The herald., 1894-03-06
The Supreme Court Considers
1t Very Material
That She Should Have Acknowledged
the Instrument.
Some OF the Points Upon Which the SUI
perior Court Has Been Reversed
in MesnRgsr vs.. Hamilton.
Other Cases.

Yesterday the opinion in the case was
received for fling.
This cpss has been pending for some
time in the supreme court and has
caused much discussion over the points
raised.
In view Of the reversal q new suit was
begun within half an hour from the
time the news reached the city OF that
action.
The defendants, Samuel Hamilton and
Adelaide E. Hamilton, were husband
and wife, and the action was to fore
close a mortgage alleged to have been
executed by them January 2, 1889, for
$1,000.
The defendant Adelaide Hamilton
fled an answer, in which hhe answer ed
that the land in the mortgage Is her
separate property, and also denies that
abe ever executed or acknowledged the
mortgage, and further alleged that the
statement in the certificate OF John
Robarts as notary public, appended 10
the mortgage, rec;ting that she appeared
before or was in his presence, is untrue
and fRlee.
The case was tried upon the issues
thus presented, and resulted in q judg.
ment for the PLAINTIFF in accordance
with the demand of the complaint and
decree Of foreclosure directing the
sale of the property.
From this judgment Mrs. Hamilton
appealed.
Upon the trial OF the action Mrs. Hamil-
ton offered to prove that she never in fact
appeared before the notary certifying to
the acknowledgment attached to the
mortgage, and that she did not acknowl-
edge 1t or know anything about its de-
livery to the plaintiff.
The plaintiffs objected to this evil
dence upon the general ground of irrele-
vancy, and particularly that sit made
no difference whether the defendant,
Adelaide E. Hamilton, was present and
acknowledged the mortgage or not. as
the certificate OF the acknowledgement
was conclusive"
The objection was sustained and Mrs.
Hamilton was not permitted to prove
the facts embraced in her offer.
The supreme court says that this rul-
ing was clearly erroneous. At the date
OF the mortgage an acknowledgment
was essential to the validity of a convey
ance by q married woman. Such being
the law ct the date OF the mortgage in
question, the facts offered to be shown
were material and relevant and struck
as directly at the existence of the mort
gage as would an offer to show that the
signatures thereto were forgeriee.
The certificate OF acknowledgment
was not conclusive evidence Of the fact
of acknowledgment, and such q certifi-
cate may ho impeached by parole evil
dence that the person named therein
never in fact appeared before the officer
certifying to the acknowledgment.
''In such q case" says the court, "the
act OF the officer is wholly void, and the
certificate Ia nothing but fabrica-
tion."
fNor was it necessary for the appel.
liant to show, or offer to show, any fraud
or bad faith upon the part of the mort.
gagee, or that he had notice of the falsity
OF the certificate. If the matters offered
to be proven in this case are true, the
appellant never executed the mortgage,
and il has no more validity aa to her
than II her signature was forged thereto,
and in such q case, where the wife has
done nothing to estop her from showing
the attempted fraud upon her rights, it
is immaterial whether the persons
claiming under the mortgage had notice
of the matters affecting it's validity or
not. The plaintiffs were not obliged to
advance any money on the mortgage
until after first satisfying themselves OF
it's genuineness, and If they failed to
make the necessary inquiry. the loss is
theirs, and not that of the appellant"
After further discussion OF the case
the court orders the judgment and order
OF the lower court reversed.
y
Farland says in part: "The objections,
and the ruling of the court, were made
solely upon the broad ground that q
notary's certificate of acknowledgment
of a married woman is always, and
under all conceivable circumstances, abb
solutely conclusive. Under this ruling
the appellant, although she had never
appeared before the notary, and never
knew that he had made q certificate Of
her acknowledgement, and although she
never delivered the mortgage or knew
of it's delivery, or received any of the
money, and never did any act OF rati-
fication whatever, would still be forever
estopped by the certificate from show
ing the truth. This ia my opinion, 10
not the law"
An opinion by the supreme court was
received for fling at the Los Angeles
Office yesterday in the case of II. @. Cor
don, respondent, va. the City Of San
Diego.
The opinion ID by the court en- banc,
and they say that they still adhere to
the opinion in the case rendered in de-
partmeRt one and prepared by Mr.. Com
missioner 6earls. The opinion is then
quoted in full.
The action was one to quiet the title
to the east half of pueblo lot 1915, con-
tanning about 45 acres Of land. situated
in the city Of San Diego. The appeal
was taken by the defendant from
judgment in favor Of the plaintiff, sd-
judging him to be entitled to the land
according to the Poole map of the pueblo
lands of the city of San Diego, made in
1856. aud adjudging that the defendant
has no title thereto. also from an order
denying motion for new trial.
The supreme court orders that the
judgment be reversed and the cause re-
manded for q new trial.
A severe rheumAtie pain in the left
shoulder had troubled Mr.. J. II. Lopar,
g we'll known druggist of Des Moines. Ia,
for over six months. At times the pain
was 30 severe that he could not lift any
thing. With all he could do he could
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