
    McIntyre v. White.
    
      Action of Ejectment.
    
    l. Judge of probate; duty in keeping records of conveyances. — It is the duty of judges of probate to record in a fair hand word for word conveyances of property with the acknowledgments, proof, etc. Code, § 986. The purpose and scope of this duty cover the further duty on the part of the recording officer to see that the original is transcribed in the record with exact correctness; and to this end to compare, if necessary, the record when complete with the original. The duty is the same when the record book is printed.
    2. Record of conveyances; presumed to be correct. — The record of conveyances which a probate judge is required to make is, when made, presumed to be correct; but the presumption is only prima facie, and subject to be overcome by proof showing error. The presumption is not destroyed by the failure of the judge to compare the instrument with the record after it is made.
    3. Acknowledgment of conveyance; not impeachable. — The recitals of an acknowledgment of a conveyance when the same has been signed by the grantors in the presence of an officer authorized to take acknowledgments, cannot be impeached by parol except for fraud or duress, but the certificate of the acknowledgment of the officer is conclusive as to the facts therein stated.
    4. Evidence; irrelevant, when admissible. — It is never erroneous to receive irrelevant evidence to rebut evidence of like kind offered by the opposite party. He cannot complain at the introduction of such evidence. Hence, where one party has offered evidence to show that the acknowledgment of a married woman was taken separate and apart from her husband, the other party may show in rebuttal that it was not so taken.
    5. Same; what is hearsay. — Where the inquiry is whether or not a certificate of acknowledgment on a deed was similar to such a certificate contained in a book of forms, it is error to permit a witness to say that she “heared her son reading the mortgage out of the book and heared her daughter-in-law say the mortgage don’t read like it is in the'book” — the same being hearsay.
    Appeal from. Lauderdale Circuit Court.
    Tried before Hon. Thos. R. Roulhac.
    Miles White mortgaged his homestead to C. Smith. His wife signed the mortgage, and her separate acknowledgment was taken. White died. The mortgage was foreclosed and John W. McIntyre became the purchaser at the foreclosure sale, and received a deed to the property. Martha E. White, the widoAV of Miles White, brought this suit to recover the possession of the property. She claimed that her separate acknowledgement Avas defective in that it did not state that she signed the mortgage “without fear, constraint or threats” of her husband, but that the Avord “persuasion0 Avas used instead of the Avord “threat.” The mortgage Avas lost. The record of it in the probate office disclosed that the Avord persuasion Avas used in the separate acknoAvledgment. But there Avas evidence tending to sIioav that this Avas a mistake of the recording officer, and that in the original mortgage the Avord “threats” Avas used in the acknoAvledgment. This evidence Avas controverted. There Avas also evidence that the officer who took the acknoivledgment of the Avife, did not take it separate and apart from her husband. This Avas denied by the officer. The fact testified to on AAdiich reAursal is had is stated in the opinion.
    Simpson & Jones, for appellant.—
    (1). Record of lost deed only prima facie evidence of contents of the deed. Gaston v. Merriam, 22 N. W. Rep. 614; Booth v. Tier man, 109 U. S. 205; Harvey <& Wife v. Thrope, 28 Ala 250. (2). Recitals of officer in his certificate of ac knowledgment cannot be impeacher. — Am. Freehold Mort. Go. v. James, 105 Ala. 347.
    John T. Ashcraft, contra.
    
   HARALSON, J.

Section 986 of the Code requires the judges of probate to record “in a fair hand word' for word,” conveyances of property with the acknotvledgments, proof, etc.; and these conveyances as provided in another section, when acknoAv]edged or proved according-to laAV and recorded Avithin twelve months from their date, may be received in evidence Avithout further proof; and if the original has been lost or destroyed the court may receive a transcript in place of the original. — § 992. In Harvey v. Thorpe, 28 Ala. 250, it Avas held that a transcript from the record of a lost deed, is only prima facie evidence of the contents of the deed, on the ground that all public officers must be presumed to have discharged the duties Avhich the laAV requires of them; but that parol evidence is admissible to sIioav that it was not correctly recorded. — Boothe v. Tierman, 109 U. S. 205. The duty of the recording officer as prescribed by statute is to record conveyances “in a fair hand Avord for Avord.” It is thus made his duty to see that the original is transcribed in the record, Avith exact correctness. The statute seems to pre-suppose, that the officer Avill transcribe the conAffiyance in his own handAvritiiig, and exercise all the particularity Avhich is necessary to prevent error. If necessary to compare the record AAdien complete Avith the original to insure correctness, he should make the comparison. When a record hook is printed to subserve con-Areniences in transcribing, it is no less his duty to compare the printed original AAdth Avhat is intended to be the printed record, than AAdien transcribing in ink Avith his OAvn hand. It is because the laAV presumes he Avill discharge this duty, the-presumption of the correctness of the record is indulged. There is no reason for presuming correctness in the one and not in the other instance. If the officer had transcribed the original in his own hand on the record, but failed to compare the record AAdien complete, AAdth the original in order to insure correctness, this fact Avould not do away Avith the presumption of correctness indulged in the law; nor as in this case, Avill this presumption be set aside, if he should fail to compare the conveyance Avith the printed record after he had completed it. But, in either case, because of the knoAvn fact that the necessary precautions are not ah ways taken by transcribing officers of records to prevent errors, this presumption is only prima facie, and subject to be overcome by proof slioAving error. There Avas no error in refusing to give the charge requested by defendant.

It is with us Avell settled, that the recitals of an acknoAvledgment of a conveyance AAdien the same has been signed by the grantors in the presence of an officer authorized to take acknoAvledgments, cannot be impeached by parol except for fraud or duress, but the certificates of acknoAvledgment of the officer are conclusive as to the facts therein stated. — A. F. L. M. Co. v. James, 105 Ala. 317. In this case, there Avas no pretense of fraud or duress in procuring the signature of the wife, and there Avas no conflict in the evidence showing that the wife was in the presence of the officer AAdien she acknoAvledged the mortgage. The wife and the acknoAvledging officer so stated. The acknoAvledging officer, Cypert, examined by defendant, stated that the Avife acknoAvledged the mortgage separate and apart from her husband. Whether she did so or not, Avas not an issuable fact in the case. When Lee White, a Avitness for plaintiff, Avas examined, he was asked by plaintiff, “Was or not the acknoAvledgment of plaintiff to the mortgage taken separate and apart from her husband, Miles White?” The defendant objected on pertinent grounds. The court stated that he Avould allow the Avitness to answer, for the purpose of contradicting the statement of the witness, Cypert, to the effect that the acknoAvledgment was taken separate and apart from the husband, and overruled the objection. The evidence was clearly irrelevant, but was directly in rebuttal to' that testified to by defendant’s Avitness, which was also irrelevant. It is never erroneous to receive irrelevant evidence to rebut evidence of like kind, offered by the opposite party. He cannot complain at the introduction of such evidence. — M. & B. R. Co. v. Ladd, 92 Ala. 289; Winslow v. The State, Ib. 81; Morgan v. The State, 88 Ala. 223; Gandy v. The State, 86 Ala. 21; Ford v. The State, 71 Ala. 387.

In order to show that the word persuasion, instead of the word threats, Avas used in the original acknowl edgement of the mortgage, and that there was. no mistake in its record, Lee White, a witness for plaintiff, stated that he had a form book, which he had borrowed from the justice of the peace, Oypert, and he compared the acknowledgment to the original mortgage with the one in the form book, and it was not like that in the book; that the mortgage used the word persuasion, and the book the word threats. For the same purpose the plaintiff was introduced and testified, that she could not read nor write, but she heard her son, Lee White, reading the mortgage out of the book, and she heard her daughter-in-law say, “The mortgage don’t read like it is in the book.” To this last statement, defendant objected on the ground, that it was mere hearsay testimony, but the court overruled the objection, and permitted the evidence to go to the jury. In this there was manifest error. The evidence should have been excluded for the objection interposed to its admission; and for this error, the judgment of the lower court must be reversed and the cause remanded.

Reversed and remanded.  