Le Mesnager v. Hamilton

Citations

• 101 Cal. 532
• 35 P. 1054
• 1894 Cal. LEXIS 1070

Syllabus

<p>Mortgage—Foreclosure—Separate Property of Wife—Evidence-Contradictory Certificate of Acknowledgment—Delivery.—In an action to foreclose a mortgage upon the separate property of a wife, executed by the husband and wife at a time when the acknowledgment of the wife was essential to the validity of the mortgage, it is error for the trial court to refuse to allow the wife to prove that she never in fact appeared before the notary certifying to the acknowledgment attached to the mortgage, and that she did not acknowledge the mortgage or know any thing about its delivery to the mortgagees.</p> <p>Id.—Certificate of Acknowledgment Not Conclusive—Parol Evidence—Fabrication.—A certificate of acknowledgment is not conclusive evidence of the fact of acknowledgment, but it may be impeached by parol evidence that the person named therein never in fact appeared before the officers certifying to the acknowledgment. In such a case the act of the officer is wholly void, and the certificate is nothing but a fabrication.</p> <p>Id.—Knowledge oe Mortgagee—Protection oe Bona Fide Purchaser. It is only where the wife in fact appears before the officer that his certificate imports verity in favor of bona fide purchasers without knowledge of irregularity; but where she does not in fact so appear it is not necessary for the wife to show or offer to show fraud or bad faith upon the part of the mortgagee, or that he had notice of the falsity of the certificate. The failure of the mortgagee to ascertain that the mortgage was never in fact executed by the wife cannot be allowed to defeat the rights of the wife to her property if she was without fault.</p> <p>Id.—Execution oe Written Instrument—Delivery.—The word “execute, ” when applied to a written instrument, unless the context indicates that it was used in a narrower sense, imports the delivery of the instrument.</p> <p>Id.—Pleading—Denial oe Execution—Issue as to Delivery.—Where a complaint in a foreclosure suit alleges that the defendan