93 FEDERAL REPORTER. BERRY et ux. v'; NORTHWESTERN & P. HYPOTHEEK BANK (NORTHWESTERN & P. MORTG. CO.). (Circuit Court of Appeals, Ninth Circuit. October 5, 1898.) No. 440. 1.
a mortgagor owned both the S. E. 14 and S. W. 14 or a quarter section 9f land, and the former was Inserted, by mistake of the scrivener. instead of the latter, and after the mistake was discovered the owner . mortgaged theS. W. 14 to another, and took no steps to have the prior mortgage reformed, he cannot object to a foreclosure decree directing a sale of the S. E. 14 thereunder. .
:FEDERAL COURTS-STATE. COURT DECISION-EFFECT.
The decision of the highest court of a state construing a state statute. and declaring that an acknowledgment by a married woman precisely similar,- except names and dates, to the one in question, was in substantial compliance therewith, and valid, is binding on the federal courts sitting in such state.
Appeal from the Oircuit Court of the United States for the Northern Division of the District of Idaho. Edgar 0 .. Steele, ·for appellants. J. H. Forney, for appellee. Before GILBERT, ROSS, and MORROW, Oircuit Judges. ROSS, Oircuit Judge. The appellants, Franklin M. Berry and M. A. Berry, his wife. were defendants in the court below to a suit for the foreclosure of a mortgage. A decree of foreclosure and sale having been rendered against them (89 Fed. 408), they bring the case here by appeal, The mortgaged property is described as lot No.2, and the S. E.! of the N. E. 1 and the N. W. 1 of the S. E. i of section 6, in township 41 N., of range 5 W. of Boise meridiall' situated in the county of Latah, state .of Idaho, and containing 120.19 acres. The evidence in the case shows that, by mistake of the scrivener, the S. E. instead of the 8. W. i of the X Eo 1 of the section of land mentioned was described in the mortgage. Both' the 8. E. and the 8. W. 1 of the N. E. 1 of section 6 were, however, at the time of the execution of the mortgage, the common property of the appellants. One of the two points made on their behalf in support of the appeal is that it was error in the court below to decree a foreclosure and sale of the 40 acres of land inserted in the mortgage by mistake. The evidence shows that long prior to the commencement of this suit the mistake was discovered by the appellants, and that subsequent to such discovery they mortgaged to another party the 40-acre tract which it was intended by the respective parties to include in the present mortgage, and' in lieu of which the 8. E. t of the N. E. t of section 6 was inserted. This fact probably accounts for the fact that at no time-not even in the present suit-has there been any effort on the part of the appellants to reform the mortgage. This latter fact is a conclusive answer to the first point made on their behalf. . The only other point made on behalf of the appellants is that the mortgage is ineffectual, as against Mrs. Berry, because of the eel'-
BERRY V. NORTHWESTERN &: P. HYPOTHEEK BANK.
tificate of acknowledgment thereto attached. It is claimed that this certificate fails to conform to the Idaho statute in respect to the acknowledgment of such instruments by marrid women. By section 2956 of the Revised Statutes of Idaho, it is provided:
"That the acknowledgment of a married woman to an instrument purport· i.ng to be executed by her must not be taken unless she is made acquainted by the officer with the contents of the instrument, on an examination without the hearjng of her husband; nor certified to unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution."
Section 2960 of the same statute provides that:
"The certificate of acknowledgment by a married woman must be substan· tially in the following form: "Territory of Idaho, County of - - , sS.: " 'On this - - day of - - in the year of - - , before me, (here insert the name and quality of the officer,) personally appeared - - known to me (or proved to me on the oath of ---) to be the person whose name is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband, I made her acquainted with the contents of the instrument, and therenpon she acknowledged to me that she executed the same, and that she does not wish to retract such execution.' "
The certificate of the notary public attached to the mortgage in question is as follows:
"State of Washington, County of Whitman-ss.: "I, A. A. Kincaid, a notary public in and for said county and state, do hereby certify that on the 23d day of July, 1890, personally appeared before me Franklin M. Berry and M. A. Berry, his wife, to me known to be the individ· uals described in, and who executed, the within instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. And I further certify that I did fully apprise the said :\1. A. Berry, wife of the said Franklin :\1. Berry, of the contents of said instrument, and of her rights thereto, and the effects of signing the same, and that she did then freely and voluntarily, separate and apart from her said husband, sign and acknowledge the said instrument. Given under my hand and official seal this 23d'day of July, 1890. "[No P. Wash.] A. A. Kincaid, "Notary Public Residing at Palouse City."
A precisely similar certificate, except as to the names and dates, was held by the supreme court of Idaho to conform to the requirements of the Idaho statute, in the case of Bank v. Rauch, 51 Pac. 764; the court saying:
"The intent and purport of the statute are to protect the rights of a married woman from the dictation or domination of the marital companion. The end sought by the law is not to enable married women, either at the suggestion or dictation of their husbands, to perpetrate a fraud, by seeking to avoid, upon a mere technicality, wha.t was, at the time it was made, a fair and' honest transaction, the benefits (}f which have been received and enjoyed, either directly (}r indirectly, by the party seeking to avoid it. The statute does not require a literal, but a substantial, compliance therewith. If the certificate shows the acknowledgment to have been the free and voluntary act of the wife, uninfluenced by fear of, or duress by, her husband, and that at the time of making the acknowledgment she was fully advised of the character of tbe instrument she was executing, and the effect of her act, and such acknowledgment was separate and apart, and without the hearing of her husband, we think the exigency of the law is fully met."
That ruling was ,adhered to and affirmed by, the same ,court in the subsequent cases :of Christensen v. Hollingswo-rth, 53 ,Pac. '211, and Jaeckel v"Pease, Id. 399. That the,constrnction,:of the state statute of Idaho ,by the ,highest l oourt of 'that state.inrespect to a questi()n of this: sort isbinding,up<Jn,thefederal cqurts, is thoroughly well settled. Therefore, withoute:Kpresliling or iDtimatingany views of our own in respect to the [email protected]
(Circuit Court of Appeals,' Ninth Circuit., !<'ebruary 6, 1899.)
Though not a party to a sult:agalnst the bank In a state court, the receiver''Ofa 'national bank rli'l1.yappear In,· that court, and contest the validlty of the 'JUdgment. ,,' , A jUdgment was fraudulently, obtained In a state, court against a na, tional bahk without maklng l , a 'receiver thereof a party. '.rhe receiver learned of It a few da;ys later, but took no actlon'iIi'the state court to contest the judgment fl;)r,nearly year!}, the t1Dte explriJJ.g .in the meanwhile within which he might mO,ve that court to vacate the Judgment for fratld, and his application therein was denied. HeU, tliat he was guilty of laches, and llqulty would not'lmnul the' judgment. "
P ARTIES-'VACATJON- RECEIVERS:'
Appeal from the Circuit Court',of the United States for the Northern the, District of Washington. Frederick 'Bausman, for appellant. Before GILBERT, BOSS,and MQRRbW;Circuit Judges. ROSS, Circuit Judge. This was a suit in equity brought in the United States circuit court for the Northern division of the district of Washington, on the22d day of April, 1896, by the receiver of the insolvent Merchants' National Bank of Seattle,to obtain a decree declaring void a judgment rendered by the superior court of the state of "Washington for the county of King iuan action brought in that court by David B. Denton against the insolvent bank, after the appointment and qualification of the receiver, and after the latter had taken possession of the bank and its property. To that action the receiver was not made a party, and knew nothing of the suit until after the renditi(}n of the judgment, which was for the sum of $29,716. That action was brought by Denton, as the assignee of a claim held by one Angus Mackintosh, who was the president of the insolvent bank, and the summons in the action was served upon one . William T. Wickware, who was its cashier. Wickware put the summ()lls in a pigeonhole, .claims to have mentioned the matter to Mackintosh and to one Meflerve, who had employment under the receiver, and paid no ·further attentioq, thereto. There wasa,ccordingly no appearance to the action on the part of the bank or of the