent.
Furthermore the defendants continued
to pay interest on the note, and remained
in possession of the property, and made no
claim for any damages on account of the
lis pendens aforesaid, or otherwise, until
the same was set up as defense to the
foreclosure of the mortgage. There was
no sufficient proof of any damage result
ing to defendants in this respect, in our
opinion, to warrant our disturbing the
findings of the superior court upon the
evidence. even if such a state of affairs
would be sufficient to found claim for
damages upon.
Some other objections to the introduce
ton of proof were made by the defendants,
but under the view we have taken of the
case the same become wholly immaterial
and it is unnecessary to discuss them. The
judgment Of the lower court is affirmed.
SOoTT, J.
We concur: Anders, J Dunbar, J; Stiles
Al Il TT