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Deing the notary before whom the acknowledgment of the mortgage purports to have been taken. Hunter was a member of the firm of Hunter Bros., who were the agents of the plaintiff at the time the loan to secure which the mortgage was given was negotiated. Hunter testified that he signed his name as a witness to the signatures of the mortgagors, but, upon cross-examination, declines to swear that he saw Margaret E. Rauch sign her name to the mortgage. F. H. Grierson, a witness called by the plaintiff as an expert, testifies, after making comparison of the signatures of Margaret E. Rauch upon the notes, the execution of which was admitted by the defendants in their answer, with the signatures of Margaret E. Rauch on the mortgage and the deed to J. D. Hunter, that in his opinion "the same party made all three signatures." Except the introduction of the mortgage, this, we believe, constitutes substantially all the evidence offered by the plaintiff upon this question. The defendant A. Rauch, testifying upon the subject, says: "I signed it [the mortgage] at home about the date on the mortgage. Don't know what the date is. Mr. J. D. Hunter gave me the mortgage, and I taken it up to the house, and I sign my name there, and I left it; and I do not think, whether my wife signed it or not there. I don't know anything about her signing it. I do not know. She signed it there if she signed it at all, and then I carried it down to the office of Mr. Hunter, and he took it off to Mr. Williams, and Mr. Williams signed it there in the bank. I did go with him from his office to Mr. Willams' office. My wife was not present. liams, the notary public me and Mr. Hunter appeared before, did not go up to my house. I carried it down to Mr. Hunter, and Mr. Hunter and I went over to the bank, and Mr. Williams signed it, and Mr. Hunter took it, and that is the last I saw of it.

Mr. Wil

My wife was sick. She was sick, and could not go down. She could not go downtown. Had not been all winter. * Mr. Hunter and I went to the bank, and Mr. Hunter introduced me to Mr. Williams, and told him that he had an instrument there that he would like to have him take the acknowledgment of; and he just took it, and looked at it, and signed his name to it; and we took it, and went back to Mr. Hunter's office. Yes; my wife's name appeared on that mortgage at that time. My wife, Margaret E. Rauch, never at any time acknowledged the execution of that mortgage to L. F. Williams, as a notary public, or to any other notary public." Margaret E. Rauch, defendant, testified: "Mr. Rauch brought the mortgage up there, and left it there [meaning the house of defendants], but there was never any notary came. I never seen any notary, and, as to the notary that signed this, I never met. Mr. Williams is a gentleman I never met. I am unacquainted with him, altogether, and I never saw no other notary. There was no acknowl

He [Wil

edgment taken before me. liams] was never there (at my house), to my certain knowledge. I do not know him. I never met him." Clara E. Rauch testifies that she was taking care of her mother dur ing the months of January and February, 1893; that her mother was sick, and confined to her bed most of the time; that her mother was unable to go downtown, and did not go; that neither L. F. Williams nor any other notary came to the house. L. F. Williams, the notary who purports to have taken the acknowledgment, was called by the defendants, and the following question was put to him: "Q. Mr. Williams, state, to the best of your knowledge, whether you was ever at the residence and home of Mr. and Mrs. Rauch, especially since the 1st day of January, 1893, and more particularly on the 30th day of January, 1893, to the best of your knowledge." To which question witness answered: “A To the best of my knowledge, I have never been at their place of residence since they have owned the property. I was there once before they bought it, but never been on the property since they bought it, to my knowl edge." This witness was not interrogated by the plaintiff's counsel, either upon direct or cross examination.

While it may be conceded to be the rule that the officer taking the acknowledgment will not be permitted to impeach or deny his own certificate, we do not find that it has ever been held that such officer is excluded from testifying to sustain his certificate. The defendants Rauch both testify positively that Margaret E. Rauch never did acknowledge the execution of the mortgage, and not only they, but two members of the family, testify to facts strongly corroborative of the statements of defendants. The defendant A. Rauch testifies to the manner in which what purports to be the acknowledgment was taken. If his account was false, it could have been easily disproved by both the witnesses J. D. Hunter and L. F. Williams, and yet no attempt in that direction was made by the plaintiff. Conceding the rule to be as claimed by respondent, that "the evidence to impeach the certificate must be clear and convincing beyond a reasonable doubt" (Am. & Eng. Enc. Law [2d Ed.] p. 512, and cases cited in notes), still the positive denial by the defendant Margaret E. Rauch that she ever acknowledged the execution of the mortgage, or that she knew or ever saw the notary be fore whom the same purports to have been taken; the fact that she was unable to leave, and had not left, her house during the months of January and February, 1893; the detailed statement of the defendant A. Rauch as to the manner in which the purported acknowl edgment was taken (a proceeding by no means entirely without precedent); the fact that, although the notary was upon the witness stand, the plaintiff declined to question him as to the taking of the acknowledgment, -convince us, beyond the shadow of a doubt,

that the statement of the defendant A. Rauch as to the manner of taking the acknowledgment was correct, and should obtain, as against the certificate.

The granting of the motion of plaintiff to dismiss the action as to the defendants A. Rauch and Margaret E. Rauch, the only defendants before the court, and who had by their answer sought affirmative relief, was error. This action of the court is not supported by any authority we have been able to find, and is so repugnant to principle, besides being in derogation of the statute, that we do not feel called upon to discuss it. The judgment of the district court is reversed, and the cause remanded, with instructions to the district court to overrule the motion of plaintiff to dismiss the action as to defendants A. Rauch and Margaret E. Rauch, and for further proceedings in accordance with this opinion.

SULLIVAN, C. J., and QUARLES, J., con

cur.

(5 Idaho, 652)

BUNNELL & ENO INV. CO. v. CURTIS et al.1
(Supreme Court of Idaho. Dec. 18, 1897.)
CERTIFICATE OF ACKNOWLEDGMENT-REFORMATION
-SETTING ASIDE JUDGMENT-PRESUMP-
TIONS ON APPEAL.

1. If the acknowledgment of a married woman to a deed or other instrument is correctly made, but defectively certified, such certificate of acknowledgment may be reformed by judgment of the district court, under the provisions of title 6 of chapter 3 of the Civil Code, so as to make the certificate correctly state the acknowledgment.

2. An erroneous judgment cannot be set aside on motion or application made more than six months after judgment; and when, on motion to set aside a judgment, it appears that the court had jurisdiction of the subject-matter of the action, and of the person of the defendant, the motion should be denied, however erroneous the judgment may be, the remedy of the aggrieved party being by appeal, and not by motion.

3. In the absence of any showing to the contrary, it will be presumed that the trial court made all necessary findings of fact, or that such findings were waived.

(Syllabus by the Court.)

Appeal from district court, Ada county; C. O. Stockslager, Judge.

Action by the Bunnell & Eno Investment Company against Susan L. Curtis and others. Plaintiff had judgment. From an order overruling a motion to set aside the judgment, Susan L. Curtis appeals. Affirmed.

John T. Morgan, for appellant. J. H. Richards and S. L. Tipton, for respondent.

QUARLES, J. This action was commenced by the plaintiff to foreclose a mortgage. Judgment of foreclosure was rendered April 6, 1895. On February 3, 1897, the defendant Susan L. Curtis served notice of motion and statement of motion to set aside the judgment, for want of jurisdiction in the court to render said judg1 Rehearing denied.

ment, which motion was heard on February 26, 1897, and, by order of the trial court, overruled, from which order said defendant appeals.

The principal contention of the appellant is that the mortgage in question was void, for the reason that the acknowledgment thereto was not made and certified in the manner required by law. The certificate, or that part of it in question, is as follows: "And the said Susan L. Curtis, wife of the said Edward J. Curtis, having been by me first made acquainted with the contents of said instrument, acknowledged to me, on examination apart from and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion or undue influence of her husband, and that she does not wish to retract the execution of the same." Said mortgage was acknowledged before Jonas W. Brown, notary public, November 13, 1892. The complaint alleges facts showing that said Susan L. Curtis acknowledged said mortgage in the manner required by law, and asked for a reformation of said certificate of acknowledgment. The judgment corrected or reformed the certificate, so as to make it conform to the facts. The appellant urges with much seriousness that said certificate of acknowledgment was void; that the certificate is a part of the mortgage, and cannot be reformed; that the acknowledgment is shown by the certificate to be void; and that, the acknowledgment being vold, the mortgage was void; and that the court had no jurisdiction to reform the certificate of acknowledgment, or to render judgment foreclosing said mortgage.

Title 6 of chapter 3 of the Civil Code of Idaho, covering sections 2950 to 2976, inclusive, Rev. St., contains all of the statutory law of Idaho relating to acknowledgments of instruments both by married as well as by unmarried persons. This chapter covers all acknowledgments, and points out and directs how they shall be made, and how certified; and, after directing how acknowledgments 'shall be made and certified, said chapter, at section 2971, provides as follows: "When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have ar action in the district court to obtain a judg ment correcting the certificate." In said chap ter the legislature have provided all necessary rules relating to the acknowledgment of instruments, and the certification thereof, and have provided for the correction of defective certificates of acknowledgment. Appellants contend that section 2971, above quoted, does not apply to certificates of acknowledgment by married women. To this view we cannot assent. Said section makes no exception as regards the certificate of acknowledgment of a married woman. In the preceding sections of said chapter the manner of proving the execution of instruments by single persons and by married women is provided, as is also the manner of preserving the evidence of such

or

therefore hold that the trial court had juris diction to reform the certificate of acknowl edgment of appellant.

follows:

I, Chas court of state of

It is urged, however, that the judgment reforming said certificate of acknowledgment was based upon a stipulation of the at neys for the respective parties, and not upon eridence, and that there are no findings of fact in the case made by the trial court, as re quired by sections 4406 and 4407, Rev. St. This is an appeal from an order made aft judgment, and by section 4819, Rev. St., the papers to be used on this appeal are **notice of appeal," "judgment or order appealed from." and all "papers used on the hearing in the court below"; and by section 4821, Rev. St., the copies of the papers used on the appeal must be certified to be correct by the clerk or the attorneys. The certificate of the clerk to the transcript before us is as "State of Idaho, County of Ada-ss.: S. Kingsley, clerk of the district the Third judicial district of the Idaho, in and for the county of Ada, do here by certify that the above and foregoing copies are full, true, and correct copies of the com plaint, supplemental complaint, Exhibit A attached, answer of Susan L. Curtis, three (3) stipulations of counsel, decree of court, notice of motion, motion, order overruling motion. and notice of appeal, with indorsements thereon, and that the same are all the papers used on the hearing in the said district court on the motion to set aside the judgment and sale of real estate, in the case of The Bunnell & Eno Investment Co., Plaintiff, vs. Susan L Curtis et al., Defendants, and that an undertaking on appeal, in due form, has been properly filed in said cause. Witness my hand and the seal of said court, this 20th day of May, A. D. 1897. Charles S. Kingsley, Clerk District Court, Ada County, Idaho. [Seal.]” And, in addition to the foregoing certificate of the clerk, the judge who tried the motion made the following certificate: "State of Idaho, County of Elmore-ss.: I hereby certify the above and foregoing papers are all that were used on the motion to set aside the judgment and decree heard in the district court in and for Ada county on the 25th day of February, 1897. C. O. Stockslager, District Judge."

execution. Section 2971, supra, refers to, and was intended to refer and apply to, all defective certificates of acknowledgment, whether made by single or married persons; and we could not hold otherwise without interjecting a provision into said chapter of the Code which is not there, and which the legislature evidently intended should not be incorporated into said chapter. It is urged that if section 2971, supra, is held to apply to certificates of acknowledgment of a married woman, it will be injurious to the rights of married women, and that their interests require that the said section be held to not apply to acknowledgments of married women. We cannot agree with this proposition. By way of illustration: Suppose a married woman is compelled to acknowledge a deed or mortgage of the homestead in the presence of her husband, contrary to her wishes; but the officer taking the acknowledgment, either intentionally or inadvertently, certifies that she acknowledged it on examination apart from and without the hearing of her husband, freely and voluntarily. Or, to suppose another case, the wife on privy examination refuses to acknowledge the execution of such deed mortgage, but the officer corruptly certifies that she did acknowledge it, etc. If the rule contended for should be adopted, the married woman would have no relief in either of the above cases. Again, a married woman buys real property from a man who, with his family, resides upon it; and he and his wife properly acknowledge the deed, but the officer who takes the acknowledgment, by mistake or oversight, fails to state one of the necessary facts which exists, and his certificate is defective. The rule contended for would preclude the married woman, who is the purchaser, from that relief which one man would have against another man under the same circumstances, and which fairness and justice should give to one woman against another woman, although both of them should be married. We think the rule contended for would be detrimental to the interests of married women, and would make the certificate of acknowledgment of more importance than the acknowledgment of the execution of the instrument. The acknowledgment of the execution, while no part of the instrument itself, is a part of the execution of the instrument. But the certificate of acknowledgment made by the officer who takes the acknowledgment is no part of the instrument, is no part of the execution of the instrument, but is merely evidence of the execution of the instrument. The object of the statute is to promote truth and justice, and to give effect to the contract of the parties, whether married or single, by permitting the evidence of execution of an instrument that has been properly executed, but incorrectly certified, to be corrected so as to conform to the truth, and we do not think that the legislature intended that married women should be excluded from the operation of this beneficent rule. We

We are unable to tell from the inscript before us all that is contained in the jyment roll in this case. We are not authord to conclude that the trial court rendere udg. ment in this case without evidence, pon the said stipulation. Nor can we tell fit the record before us whether findings of factre made by the trial court or not. There evidence before us as to whether there v findings of fact or not, or whether such fi ings were waived or not. In the absence evidence on these points, one of two pre sumptions exists, to wit, that the trial court made all necessary findings, or that such findings were waived. The record before us shows conclusively that the trial court had jurisdic

tion of the subject-matter of the action, and of the persons of the defendants. This being true, the judgment, however erroneous it may be, is not void. If the judgment is erroneous, the remedy of the defendants was by appeal, or motion for new trial, and not by motion to set the judgment aside, made after the lapse of more than six months from the rendition of judgment. The order appealed from is affirmed, with costs to the respondent.

SULLIVAN, C. J., and HUSTON, J., con

cur.

(5 Idaho, 627)

BINGHAM COUNTY v. BANNOCK
COUNTY.

(Supreme Court of Idaho. Dec. 18, 1897.) NEW COUNTY-ORGANIZATION-INDEBTEDNESS.

In the organization of a new county out of territory included in an existing county, it was provided by the act of organization that the debt of the old county should be ascertained and apportioned by the district court at its next regular term after the organization of the new county. This was done, and the amount found due from the new county duly certified, but there existed at the time an unascertained indebtedness from the old county to another county, which fact was at the same time certified by the district court, together with the further finding that, when the amount of such indebtedness was ascertained, the new county would be liable for its portion thereof. Held, that the new county was liable for its portion of such indebtedness when the amount thereof was ascertained.

(Syllabus by the Court.)

Appeal from district court, Bingham county; D. W. Standrod, Judge.

Action by Bingham county, Idaho, against Bannock county, Idaho, to compel the proportionate payment of an old debt. Plaintiff had judgment. Defendant appeals. Affirmed.

H. V. A. Ferguson, for appellant. F. S. Dietrich, for respondent.

HUSTON, J. By an act of the legislature of the state of Idaho approved March 6, 1893, the county of Bannock was organized out of territory theretofore included in, and comprising a part of, Bingham county. Section 6 of said act is as follows: "The indebtedness of the county of Bingham at the date this act takes effect, shall be apportioned between the said county and the county of Bannock, as follows: All money on hand in the treasury of said county of Bingham and all money belonging to said county in the possession of or under the control of said county treasurer (except school money and school funds) and the value of all county : property that may be within the boundary lines of Bingham county (less the value of such county property as may be permanent within the boundary lines of Bannock county as hereby created) shall be deducted from 51 P.-49

the total indebtedness of said Bingham county, as aforesaid and the remainder of the indebtedness shall be divided between said counties in proportion as the taxable property of each county bears to the entire taxable property of the present county of Bingham, taking as a standard therefor the assessment for the year eighteen hundred and ninetytwo: provided, that Bingham county shall retain all the present county property of Bingham county left within its boundaries after the creation of Bannock county as herein provided." Laws 1893, p. 172. Section 7 of said act is as follows: "At the first regular meeting of the board of commissioners of Bannock and Bingham counties, next following the establishment of Bannock county, they shall each appoint a competent accountant, who shall, within five days after their appointment meet at the county seat of Bingham, and take the usual oath of office and proceed then and there to ascertain from the books and records of the auditor's, recorder's and treasurer's office, the whole amount of the indebtedness of Bingham.county as provided in section 6, and shall make a list of all county property and shall immediately report the same in writing to the judge of the district court of the Fifth judicial district, who shall at the first next regular session of the district court of Bingham county, fix a reasonable cash value of said county property and apportion said indebtedness according to section 6, and shall make out a certificate showing the values, debts and credits, and file one each with the chairman of the county commissioners of each county, and whatever amount is shown to be due from either of said counties to the other, the board of commissioners of the proper county shall cause county warrants to be drawn by the auditor of their county for the amount due, at their first regular session after the filing of the certificates aforesaid. Said accountants shall be allowed a reasonable compensation for all their services rendered under the provisions of this act, to be audited and allowed by the commissioners of each county." In compliance with the provisions of said section 7, the said district court did at its regular session in Bingham county, and on the 8th day of August, 1893, adjust and ap portion said indebtedness between said Bingham county and said Bannock county, and did then and there ascertain and apportion the indebtedness of said Bannock county to Bingham county at the sum of $94,929.65, and did certify the same as by said act required. And thereafter said Bannock county caused to be issued its warrant to Bingham county for said sum. But it seems that, at the time said district court made the adjustment and apportionment aforesaid, there was an indebtedness due from Bingham county to Blaine county, growing out of the disintegration of Alturas county some years previous, and by which Bingham acquired a

portion of the territory theretofore belonging to Alturas county, and assumed a relative portion of the indebtedness of said Alturas county. The amount of this indebtedness of Bingham county had not, at the time of said apportionment and certification by the district court, been definitely ascertained. In reference to such unascertained indebtedness, the said district court made the following finding: "In addition to the above and foregoing finding, the court finds from the report of the accountants herein that there is some outstanding indebtedness from Bingham county to Alturas county; that such indebtedness cannot now be ascertained; that in case such indebtedness should ever be adjusted, either by arbitration or by a court of competent jurisdiction, the same should be apportioned among the three counties of Freemont, Bannock, and Bingham, upon the same ratio as the present ascertained indebtedness is apportioned." Said indebtedness was subsequently ascertained, and said Bingham county was, by the mandate of this court, required to pay the same (Blaine Co. v. Smith [Idaho] 48 Pac. 286); and it is to compel Bannock county to pay its portion thereof that this action is brought.

Bannock county knew as well on the 8th day of August, 1893, as she knows to-day, of the existence of the indebtedness of Bingham county to Alturas county (now Blaine). In fact, it might be said to have been almost a matter of history. The adjustment of the indebtedness of Alturas county has been prolific of litigation in the courts of this state for nearly a decade. Bingham county not only neglected to pay such indebtedness, but contested its validity, and only paid when compelled to do so by the mandate of this court. Bannock county was fully aware of the position taken by Bingham in this contention, and might, had it so desired, have paid its portion of such indebtedness at any time after the amount due from Bingham county to Alturas had been ascertained and promulgated. But Bannock county preferred to abide the result of the fight between Alturas and Bingham, and accept the benefits if any accrued, and avoid the responsibilities in case Bingham county was defeated. Bannock county "would not play false, yet would wrongly win." Bannock county, having been carved out of territory theretofore belonging to Bingham county, must be supposed to have been conversant with the financial condition of the county, must have been aware of the obligation of Bingham to Alturas, and consequently of its (Bannock's) obligation to Bingham predicated thereon, and ought not to be allowed to avoid a just liability by a resort to mere technicalities. We listened with pleased attention to the eloquent and ingenious argument of counsel for the appellant, and have studied with careful interest his very able brief; but we are compelled to say that we find nothing in either which would,

in our opinion, justify us in disturbing the action of the district court. The judgment of the district court is affirmed, with costs.

SULLIVAN, C. J., and QUARLES, J., con

cur.

(5 Idaho, 660)

CO-OPERATIVE SAVINGS & LOAN ASSN V. GREEN et al. (MACKINTOSH, Intervener).

TAX

(Supreme Court of Idaho. Dec. 18, 1897.) ACKNOWLEDGMENT BY MARRIED WOMAN DEED-PRIMA FACIE EVIDENCE-ASSESSMENTS. 1. The certificate of acknowledgment by a married woman to a mortgage must substantially conform to the provisions of section 2960, Rev. St. The certificate is prima facie evidence of the fact that the mortgage was acknowledged as therein indicated. If it fails to show the examination and acknowledgment as required by law, it will be presumed that such necessary acts wore not done,-at least, until the certificate is corrected, which was not asked to be done in this case.

2. Under the provisions of section 1555, Rev. St., a tax deed regular on its face. is prima facie evidence of the existence and regularity of all the facts and acts set forth in the eight subdivisions of said section; and to defeat such deed the adverse party must show the nonexistence of such facts, or some of them.

3. Under the laws of this state, two contiguous town lots, owned by the same person, may be jointly assessed, and one valuation fixed for said lots.

(Syllabus by the Court.)

Appeal from district court, Bannock county; D. W. Standrod, Judge.

Action by the Co-operative Savings & Loan Association against Jessie W. Green and W. B. King. W. Mackintosh intervened. Intervener had judgment. Plaintiff appeals. Reversed.

S. C. Winters, for appellant. Eden & Warner, for respondent.

SULLIVAN, C. J. This is an action to foreclose a mortgage executed by J. B. Green and Jessie W. Green, husband and wife, in favor of the appellant corporation. Green and wife made default. One W. B. King was made a defendant, but filed a disclaimer of any interest in the subject-matter of said suit. W. Mackintosh intervened, and demanded the foreclosure of a subsequent mortgage executed by said Green and wife upon the same property as described in the firstmentioned mortgage, and claimed priority of lien on account of a defective acknowledgment of the prior mortgage. Appellant answered the complaint of intervener, and denied the assignment of the subsequent mortgage to the intervener, and alleged actual knowledge of the prior mortgage by the assignor of the intervener prior to the execution of the subsequent mortgage. Appellant also claimed title to the premises in dispute by virtue of a tax deed duly executed in favor of one W. H. King, and a quitclaim deed

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