Ware v. Julian

DOOLING, J.,

pro

tem.

This is an appeal by the defendant, Sue C. Julian, from a decree foreclosing a mortgage made to secure the payment of a promissory note and providing for a deficiency judgment.

[355]

Attached to the mortgage was the certificate of acknowledgment in regular form of a notary public reciting that Sue C. Julian, known to him to be a party whose name is subscribed to the within instrument personally appeared before him and acknowledged that she executed the same. In the body of the mortgage a copy of the promissory note was set out

in haec verba

and as so set out it purports to bear the signature of Sue C. Julian.

Appellant on the trial testified that she had not signed the note or mortgage or appeared before the notary public and acknowledged the execution of the mortgage.

The trial court found that appellant executed and delivered both note and mortgage. Appellant attacks these findings as being without support in the evidence. The certificate of acknowledgment attached to the mortgage was

prima facie

evidence of its due execution (Code Civ. Proc., see. 1951;

Thomas

v.

Fursman,

177 Cal. 550 [171 Pac. 301]), and the only question is whether the certificate of acknowledgment standing alone can support the finding of the trial court against the parol evidence of appellant that she did not sign the note and mortgage nor acknowledge the execution of the mortgage. The precise question seems not to have been passed upon by the courts of this state, but the overwhelming weight of authority in other jurisdictions is to the effect that a certificate of acknowledgment will support a finding of the truth of its recitals against parol evidence contradicting it. The rule is thus stated in