
    Monroe v. Arthur.
    
      Statutory Action of Ejectment.
    
    1. Acknowledgment of conveyance to corporation; disqualification of notary public; conveyance not invalid on collateral attack.—While a notary public who is a stockholder and officer oí a corporation, has such interest in the conveyance as disqualifies him from conducting the separate examination and acknowledgment of the wife of the grantor to a mortgage of a homestead to said corporation, such incomptency of the notary, before whom the acknowledgment was made and who certified it, renders the instrument invalid only upon direct attack, and not when collaterally assailed; and in an action of ejectment, where the claim to the property sued for is based upon such conveyance, its invalidity, by reason of the notary’s incapacity, can not be shown by extrinsic parol proof, and if valid on its face, such conveyance is admissible in evidence.
    Appeal from tlie Circuit Court of Jefferson.
    Tried before the Hon. A. A. Coleman.
    This is a statutory real action in the nature of ejectment, brought by the appellee, John Arthur, ‘against the appellant, Arthur Monroe, to recover certain lands specifically described in the complaint. The cause was tried by the court without a jury, upon an agreed statement of facts. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. From a judgment in favor of the plaintiff, the defendant appeals, and assigns as error the rulings of the trial court upon tlie evidence and the rendition of judgment in favor of the plaintiff.
    E. J. Shyer, for appellant.
    In the case at bar, the •action being in statutory ejectment, tlie acknowledgement being valid on its face, parol proof was not admissible to show that tlie officer taking the acknowledgement was interested and disqualified to act; such proof being a collateral attack upon an acknowledgement valid upon its face.
    Tlie defendant being a purchaser for value of the property in question, as a party purchasing property he had a right to rely upon the validity of the conveyances in'the chain of title, which are valid and regular upon tlieir face; and the acknowledgements to the mortgage being valid upon their face, he had the right to assume that the officer was not disqualified, and .will be protected.
    This court has in a number of cases held that an acknowledgement is not open to impeachment by parole evidence, sain and except on the ground of fraud or duress.—Amer. F. L. J!/. Go. v. Thornton, 108 Ala. 258; Read v. Rotean, 107 Ala. 370; Thompson v. Neio Eng. M. Co., 110 Ala. 108; Grider v. Amcr. F. L. 31. Go., 99 Ala. 281; Gitldens v. Bolling, 99 Ala. 319; Cahill v. B. S L. Asso., 61 Ala. 232.
    Charles E. Powell, contra,
    
    cited Hayes v. B. & L. As.so., 121 Ala. 663; Kothe r. Krag Reynolds Co., 50 N. E. Rep. 591; Wilson v. Traer, 20 Iowa, 231; Smith v. Clark, 69 N. W.'lOll; 3Iiles v. Kelley, 10 S. W. 599; Bank v. Rivers, 36 Fla. 575.
   McCLELLAN, O. J.

This is a statutory real action prosecuted by Arthur against Monroe. Defendant claimed title under a mortgage purporting to have been executed by plaintiff and his wife to Pratt Mines Building and Loan Association. The land at the time this paper was signed, acknowledged and delivered, constituted Arthur’s homestead. The 'separate acknowledgement by Mrs. Arthur of her signature, etc., etc., to the conveyance was taken by T. H. Moore, a notary public, who was then a stockholder in and the secretary and treasurer of the grantee corporation. At the trial tlie court held that this mortgage was invalid for that the separate acknowledgement of the wife was made before and taken by a person having such interest in the conveyance as disqualified him to perform and discharge the judicial act he assumed to perform and discharge, and excluded the .instrument as evidence in tlie cause; and thereupon plaintiff had judgment.

That the conveyance is invalid and to he so declared upon proper attack has been determined by this^ court in the case of Hayes v. Building & Loan Association, 124 Ala. 663; and the only question now presented is whether it should have been held void upon the collateral attack made on it in this action. We do not think it should have been so held. The deed was not void on its face, but only because of extrinsic facts resting in parol. These extrinsic facts did not involve any matter for which the execution of the paper could be assailed collaterally, as a mere incident to a proceeding prosecuted for a purpose other than the cancellation of the instrument. In such case the infirmities inhering in the execution of the mortgage can be shown only upon a direct attack on its validity, by which is intended some proceeding begun and prosecuted for the express purpose of having the conveyance adjudged void and cancelled, as, for instance, a bill in chancery setting up the facts as to the notary’s incapacity, and praying that the alleged deed be decreed to be surrendered up and cancelled, etc., etc., and until cancellation is decreed in such, or other direct proceedings, the conveyance will be treated by all courts/ as valid and efficacious.

For the error committed by the circuit court in determining the invalidity of this mortgage upon an objection to it as evidence in this action for the recovery of the land, the judgment must be reversed. The cause is remanded.

Reversed and remanded.  