Summary
holding that the certificate of acknowledgment was sufficient
Summary of this case from In re BozmanOpinion
No. 40654
Decided December 6, 1967.
Real property — Mortgages — Acknowledgment — Section 5301.01, Revised Code — Mere signing a proper acknowledgment, when.
1. In the absence of evidence to the contrary, one who signs his name to a document in the presence of another thereby acknowledges his signing thereof to such other.
2. The mere signing of a mortgage in the presence of an officer authorized to take an acknowledgment thereof may constitute a proper acknowledgment of such instrument within the meaning of Section 5301.01, Revised Code.
APPEAL from the Court of Appeals for Wayne County.
This action was instituted in the Common Pleas Court of Wayne County to foreclose a mortgage lien upon real estate and to marshal the liens thereon.
A defendant who claimed a judgment lien upon that real estate contended that his lien was valid; and that the mortgage lien was not valid because it had not been properly acknowledged before a notary public or other officer, as required by Section 5301.01, Revised Code, which reads, so far as pertinent:
"A * * * mortgage * * * must be signed by the * * * mortgagor * * * and such signing must be acknowledged by the * * * mortgagor * * * in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing must be acknowledged by the * * * mortgagor * * * before a * * * notary public * * * who shall certify the acknowledgment and subscribe his name to the certificate of such acknowledgment."
Both parties apparently concede that, if plaintiff's mortgage was not properly executed, it could not be effective against a valid judgment lien. See Citizens Nat. Bank in Zanesville v. Denison (1956), 165 Ohio St. 89, 133 N.E.2d 329.
The certificate of acknowledgment reads, so far as pertinent:
"Before me, a Notary Public * * * personally appeared the above named Lewis F. Hoover and Helen Hoover, husband and wife and acknowledged the signing of the foregoing conveyance to be their voluntary act and deed for the uses and purposes therein mentioned.
"In testimony whereof, I have hereunto set my hand and official seal at Rittman, Ohio, this 10th day of December A.D., 1963.
"Wayne Forrer
"Notary Public"
The findings of fact of the Common Pleas Court, so far as they relate to the execution and acknowledgment of the mortgage, read:
"* * * after said loan contract and mortgage were examined by said Lewis F. Hoover and Helen Hoover and explained to them in the presence of both Iris Mogler and Wayne E. Forrer and while * * * Mogler and * * * Forrer were watching them * * * [the Hoovers] did sign * * * the mortgage * * * at the two places where their signatures appear therein, and * * * did know that they were observed while signing said mortgage, and * * * they were personally known to the said * * * Mogler and * * * Forrer at the time of signing said * * * mortgage; that no words were spoken by said * * * Forrer as a notary public to * * * [the Hoovers] regarding their signatures; that they simply were asked to sign the loan contract and mortgage at the places indicated, and * * * they did so sign their names in the presence of * * * Mogler and * * * Forrer; that the * * * [Hoovers] were adult, competent persons at the time of said signing, and * * * Forrer was * * * a duly authorized notary public * * *; that upon the said defendants Hoover having signed said * * * mortgage at the places indicated, the papers were pushed across a counter to the said * * * Mogler and * * * Forrer, and that * * * Forrer did thereupon sign as a witness to their signatures and also executed the certificate of acknowledgment on said mortgage as a notary public and affixed his signature and his seal as notary public and that * * * Mogler did thereupon also sign as a witness to the signatures of * * * [the Hoovers] on said mortgage * * *."
In its judgment, the Common Pleas Court held that the judgment lien was invalid; and that the mortgage lien was valid, because properly acknowledged pursuant to the requirements of Section 5301.01, Revised Code.
The judgment of the Common Pleas Court was affirmed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.
Messrs. Funk, Funk Eberhart and Mr. Edward K. Eberhart, for appellee.
Messrs. Amer, Cunningham, Cunningham, Brennen Miller and Mr. Richard T. Cunningham, for appellants.
Probably because of Read v. Toledo Loan Co. (1903), 68 Ohio St. 280, 67 N.E. 729, it is not contended that Section 5301.01, Revised Code, has not been complied with merely because the notary public who certified the acknowledgment and subscribed his name to the certificate of the acknowledgment was also one of two witnesses who attested the signing of the mortgagor and subscribed his name to the attestation. Admittedly, the mortgage involved in the instant case was signed in the presence of a notary public but the makers thereof did nothing else to indicate their acknowledgment thereof.
The question therefore is whether the mere signing in the presence of a notary public may amount to the acknowledgment required by Section 5301.01, Revised Code.
There are authorities which seem to support either an affirmative or a negative answer to this question. See 29 A.L.R. 919, and 25 A.L.R. 2d 1124.
Manufacturers' Finance Co. v. Amazon Cotton Mills Co. (1921), 182 N.C. 408, 109 S.E. 67, 29 A.L.R. 916; Hoboken Land Improvement Co. v. Kerrigan (1864), 31 N.J.L. 13; Brownson v. Scanlan (1883), 59 Tex. 222; Wise v. Postlewait (1869), 3 W. Va. 452; In Re Hammett (1923), 286 F. 392.
McOuatt v. McOuatt (1946), 320 Mass. 410, 69 N.E.2d 806; Punchard v. Masterson (1907), 100 Tex. 479, 101 S.W. 204; Guyer v. Union Trust Co. of Indianapolis (1914), 55 Ind. App. 472, 104 N.E. 82.
In our opinion, the answer to this question depends upon the words of Section 5301.01, Revised Code. Apart from that statutory section, the statutes of Ohio provide no guidance as to the meaning of the statutory words "signing * * * acknowledged by the * * * mortgagor * * * before * * * a * * * notary public."
That statutory section requires that the "signing" by the mortgagor "must be acknowledged by the * * * mortgagor * * * in the presence of two witnesses," but also requires that those two witnesses "shall attest the signing and subscribe their names to the attestation." The word, "attest," means "to bear witness to." See Webster's Third New International Dictionary (1961). See also State, ex rel. State Bridge Comm., v. Griffith (1940), 136 Ohio St. 334, 25 N.E.2d 847.
Thus, the certificate provided for in the statute requires each of the two witnesses to bear witness to "the signing" but requires neither to certify anything more with respect to the statutory requirement that the "signing * * * be acknowledged by the * * * mortgagor * * * in" their "presence."
The reasonable conclusion from these statutory provisions is that, where a witness has seen the signing, there has necessarily been an "acknowledgment" of such "signing" by the signer in his presence. Thus, it appears that the statute considers that one who witnesses a signing necessarily witnesses an acknowledgment of such signing. It follows that, where a notary public witnesses a signing by the mortgagor, there has been an acknowledgment of such signing before such notary public within the meaning of the words used in Section 5301.01, Revised Code.
On the other hand, one before whom the mortgagor acknowledges his signing does not necessarily witness the signing. Thus, in White v. Denman (1853), 1 Ohio St. 110, it was held in effect that a statutory certificate by the notary of the "acknowledgment" of "the signing" could not, ipso facto, amount to the required attestation ( i.e. witnessing) by such notary as a witness of "the signing." But cf. statement in the opinion in Read v. Toledo Loan Co. supra ( 68 Ohio St. 280), at 297, indicating that a witness may be sufficient if he either "saw the grantor sign the instrument or heard him acknowledge the same."
In our opinion, in the absence of some evidence to the contrary, one who signs his signature to a document in the presence of another thereby acknowledges his signing thereof to such other.
What little authority there is in Ohio supports this conclusion. In addition to Read v. Toledo Loan Co. supra ( 68 Ohio St. 280), see Baldwin v. Snowden (1860), 11 Ohio St. 203, 204, 205, 206, 210, 211.
There is no evidence in the instant case that will support any other conclusion.
In view of the conclusion which we have reached, it is unnecessary for us to consider whether the Common Pleas Court and the Court of Appeals were correct in holding that the judgment lien was invalid.
If the mortgage lien is valid as we hold it is, there would admittedly be insufficient proceeds from sale of the mortgaged property to provide anything for that judgment lien. Hence, anything we said with respect to validity of the judgment lien would amount to dicta.
Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.