This appeal involves only the validity of the mortgages upon the homestead tract of 33 1/2 acres, and counsel for appellees in commendable candor stated in argument upon the submission of this cause that they desired a determination of the case upon its merits without regard to any question of procedure.
The complainant's right, therefore, to maintain the bill as to the homestead tract is not here presented (Seaman v. Nolen,68 Ala. 463; Grider v. Am. Freehold L. M. Co., 99 Ala. 281,12 So. 775, 42 Am. St. Rep. 58; Cowan v. So. Ry. Co.,118 Ala. 554, 23 So. 754), and we proceed to a consideration of the question of fact here involved.
The wife denies the execution of any of these mortgages, or that she ever appeared before any officer for an acknowledgment thereof. The husband admits that he forged her name to these instruments, and likewise forged the name of the officer to the acknowledgments; and the evidence of the two experts as to the signature of the wife appears to balance one against the other.
The witnesses were examined orally, except the husband whose depositions were taken on account of his illness. And appellees confidently rely upon an affirmance of the decree upon the well-recognized rule that the judgment of the court below, where the witnesses have been examined orally, will not be disturbed unless palpably erroneous.
We may pass the question as to the genuineness of the signature of the wife to these mortgages as unnecessary to determine, for we are persuaded that the holding of the court in Barnett v. Proskauer, 62 Ala. 486, upon the question of evidence sufficient to impeach the certificate of acknowledgment, is decisive of this appeal in favor of the appellant. The facts of the two cases are strikingly similar. Here, as there, the wife denies that she ever signed or appeared before any officer for the purpose of acknowledging her signature. In both cases she is corroborated by the evidence of her husband, who confessed to the forgery of her name, as well as the purported acknowledgment of the officer.
The bill gave full notice of these facts. Appellees offered no evidence to the contrary, and the cause was submitted for final decree upon the proof, which without conflict established the forgery of the acknowledgment. In the instant case it appears that the justice of the peace whose name appears to have been signed to the certificate of acknowledgment is dead; and it seems to have been assumed that the burden of proof further rested upon the appellant to offer proof as to the handwriting. The effect of the holding in the Barnett Case is that under these circumstances the burden shifted to the appellees, and that in the absence of further proof the certificate of acknowledgment had been sufficiently falsified. Upon this question of fact appellees offered no proof whatever. Counsel for appellees seek to differentiate the Barnett Case from this, but the differences pointed out do not affect the direct application of the holding upon the particular question here involved.
It therefore appears that the holding of the court below was the result of a misapplication of the rule as to the burden of proof; and when such is the case the rule, previously stated as to presumption in favor of the judgment of the court below, is without application. Murphree v. Hanson, 197 Ala. 246,72 So. 437.
We consider the homestead character of this tract at the time of the execution of these mortgages so well established by the proof as to require no discussion.
The conclusion is therefore reached that the trial court was in error in that portion of the decree holding valid the mortgage upon the homestead tract. That part of said decree will be reversed, and a decree will be here rendered declaring the mortgages thereon invalid. So much of the decree as relates to the 45-acre tract will, as matter of course, be affirmed. The appellees (the administrator of the estate of C. C. Cox excepted) will be taxed with the costs in this court and in the court below.
Affirmed in part, and in part reversed and rendered.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur. *Page 263