It is insisted in support of the application for rehearing that in attaining the conclusion to affirm the decree proper effect could not have been given to the phase of the respondents' evidence tending to show that the mortgage in question was re-executed in Talladega county, acknowledged before the notary who was authorized to take and certify acknowledgments in Talladega county. This phase of respondents' evidence was neither overlooked nor its probative effect at all minimized. Our conclusion on the dominant issue of fact comprehended due consideration of that phase of the evidence. The mortgage bears but one acknowledgment. No effort at re-acknowledgment (Hess v. Hodges, 78 So. 85, 86,1 and cases there cited) appears to have been made. The certificate shown with the mortgage was dated November 12, 1914. The whole evidence proves that on November 12, 1914, Beaty and his wife were at their home in Coosa county, not in Talladega county, and that on that date, the true date, the notary took the only acknowledgment disclosed by the instrument as reproduced in the record before this court. Beaty and his wife testified that there was no effort at acknowledgment, or a reacknowledgment of the mortgage, in Talladega county, either before or after the amount of the mortgage was changed from $1,260 to $4,500. Of course, if the mortgage had been at any time effectually acknowledged in Talladega county — wherein the notary had jurisdiction to take and certify acknowledgments — the instrument would have been effective; but the conclusion of fact the whole evidence seems to us to require is that there was but one effort to take and certify an acknowledgment of this mortgage, and that was in Coosa county, not Talladega county.
The application is overruled.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
1 Ante, p. 309.