La Societe Francaise D'Epargnes Et De Prevoyance Mutuelle v. Beard (1880) · DecisionDepot

La Societe Francaise D'Epargnes Et De Prevoyance Mutuelle v. Beard

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 6,141Published

Before: Department, McKinstry

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Holding. The court affirmed the lower court's finding that the defendant's mortgages were validly executed, holding that the notarial certificate created a presumption of truth that was not overcome by the conflicting and indefinite testimony of witnesses.

Issues

Whether the recitals in a notarial certificate of acknowledgment for a married woman's mortgage were proven false by the evidence.
Whether the notary's failure to personally explain the contents of the instrument to the married woman invalidated the acknowledgment under the Act of 1850.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The contrary to the statement of the certificate should have been distinctly proven.”

“It is admitted that the certificate is prima facie proof of the facts set forth in it.”

Synopsis

Notary's Certificate.—Query: Whether in an action to foreclose a mortgage against a married woman—under a simple denial of the execution oí the mortgage—the truth of the notary’s certificate can be attacked?

Married AVoman—Mortgage — Acknowledgment—Surplusage. — The law as it was before the Codes, did not require the notary, in taking the acknowledgment of a married woman, himself to make her acquainted with the contents of the instrument., but only that she should be made acquainted with them; and the words “ by me” in a certificate under that law are surplusage.

Evidence—Presumption—Conflict of Evidence.—A prima facia presumption of law on the one hand, and the opposing testimony of two or more witnesses on the other, may constitute such a conflict of evidence, that a finding in favor of the presumption will not be disturbed.

Department No. 1, McKinstry, J.: The Court below found that the defendant, Jane M. Beard, signed the two mortgages set forth in the pleadings and mentioned in the findings, “ of her own free will and with full knowledge of the terms and conditions thereof, and well knowing what the contents thereof were, and that the certificates of said notary of the achnowledgment of mortgages are not, nor is either of them, in any respect untrue.”

The certificate of the notary attached to the mortgage referred to as the $175,000 mortgage, is in the words and figures following:

“ State of California, “ City and County of San Francisco,

“ On the 19th day of June, 1872, before me, F. J. Thibault, a Notary Public, in and for said city and county, residing therein, duly commissioned and sworn, personally appeared Henry Gr. Ellsworth, Elias L. Beard, and Jane M. Beard, his wife, whose names are subscribed to the annexed instrument, as parties thereto, severally personally known to me to be the same persons described in, and who executed the said instrument, and they severally duly acknowledged to me that they executed the same freely and voluntarily, and for the uses and purposes therein mentioned.

“And the same Jane M. Beard, wife of said Elias L. Beard, having been, by me, first made acquainted with the contents of such instrument, duly acknowledged to me, on an examination separately and apart from and without the hearing of her husband, that she executed the same freely and voluntarily, for the uses and purposes therein mentioned, without fear, compulsion, [483]or undue influence of her husband, and that she does not wish to retract the execution of the same.

“ In witness whereof, I have hereunto set my hand and affixed my official seal at my office in the City and County of San Francisco, the day and year last above written.

“ [seal.] F. J. Thibault, Notary Public.”

In the view we take of this case, it is not necessary to decide whether the notary’s certificate can properly be attacked under the pleadings herein; we shall assume that its recitals may be disputed.

It is said by counsel for the appellant that the certificate is not true in so far as it states that “ the said Jane M. Beard, wife of said Elias L. Beard, having been by me first made acquainted with the contents of such instrument, duly acknowledged,” etc.

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In the portion of the notarial certificate “ having been by me first made acquainted with the contents,” the words “ by me ” are surplusage. It would have been enough if she had been made acquainted, or become acquainted with them from any other source. (Jansen v. McCahill, 22 Cal. 565.) But the notary did make her acquainted with the contents, if he recalled to her memory the information she had already received. It is admitted that the certificate is prima facie proof of the facts set forth in it. The Court below was, therefore, justified in finding that its recitals were true, unless the presumption of their truth was overcome by the evidence. The notary had died previous to the trial; and the only j)crsons then living who were present when the acknowledgment was taken, (while both admitted that the attention of the party was called to her knowledge of the contents of the instrument,) differed in respect to the form of the inquir)'' put by the officer, and as to the form and substance of the defendant’s reply, In this condition of the evidence there was, at least, a substantial conflict with respect to the truth or falsity of the recitals in the certificate, and wherever such conflict has appeared, we have uniformly declined to interfere with the findings of the Court below. There is no pretense but that the defendant was acquainted in part with the contents of the instrument, and that her mind was directed to its contents by the questions of the notary. After the lapse of time between the taking of the acknowledgment and the trial, and considering the inattention of the witnesses to the details of the transaction, for which we must give them credit if we would attribute good faith, at least to one of them, we cannot say that the Court below found against the evidence in its conclusion that the certificate declared the truth. The contrary to the statement of the certificate should have been distinctly proven. Here, in addition to the presumption of an imperfect recollection, which lapse of time would suggest in respect to facts of which neither of the witnesses took special note—the one because she did not know the importance of the formula, [485]and the other because if he had noticed the omission he would have prevented the payment of the money until the law had been complied with—we have the further circumstances that the two witnesses (both endeavoring to recall the truth) do not agree in their recollection.

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