
    Joshua Baldwin v. Richard H. Snowden, Martha A Snowden, his wife, and others.
    A regular statutory certificate of the acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated.
    The failure of the husband to disclose to his wife the character of a mortgage which she executed at his request, and in entire ignorance of its contents, the grantee not being present, and having no reason to suspect imposition, does not constitute such fraud as will enable her to contradict, by parol,, the cer tifieate of acknowledgment.
    Where a deed, regularly executed and acknowledged by husband and wife, is delivered by the husband, without the knowledge of the wife, and is accepted by the grantee, acting in good faith, and without notice of her dissent, she is bound by such delivery.
    Civil Action. Reserved in the district court of Franklin county.
    The facts of this ease, as presented by the record, are as follows:
    The petition and amended petition state, that the defendants, Richard H. Snowden and wife, on the third day of February, 1854, executed to the defendants, Lambert & Co., a mortgage upon certain real estate therein described, to secure the payment of three promissory notes, made by Richard EL Snowden to the defendants, Lambert & Co., all dated January 24,1854: one for $1707.92, payable nine months from date; one for $1774.25, payable eighteen months from date, and one for $1821.28, payable two years from date; that on the 1st of January, 1855, Lambert & Co. sold and assigned to plaintiff the note due eighteen months from date; that plaintiff still holds the same, and that a partial payment has been made thereon by Richard EL Snowden; that Lambert & Co. still hold the note due two years from date, upon which also Richard EE. Snowden has made a partial payment; that the defendants, Bowen & McNamee, hold a mortgage executed by Richard H. Snowden and wife, at the same time with the mortgage to Lambert & Co., and upon the same premises, tc secure the payment of certain notes therein described; that partial payments have been made on said notes by Richard H. Snowden; and that Bowen & McNamee are entitled to participate in the proceeds of the mortgaged premises; that the defendants, Greenway, Brother & Co., hold a mortgage upon the same premises, but that it is satisfied. The plaintiff asks judgment, and for the sale of the mortgaged premises, and the application of the proceeds according to the rights of the parties. A copy of the mortgage to Lambert & Co. is attached to the petition.
    None of the defendants have answered, except Mrs. Snow-den. In her answer she says:
    “ That the instruments set out in said petition, purporting to be mortgages, were and are, as she is advised and believes, void in law, for the reasons following:
    
      “ I. Because, as to her, there was never any valid delivery of said instruments.
    
      “ The facts are as follows:
    “ At or about the time of the date of said instruments, her husband, Richard H. Snowden, and a Mr. Smith, came into the room where this defendant and her mother were sitting, at their dwelling house, in Columbus. Her husband had two or three papers in his hand. He went to a table in the room, and, placing the papers on the table, said to this defendant—
    I wish you would sign these papers, or words to that effect. This defendant then went to the table, and her husband pointed out the places on the papers where he wished her to sign her name, and she did so sign her name accordingly. Her mother was then requested to put her name to the papers, and she did so.
    “ The papers were then left lying on the" table where they had been all the while, and after a little, her husband took them from the table, and without anything further said or done, and with the papers in his possession, he and Mr. Smith went away. Whether Mr. Smith signed the papers or not, this defendant does not know.
    “ This defendant neither before or at the time, had any knowledge or intimation of the contents of said papers, or either of them; nor were they, or either of them, read to her or in her presence, nor were the contents made known to her, nor was she inquired of or examined in respect thereto, either in the presence of her husband, or apart from him, by any person; nor was she advised, from any source, what the papers were, or what their object was.
    “ She was then about nineteen years of age, and had been married about one year. Her father had been dead several years.
    
      “ She was unacquainted with business matters altogether and knew nothing about executing instruments of writing, or making bargains of any kind.
    “ She put her name to said papers, just because her husband requested her to, without any knowledge or intimation that they affected her property in any way.
    “ During the entire transaction, she. had no knowledge or information of the nature of the instruments, or either of them, nor for whose benefit they were intended, nor who was to receive them, nor to whom they were to be delivered; or in fact what was to be done with them.
    “ Her mother, after her husband and Mr. Smith had gone away, said to this defendant — You ought not to sign papers in that way, without knowing what they are — or words to that effect.
    “ This defendant did not, at the time, know that said Smith was a magistrate or officer of any kind, nor did she know at all what his business there was.
    
      “ She received no money or other consideration on account of said instruments, or either of them.
    “ She has since been informed that the instruments set out in' the petition are the instruments which she executed in the manner hereinbefore mentioned; and that, in reality, they cover her own private property which she inherited from her father, except a small piece purchased with her own money, to the value of several thousand dollars in all.
    
      “ She has also since been informed that said Smith was an officer authorized to take acknowledgments of deeds, and that «aid instruments purport to have been acknowledged by this defendant before him; but such is not the fact, so far as regards the acknowledgment of this defendant; but the facts are, truly, as hereinbefore set forth.
    “During said transaction there were no persons in the room, except this defendant, her mother, her husband, and Mr. Smith. There was no one of the grantees in said instruments there, and no one representing them, or either of them.
    “ This defendant never authorized her husband, or any one else, to deliver, said instruments to anybody, nor had she any knowledge, at all, what her husband was going to do with them, or either of them.
    “ She signed the papers in utter ignorance of their contents, and left them on the table, not knowing who was interested in them, or where they were going; nor did she ever deliver them, or either of them, or intend to deliver them, or consent that they should be delivered, to anybody; nor did she know anything what they were, or what they were designed for, or that anybody wanted them delivered. Nor does she know what her husband did do with them after he took them away in the manner hereinbefore stated.
    “ Wherefore this defendant avers there was never any delivery of said instruments, and that the same are void as to her.
    “II. And this defendant says that said instruments are void, because the same were obtained by imposition, and in fraud of her rights, as follows :
    “ The said Richard H. Snowden, her husband, was in debt. The mortgages set out in the petition were prepared beforehand. Her husband came with said Smith, a notary public, to the room where this defendant was sitting with her mother, and requested this defendant to sign said instruments, with others, which she did. This defendant was then about nineteen years of age, and had been married about one year, and was ignorant in matters of business, and unacquainted with executing papers and making contracts of any kind. That said instruments were not read to her, nor did she know what they were, nor what was intended by them. That she was not examined, in respect to them, by said Smith, or any one else, either in the presence of, or separate from her husband; nor did the said Smith, or any one else make known to her -oe contents of said instruments, or any part thereof; nor nad she the slightest intimation, from any source, that said instruments in any way affected her own property — in fact, she did not know anything what they were or what they were designed for. She put confidence in her husband, and signed the papers because he requested her to do so, but not supposing that they had any reference at all to her property. She received no money or other consideration therefor. The debt for which said mortgages were given was the sole debt of her husband.
    “ This defendant, until afterward, did not know that said Smith was a notary public; nor did he disclose to this defendant what his business was; and this defendant, at the time, had no other idea but that he was transacting some private business with her husband. And' the fact that said instruments were mortgages was kept entirely secret from this defendant.
    “ Wherefore she insists that said instruments are void as to her.
    “ III. And this defendant further says, that her mother, Zilpha Bailey, has her dower estate in the premises in said mortgages described.”
    To this answer the plaintiff demurred, and the case was reserved in the district court to this court, for the decision of the questions thus presented.
    N. H. & W. Swayne and Geiger & Andrews, for plaintiff.
    It will be observed—
    (1) . Richard H. Snowden has not answered.
    (2) . He has had the full benefit of the time given him by the notes secured by the mortgages.
    (3) . It is not pretended that there was not a sufficient delivery by him.
    (4) . The certificates of the notary are in all respects full and formal.
    
      (5) . It is not pretended that the mortgagees have not acted' in perfect good faith,” “ without knowing, or having any reason to suspect, that it ” (the certificate) “ is untrue; ” nor is it pretended, that they knew “ of any circumstance which would put an honest man upon inquiry.”
    (6) . It is not charged that there was any fraud or conspiracy on the part of the notary.
    (7) . Nor is it charged that there was any fraud or intentional deception practiced upon the wife by her husband, nor is there any denial that she had previously consented that her property should be mortgaged, to procure time for her husband in the payment of his debts. The pith of her answer is, that she did not, at the time of the execution of the instruments, know what they contained, or to what they related. All that is alleged is consistent with a previous understanding that her property should be incumbered in this way for his benefit. And that understanding may have been the reason why she did not inquire as to the object and contents of the papers. Nothing is said from which it can be inferred, that they were not then and ever since upon the most cordial terms.
    (8) . The plaintiff is the assignee of one of the notes secured by the mortgage to Lambert & Co. He took it in good faith, before it was due.
    I. As to the delivery being sufficient, the following authorities are cited: 1 Shep. Touch. 56, 57; Com. Dig. Fait (A. 3), 2 Johns. 404; 12 id. 427; 17 Ala. 89 ; Shelton’s case, Croke Eliz. 7; Souverbey v. Arden, 1 Johns. Ch. Rep. 240; Garnous v. Knight, 5 B. & C. 691; Loyd v. Bennet, 8 C. & P. 124; Lloyd lessees v. Geddings, 7 Ohio Rep. pt. 2, 50; Shirley’s lessee v. Ayres, 14 id. 307; Steele v. Lowry, 4 id. 72; Comegys v. Eversole & Bigelow, 1 Handy 24; 5 Ohio St. Rep. 256; Mitchell’s lessee et al. v. Ryan, 3 Ohio St. Rep. 377; Durant v. Ritchey, 4 Mason’s Rep. 54, and cases cited in note; Selzer v. Brock, 3 Ohio St. Rep. 307; Swan’s Stat. 309; Albany Fire Ins. Co. v. Bay, 4 Comst. Rep. 12; Hill’s lessee v. West et al., 8 Ohio Rep. 225; Bool v. Mix, 17 Wend. 128; Martin v. Dwelly, 6 Wend. 12, 13; Hepburn v. Dubois, 12 Pet. 375; Coke Litt. 112a, 187b; Com. Dig., Baron & Feme D.; Hale’s P. C. Ch. 47; 1 Greenleaf’s Ev. sec. 28; 1 Shep. Touch. Ch. 2, Fine; Idem. Ch. 3, Common Recovery; Ackert v. Pultz, 7 Barb. 386, 388.
    II. Fraud of the husband in procuring a wife to execute a-mortgage, will not affect its validity, unless the mortgagee-was a party to the fraud, or aware of it before he received the security. James v. Fisk, 9 Smedes & Marsh. 145; Aikin v. Morris, 2 Barb. Ch. Rep. 140; Woodin v. Haviland, 18 Conn. Rep. 101.
    III. That the notary’s certificate can not be impeached, the following authorities are cited. Louden v. Blythe, 16 Penn. Rep. 540; Jamison v. Jamison, 3 Wharton, 469; McNeely v. Rucker, 6 Blackford, 391; Bissett v. Bissett, 1 Harr. & McH. 211; Ridgley v. Howard et al., 3 id. 322; Schrader v. Decker, 9 Barr, 15; Hartley v. Frosh, 6 Texas Rep. 215; Bank of Wooster v. Stevens, 1 Ohio St. Rep. 233; Henry v. Vermillion, & A. R. R. Co. et al., 17 Ohio Rep. 190.
    
      P. B. Wilcox for Mrs. Snowden argued—
    1. That as to her there never was any valid delivery of said instruments, and cited: 1 Leonard, 140 ; 4 J. J. Marsh. 572; 7 Greenl. Rep. 181; 1 Gray (Mass.), 409; 4 Harrington, 1; 17 Ala. 89, 96; 10 Ind. 191; 5 Barn. & Cress. 671; 1 Atk. 625; 8 Dowl. & Rya. 364; 4 Phil. Ev. 1281, note, 888; 2 Greenl. Cruise, 334, note 2, 2d Ed. 1856; 1 Chase Stat. 186, 484; 4 Mass. 543; 1 Salk. 389; Godbolt, 270; 1 Salk. 388; 3 Leonard, 84; 34 Penn. 24; 44 Maine, 25; 3 Yerger, 548.
    2. “ That said instruments are void because the same were obtained by imposition, and in fraud of her rights” in the language of the answer. That the certificate of the officer being false and fraudulent, the mortgages fall to the ground,, and all claims derived from it, just as in cases of infancy, insanity, etc. 6 Texas, 208 ; 16 Penn. St. Rep. 532 ; 6 Ohio. St. Rep. 510 ; 15 Serg. & Rawle, 72 ; 9 Barr, 14.
    That the evidence of fraud and imposition, ought to go to-ft jury.
   Scott. J.

The demurrer of the plaintiff presents the questica: cfi the sufficiency of the answer of Mrs. Snowden, as a bar to the plaintiff’s action.

This answer denies the validity as to Mrs. Snowden, of the mortgage, the lien of which the plaintiff seeks to enforce, upon two grounds—

1. Because it was never delivered by her, and

2. Because it was obtained by imposition and in fraud of her rights.

We propose, first to consider the latter branch of the answer.

The facts which constitute the alleged fraud and imposition, are fully and minutely stated in the answer, and directly impeach the truth of the notary’s certificate of acknowledgment.

The answer does not charge the mortgagee, or his assignee, with any participation in, or knowledge of the fraud alleged to have been practiced on the respondent. Nor does it directly impugn the good faith of the notary, otherwise than by averring that he did not, as he has certified, make known to her the contents of the mortgage deed. She does not even charge her husband with any misrepresentation, or intentional deception. It is true, she says, that the fact that the instruments which she signed were mortgages, was kept entirely secret from her, but this, when taken in connection with the facts stated, can not be understood as importing more than an averment, that she was not informed of their character. She complains of no artifice, no act done, or word spoken, either by her husband or the notary, calculated to deceive her. Her allegations of fraud are evidently a mere inference, which she draws from the facts stated. And yet those facts are entirely consistent with honesty of purpose, both on the part of the notary and her husband. When asked, by her husband, to sign the papers which had been prepared for the purpose, she did so without question or hesitation. She did so, because she had full confidence in her husband. If, in the fullness of conjugal affection, she was willing to abide by the judgment, and conform to the wishes ■of her husband, without asking any questions, it would seem unreasonable that she should now seek to relieve herself from the consequences of that confidence, at the expense of others who were less confiding, and guilty of no fault. Her ready compliance with her husband’s wishes in signing the mortgage in the notary’s presence, without inquiry or objection, would naturally impress him with the conviction that she was fully apprised of the contents of the instrument which she was executing. Under such circumstances, the averments of the answer can not be understood as importing a charge of intentional or actual fraud, on the part of the notary. How soon after the execution of the mortgage, she learned its true character, is not shown by the answer; but it may be fairly presumed, in the absence of any averment to the contrary, that under the influence of the caution given by her mother, who witnessed its execution, she soon made the proper inquiries, and was fully informed as to what she had done. Yet no intimation appears to have been given of any dissatisfaction, on her part, until her husband had obtained the full benefit of the time given by his creditors, on the faith of the mortgage, and they, thereupon, proceeded to enforce their lien. But, be this as it may, and supposing her husband to have been guilty of fraud, in not disclosing to her the character and effect of the deed which she signed without inquiry, yet the notary is charged with no complicity in this fraud, or with any intentional deception. And there is no suggestion that the mortgagee was in any way privy to, or cognizant of any imposition. Can she, under these circumstances, impeach the certificate of the officer ? If so, then such certificate is, at most, but prima facie evidence of the facts which it purports to verify. But this, we think, would contravene the policy of the law. The title to real estate would generally be insecure, if the official certificate of a magistrate, authorized by statute to examine, as to the execution of a deed, and to certify the acknowledgment of the grantors, could not be relied on as conclusive. The certificate of acknowledgment is an essential part of the conveyance, and without it the title can not pass. And we think it can no more be contradicted by parol, than any other part of the deed. It is true, the deed may be impeached and set aside for fraud. But that fraud must be something more than a breach of the confidence reposed by one of the grantors in the other. Where the grantee does not participate in the fraud, and is not cognizant of it, nor of any circumstances which would put an honest and prudent man upon inquiry, and has acted on the faith of the conveyance, we apprehend it can not be set aside on the ground of fraud. Thus in Schrader v. Decker, 9 Barr 14, it was held that “ the acknowledgment of a deed, by husband and wife, for the wife’s land, may be shown to have been obtained by fraud and duress of the wife, and thus avoided as to volunteers, or purchasers with notice, aliter as to Iona fide purchasers without notice.” So, in Louden v. Blythe, 16 Penn. Rep. 532, and 27 Penn. Rep. 22, where it was held that “the certificate of the magistrate is conclusive in favor of one who accepted it in good faith, and paid his money, without knowing or having reason to suspect it to be untrue. But, that if the certificate be false in fact, and the mortgagee knew it, or knew of circumstances which would put an honest and prudent man upon inquiry, then it may be contradicted by parol evidence.” In the case last cited, the mortgage was set aside, not simply because the magistrate taking the acknowledgment knew that the wife’s acknowledgment was induced by undue influence, on the part of the husband, but because the mortgagee was also present, and knew enough to put him upon inquiry. In Hartley v. Frosh, 6 Tex. 208, it is said that “ where the certificate of the privy examination of a married woman is in due form, in order to impeach its veracity, it is not sufficient to allege that there was no privy examination, that the contents were not made known to her, etc.; the certificate is conclusive in the absence of an allegation of fraud or imposition — as, for instance, that there was a fraudulent combination between the notary' and the parties interested.” We doubt whether a case can be found where the certificate of the magistrate has been allowed to-be impeached, on the ground of fraud, without evidence charging the grantee with notice of the fraud, or the officer taking it with complicity therein.

We are satisfied, therefore, that the facts stated in the ■answer in this case would not warrant the introduction of .parol evidence to contradict the certificate of the notary.

But the respondent further avers that she never delivered, ■nor authorized her husband to deliver the mortgage deed, upon which suit is brought. She does not deny the fact that it was signed and sealed by her; nor that it was delivered by her husband; and if she is conclusively bound by the •certificate of acknowledgment, which shows her knowledge ■of its contents, and the purpose for which it was intended; and if, with this knowledge, she permitted her husband, without objection or inquiry, to take and use it according to his own judgment, then she has no right to complain that he delivered it in accordance with its terms and manifest purpose. Under such circumstances, a delivery by him must bind her, as well as himself. The grantee may properly regard her. •execution and acknowledgment of the instrument as evidence of her consent to its delivery; and if, without notice of her dissent, it is delivered by the husband, she can not afterward be -permitted to question his right to do so, without allowing a fraud to be practiced against the grantee. Were it otherwise, a large majority .of all the deeds executed by husband .and wife, within this State, have never been delivered by the wife, and would not bind her.

It is quite true that a deed of conveyance is inoperative till delivered, and that if a conveyance of the wife’s land, executed by husband and wife, be not delivered till after the wife’s death, when her estate is vested in her heirs, their estate can not then be divested by a delivery by the husband, without their consent. Such is the doctrine of the case of Shoenberger v. Zook et ux. 34 Penn. Rep. 24, cited by counsel. That decision was, no doubt, correct, but does not touch the present case. One much more nearly in point, is that of Ackert v. Pultz, 7 Barb. 386, in which it was held that, “ where husband and wife execute a deed, and deposit it as an escrow, to be delivered on the execution of a bond and mortgage, the husband’s consent to the delivery of the deed to the grantee without a performance of the condition will bind the wife.”

Many authorities might be referred to, bearing more or less directly on the several defenses set up in this answer, and sustaining the views we have expressed. 17 Alabama Rep. 89; James v. Fisk, 9 Sm. & Mar. 145; Aiken et al. v. Morris, 2 Barb. C. R. 140; Jamison v. Jamison, 3 Wharton, 469; McNeely v. Rucker, 6 Blackf. 391.

We think that the demurrer to the answer must be sustained, and the case remanded to the district court for further proceedings.

Brinkerhoee, C.J., and Sutliee, Peck, and Gholson, JJ. concurred.  