— The mortgage, for the foreclosure of which the bill is filed, is assailed, as an operative conveyance of the homestead, on several grounds, touching the official certificate of acknowledgment. The name of the wife need not appear in the body of the conveyance, for the purpose of alienating the homestead. The statute does not require her to unite in a conveyance of the title. Her voluntary assent and signature, sworn and certified to in the *317prescribed form and mode, are the statutory requisitions. Her name need not appear otherwise than by her signature to the conveyance. — Hood v. Powell, 73 Ala. 171. And by the settled construction of the statute, the clerk of the judge of probate may take the acknowledgment, and make the necessary certificate, in the name of the judge.— Halso v. Seawright, 65 Ala. 431.
The official certificate states, that the wife was examined separate and apart from the husband, and acknowledged that she signed the mortgage of her own free will and accord, and without fear, constraint, or threats of her husband. The certificate is in pfroper and sufficient form, substantially complying with the statute. It was proposed, however, to show its falsity in this respect, without allegation or proof of fraud or imposition ; and the evidence tends to show that, in fact, there was no privy examination of the wife. In Miller v. Marx, 55 Ala. 322, where the question related to the volutary signature and assent of the wife, it was ruled, that the official certificate, when substantially conforming to the statute, is conclusive, in the absence of impeachment by proof of fraud or imposition practiced towards her — by some fraudulent combination between the parties interested, and the officer taking the acknowledgment. And in Downing v. Blair, 75 Ala. 216, where the effort was to impeach the official certificate by parol evidence showing that the wife was not examined separate and apart from her husband, the same ruling was applied, and the evidence held inadmissible.' In Barnett v. Proskauer, 62 Ala. 486, it was said, that the official certificate, conforming substantially to the statute, is presumed to be true, but may be contradicted, and that parol evidence is admissible to falsify it, when the true issue is limited to the fact of execution. The principle of the decision is, that as it can be shown that the subscribing witnesses have testified falsely, or are mistaken, or that the witnesses called to prove the handwriting of the grantor have no knowledge thereof, or erred in supposing it to be genuine; so also the certificate of acknowledgment or probate, which takes the place of proof by the subscribing witnesses, or of the handwriting of the grantor, may be disproved as to the execution of the conveyance.
It is now insisted, that the decisions cited, sustaining the conclusive character of the certificate, are erroneous, and should be overruled. The position is, that as the officer, in taking and certifying the acknowledgment of conveyances, acts in a ministerial capacity, as held in Halso v. Seawright, supra, parol evidence should be admitted to falsify the certificate in any and every respect, on the authority of Russell v. *318State, 77 Ala. 89. In the latter case, we held that, when the official act is ministerial, evidence is admissible to show ioo/rd of authority. The licensee knew that he had procured the license by evasion, and in violation of law, without having made the statutory affidavit, which was requisite to authority to grant the license; and the rights of third persons were not involved. The proposition here-is, not to show want of authority to make the certificate, but, conceding the authority, to show that the certificate's false in respect to the examination of the wife. The rule settled by the decisions is, that as to all matters, except the execution of the conveyance, the certificate, when -substantially conforming to the statute, is conclusive, unless impeached by allegation and clear proof of fraud or imposition practiced on the wife, in which the officer or grantee participated. — Moog v. Strang, 69 Ala. 98. Whatever may be the capacity in which the officer acts, the rule as established may now be regarded as a rule of property, which it would be unwise and unsafe to disturb.
It appears from the original mortgage, which, by order of the chancellor, has been sent for our inspection, that the name of “S. E. Shelton” is signed thereto. The officer certifies that S. E. Shelton, whose name is signed to the mortgage, and who acknowledged its execution, is known to him to be the wife of the mortgagor. Its execution by her is not controverted. Though her real name may be Lucinda E. Shelton, the certificate sufficiently identifies the wife of the mortgagor as the person making the acknowledgment, and who affixed her signature to the mortgage. A person, executing a conveyance by a certain name, will not be permitted to take advantage of the fact that it, is not his true name.
The averments of the cross-bill are not sufficiently definite and precise, and the proof is not sufficiently clear and convincing, to support and enforce a resulting trust in favor of the wife. There is neither averment nor proof, how much of the purchase-money of the land was paid out of her distributive share of her father’s estate, or from what source or whom the balance was derived, or how or when paid. Tilford v. Torrey, 53 Ala. 120; Mo. Life Ins. Co. v. Randall, 71 Ala. 220; Bailey v. Irwin, 73 Ala. 505; McCall v. Rogers, 77 Ala. 349.
An agreement to pay reasonable attorney’s fees, in the event the mortgagee has to resort to a suit to foreclose the mortgage, or to collect the money, in addition to legal interest, is not usurious. — Munter v. Linn, 61 Ala. 492; 1 Jones on Mort., § 635 ; 2 Ib. ,§ 1606.
Affirmed.