Opinion
6 Div. 60.
April 17, 1924.
Appeal from Circuit Court, Lamar County; R. L. Blanton, Judge.
Wilson Kelley, of Vernon, for appellants.
A bare preponderance of testimony is not sufficient to overcome the presumption in favor of a certificate of acknowledgment regular on its face. 1 C. J. 896; Barnett v. Proskauer, 62 Ala. 486; Freeman v. Blount, 172 Ala. 655, 55 So. 293; Loyd v. Oates, 143 Ala. 231, 38 So. 1022, 111 Am. St. Rep. 39; Ford v. Osborn, 45 Ohio St. 1, 12 N.E. 526.
W. F. Finch, of Jasper, for appellees. A certificate of acknowledgment is a prima facie proof of its correctness, but this presumption may be overcome by evidence. Grider v. American Freehold Land Mtg. Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58.
It appears without dispute that G. L. Weeks and his wife, Susie J. Weeks, executed a mortgage to J. M. Weeks, to secure a loan, in July, 1912, and that the instrument was acknowledged by them before J. F. Barker, a notary public, who went to the Weeks home for that purpose.
Mrs. Weeks testified that Barker came to her home only once to take an acknowledgment, which was between July 15 and July 31, and that the mortgage she signed and acknowledged was for $125 and that she did not sign or acknowledge the mortgage for $225 exhibited by respondents. Her sister, Mrs. Couch, testified that she was present at the time, and observed, and heard it stated, that the mortgage was for $125. Both of them testified that Mrs. Weeks signed her own name. Mrs. Weeks also testified that her husband brought home the mortgage that she had signed in the fall of 1912, and that she had seen it in the trunk at home.
The testimony of these witnesses, strongly biased as it undoubtedly was, and dealing with a transaction that occurred more than 10 years before, is not sufficient in our estimation to overcome the probative force of the official certificate of acknowledgment, corroborated as it was by the testimony of the officer himself, who was without interest in the matter, and who stands unimpeached. Barnett v. Proskauer, 62 Ala. 486; Freeman v. Blount, 172 Ala. 655, 664, 55 So. 293; 1 Corp. Jur. 896. Indeed, we are satisfied that the mortgage exhibited by respondents, and identified by Barker as the original paper which he drafted for J. M. Weeks, and the execution and acknowledgment of which he duly certified, is the identical mortgage referred to by Mrs. Weeks and her sister, and that they are simply mistaken as to the amount of the debt recited therein.
So, also, the testimony of Mrs. Weeks that she saw a mortgage (for $125) at her home in the fall of 1912 is not sufficient to convince us that the mortgage in suit was ever delivered up by the mortgagee to the mortgagor as paid. That contention is contradicted by the testimony of J. M. Weeks, and also by the probate judge's certificate of recordation, dated May 2, 1913, more than three months before the death of G. L. Weeks.
We are, of course, disregarding Mrs. Weeks' statement that her husband said the land was free of debt, since it was but hearsay, and was a statement by a person whose estate was interested in the result of the suit. Code, § 4007.
Our conclusion is that the only relief to which complainant is entitled is under the alternative prayer for redemption.
The decree of the circuit court will be reversed, and the cause will be remanded for further proceedings to ascertain the amount due to respondents, including a reasonable attorney's fee for collection of the debt, if any has been incurred, and for an appropriate decree for relief by way of redemption from the mortgage under which respondents claim.
Reversed, rendered, and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.