
    Williamson v. Carskadden.
    1. In an action to enforce a written instrument, in the form of a real estate mortgage, and purporting to have beau executed and acknowledged as required by statute, an answer setting forth that the defendant never acknowledged the execution of such instrument, is sufficient.
    2. In such action, where it appears that the delivery of such instrument was made by one of several persons who signed the same, it may be shown by the others that the delivery as to them was unauthorized and fraudulent. •
    Appeal. Reserved from the District Court of Adams County.
    Abraham Williamson brought suit in the court of common pleas of Adams county, against John Carskadden and others, asking in his petition that the amount secured to him by a certain mortgage of real estate in that county should be ascertained, and the lands sold to satisfy such amount. The mortgage was signed and sealed by John, James, William, R. B., Ann and Elizabeth Carskadden in the presence of the subscribing witnesses, and recited that the mortgagors had.executed to the plaintiff a note for $2,650, dated November 10,1871, payable four years after date, with interest at eight per cent., payable semi-annually, and that the mortgage was given to secure the note. The certificate of acknowledgment was in proper form. It was signed by one Peterson, in his official character as a justice of the peace of the county, and contained the statement that the mortgagors (naming them) had appeared before him on November 10,1871, and acknowledged the signing and sealing the instrument to he their voluntary act and deed.
    The mortgagors, excepting John Carskadden, joined in an answer, in which they state they never appeared before said justice of the peace; that they did not acknowledge, nor did either of them acknowledge the signing or sealing of the pretended mortgage; that John Carskadden alone appeared before the justice of the peace and acknowledged the signing and sealing of said mortgage; that the certificate of the justice of the peace is false and fraudulent; that after John Carskadden had acknowledged the execution of such mortgage, he took the same to the plaintiff, and then, in the presence of the plaintiff,' wrote such a note as is described in the mortgage, and signed thereto the names of all the persons who had signed the mortgage ; that the defendants so answering had never signed, or authorized any person to sign, any such note; that after so making the pretended note, John Carskadden delivered the note and mortgage to the plaintiff ; and that the indebtedness referred to in such mortgage was that of John Carskadden alone, as the plaintiff well knew when he received such - note and mortgage.
    The plaintiff demurred to the answer, and the cause having been decided in the court of common pleas and appealed to the district court, the latter court reserved it to this court for decision.
    
      T. J. Mullen and J. M. Wells, for plaintiff.
    
      J. G. Marshall, for defendants.
   Oket, J.

This suit in equity is prosecuted on a real estate mortgage, regular in form, and actually signed and sealed by the Carskaddens. When delivered to Williamson by John Carskadden, the instrument appeared to have been properly acknowledged before a justice of the peace by all the persons who signed it; and there is no averment that the mortgagee had notice of any irregularity or defect in the acknowledgment, or that the indebtedness referred to in the mortgage does not exist: In fact, the execution of the instrument was acknowledged by John Carskadden ; and the question presented is, whether the other persons who signed it can be heard to deny that they appeared before the justice of the peace and acknowledged the execution of such mortgage.

In Pennsylvania, the officer taking the acknowledgment of a deed performs a judicial act, and in favor of bona fide purchasers, the certificate is conclusive. Williams v. Baker, 71 Pa. St. 476 ; Heeter v. Glasgow, 79 Pa. St. 79. In Ohio, “'the magistrate does not exercise judicial functions in taking such acknowledgment. . . . His act, though official, is purely ministerial.” Truman v. Lore, 14 Ohio St. 144, 151. Nevertheless, the certificate of such officer, where the grantor actually appeared before him, is, in the absence of fraud, conclusive evidence of the facts therein stated. Baldwin v. Snowden, 11 Ohio St. 203. The rigid enforcement of this rule'is required for the security of titles and the repose of society, and, indeed, by every consideration of public policy. Hence, where the testimony to impeach a certificate is uncertain or unsatisfactory, a court should decline to interfere; but, according to the decided weight of authority, where fraud is clearly shown, the certificate of acknowledgment should be declared invalid.

If it is true, as alleged by the defendants joining in the answer, that they never appeared before the officer or acknowledged the execution of such mortgage, the certificate of acknowledgment is, as to them, fraudulent; and in availing themselves of that defense, it is not necessary to show that the mortgagee had notice of such fraud. In fact, the governing principle is very broad. Thus, it has been held that in an action on a recognizance, which is regarded as a record, a plea in bar that the defendant did not acknowledge the recognizance is sufficient (The State v. Daily, 14 Ohio, 91; and see Callen v. Ellison, 13 Ohio St. 446, 454); and, however it may be as to the right to attack a judgment on the ground that there was no jurisdiction over the person (Scobey v. Gano, 35 Ohio St. 550, 553), it is not denied that, in a proper case, a judgment may be directly impeached on that gronnd.

Finding that the matter in the answer, above referred to, constitutes a defense to the action, the demurrer must bo overruled. But it. is suggested that this being done, sufficient appears in the pleadings to show the plaintiffs right to a judgment and order of sale, based on the instrument as an equitable mortgage. We think, however, that a conclusive answer to this suggestion is found in the fact that there is neither averment nor proof to warrant relief in the way suggested. Beyond that, can we say that Jolm Oarskaddcn had authority to deliver the instrument claimed to be a mortgage ? The answer is imperfect; it contains no express averment that he did not have such authority ; but it is charged, in substance, that John Carskadden, at tbe request and in tbe presence of tbe plaintiff, wrote tbe note and signed thereto tbe names of all the persons who bad signed tbe pretended mortgage ; that this was done without the knowledge or consent of tbe defendants so answering ; and that at the same time be delivered those instruments to tbe plaintiff, wbo knew that John Oarskadden alone was the-principal debtor. This afforded to the plaintiff conclusive evidence that tbe recital in the pretended mortgage, as to tbe execution of the note, was not true, and amounted to a denial that John Oarskadden bad authority to deliver such mortgage, except with respect to himself. That a delivery made by fraud is as invalid as an execution obtained by fraud, or an acknowledgment falsely and fraudulently certified, is perfectly clear; and hence, an additional reason is furnished for saying that, taking the averments in tbe answer to be true, such instrument cannot be enforced.

Tbe demurrer will be overruled and tbe cause remanded for further proceedings.  