LUCIEN DURHAM, APPELLANT,

v.

HERBERT F. STEPHENSON, THOMAS STEPHENSON AND MARY F. STEPHENSON, WIFE OF THOMAS STEPHENSON, APPELLEES

Carter, J.:

I. The bill was an ordinary one for foreclosure of a ' mortgage, and we perceive no defect which renders it subject to demurrer for want of equity. The first ground of the demurrer filed by Herbert F. Stephenson was, therefore, properly overruled. The fourth ground of demurrer should have been overruled because it was too broad. It sought to make available in bar of the whole bill, supposed defects relating to a part only of the relief prayed, vis: the recovery of attorney’s fees for foreclosure of the mortgage. Aside from this, we think the mortgage does provide for the payment of attorney’s fees by Herbert F. Stephenson. He executed the notes secured by this mortgage, and they each contain a clause binding the makers for the payment of a reasonable attorney’s fee should it become necessary to collect the note through an attorney. The mortgage was made to secure the payment of purchase money for the planing mills in the manner evidenced by the four notes. If paid at maturity, nothing but principal and interest would be collectable, but if paid thereafter, and after it became necessary to collect through an attorney, reasonable attorney’s fees would become a part of the amount due upon the notes, and secured by the terms of the mortgage.

II. We think the court’s ruling upon the plea of Thomas Stephenson and Mary A. Stephenson was correct. The real estate attempted to be conveyed by the mortgage was the separate statutory property of Mary A. Stephenson, in whom the title was vested. The certificate of the officer attached to the mortgage showed that Mary A. Stephenson, on a separate examination, acknowledged that she signed the instrument freely and relinquished'all dower and right of dower in the property attempted to be conveyed. This certificate 'was obviously defective, because it failed to show that Mrs. Stephenson acknowledged that she “executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband,” as required by section 1958, Revised Statutes. By the express terms of this section such acknowledgment is necessary “to render such * mortgage, * - * whether of separate estate on of dower, effectual to pass a mar ried woman’s estate or right.” This plea did not purport to be a defence to the whole bill. The mortgage embraced other property not covered by the plea. Upon sustaining the plea the court should not have dismissed the bill, but ought to have retained it for relief as to property not embraced in the plea.

III. The court below properly refused to permit the proposed amendment to the bill offered by the complainant. The officer’s certificate, submitted as a part of such amendment, was made nearly nineteen months after the execution, delivery and record of the mortgage. At the time of the execution of the mortgage-he had given a certificate of the acknowledgment taken by him, which certificate had been accepted by complainant as a part of and recorded with the mortgage. Under these circumstances the officer’s powers with respect to such acknowledgment had ceased long before the execution of the amended certificate, and. his subsequent certificate without a re-examination was a nullity. We are referred to several cases from Indiana, Mississippi and Missouri which it is claimed sustain the proposition that an acknowledgment is a matter in pais, and the officer’s certificate the evidence thereof, and that the certificate may be amended by the officer at any time while he remains in office, so as to speak the truth.

We hold that upon principle when an officer has taken an acknowledgment and made his certificate thereof which has been delivered to and accepted by the grantee as the evidence of such acknowledgment, his power over the subject-matter ceases, and he can not subsequently amend his certificate, or make a new one, in the absence of a re-acknowledgment, or what is equivalent thereto, on the part of the grantor. The following authorities sustain this view, and the opposing decisions we think are unsound: I Delvin on Deeds, §§542 et seq.; Bours v. Zachariah, 11 Cal. 281, S. C. 70 Am. Dec. 779; Griffith v. Ventress, 91 Ala. 366, 8 South. Rep. 312; Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492, S. C. 49 Am. Rep. 130; McMullen v. Eagan, 21 W. Va. 233; Elliott v. Peirsol, 1 Pet. 328; Merritt v. Yates, 71 Ill. 636, S. C. 23 Am. Rep. 128.

As a result of the views herein expressed, the decree of the court below sustaining the plea of the defendants Thomas Stephenson and Mary A. Stephenson, and refusing to permit the amendment proposed to-the bill by complainant, is affirmed. The decree sustaining the fourth ground of the demurrer of Herbert F. Stepherison, and dismissing the bill of complaint, is reversed, with directions to' the Circuit Court to enter an order overruling the demurrer, and for further proceedings consistent with equity practice and this opinion.