Hamilton

The defendants, Samuel Hamilton and Adelaide E. Hamilton, were and are husband and wife, and this is an action to foreclose a mortgage alleged to have been executed by them on January 2, *534 1889, to secure a promissory note, also executed by them on the same day, for the sum of seven thousand dollars. The complaint contains a copy of the mortgage, and of the certificate of acknowledgment attached thereto. The certificate is that of a notary public, and shows upon its face that the mortgage was duly acknowledged by the defendants upon the day of its date.

The defendant, Adelaide E. Hamilton, filed an answer, in which she avers that the land described in the mortgage was and is her separate property, and in which she also denies that she ever executed or acknowledged the mortgage, and further “ alleges that the statement in the certificate of said notary, appended to said pretended mortgage by said notary, reciting and stating that she .... appeared before, or was in the presence of, said notary, .... is untrue and false.”

The case was tried upon the issues thus presented, and resulted in a judgment for the plaintiffs in accordance with the demand of the complaint, and a decree…

I concur in the judgment of reversal; because the objections to the evidence offered by appellant, and sustained by the court, were not based upon any defect in the denials of the answer. The objections and ruling of the court were made solely upon the broad ground that a notary’s certificate of acknowledgment of a married woman is always and under all conceivable circumstances, absolutely conclusive. Under this ruling the appellant, although she never appeared before the notary and never knew that he had made a certificate of her acknowledgment, and although she never delivered the mortgage or knew of its delivery, or received any of the money, and never did any act of ratification whatever, would still be forever estopped by the certificate from showing the truth. This, in my opinion, is not the law. At the same time, I do not think that the delivery of the mortgage is denied in the answer. It is true that, in a general sense, “ execution” may be said to include “ delivery” ; but it is quite frequently used in the limited sense of signing, and where *541 the law requires it, sealing, stamping, acknowledging, etc., a written instrument, so as to make it complete on its face and…