5 Mo. App. 101 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is a petition in the nature of a bill in equity, against the beneficiary and trustee in a deed of trust which purports to convey the separate real property of a married woman, the suit being brought by that married woman to cancel the deed of trust, on the ground that though her acknowledgment appears by the certificate to have been duly taken, that acknowledgment was in fact never properly or legally made. The bill states that the appellant, after her marriage with John Bohan, who was a defendant below, became, by inheritance, the owner of a valuable piece of property in the city of St. Louis, which real estate is known as the Fourteenth and Market Street property, and yields large rents; that her husband, a man of dissipated habits and embarrassed circumstances, became anxious to obtain a loan of $7,000, in the autumn of 1872, with which to meet his obligations; that at this time he owned a piece of unimproved property known as the Benton Street property; that he was negotiating with Casey, the respondent, who afterwards became the beneficiary in the deed of trust, for
The bill states that she was led to believe she had no-legal remedy, until shortly before the present suit was-brought; that the mortgage had been recorded before she-saw the notary; reiterates, in different ways, the statement that she was in total ignorance of the contents of the deed when she signed it; but admits that she supposed it to be, from what her husband had told her, a deed given to the-respondent Casey to secure a loan for $7,000 made to her husband, for a period, according to her impression, of five years. The bill further states'that the trustee, under the-direction of Casey, has, under the power, proceeded to advertise the property for sale; and asks that the sale maybe enjoined, the deed of trust cancelled as a cloud upon the title, etc.
A temporary injunction was granted, and an answer after-wards filed admitting the execution of the deed of trust, but denying, substantially, the allegations of the bill. Upon a motion to dissolve, the whole case was heard, and a decree-rendered dismissing the bill.
The principles by which this case must be governed have-been laid down by the Supreme Court of this State in construing the statute concerning the acknowledgments of married women to conveyances of their separate real property. Since the decisions in McDaniel v. Priest, 12 Mo. 545, and Chauvin v. Wagner, 18 Mo. 531, were rendered,, the Legislature has seen fit to modify the statute, and to-dispense with certain of the formalities then required. Among other alterations made, a notary-public or justice of' the peace of the county in which the land lies may now take an acknowledgment, which then could have been taken, only upon appearance of the wife before a court of record. Rev. Stat. 1825, p. 220, sec. 12; Gen. Stat. 1865, p. 444,
The present case can be no stronger than it is made by
In regard to the property described, it cannot be reasonably doubted, upon the testimony, that the notary, at the time he took the acknowledgment, said to the appellant, and in her hearing, words to the effect that the deed embraced the Fourteenth and Market Street property. Not only does-he so state, but the sister of the appellant, who was present when the acknowledgment of the wife was taken, says,, speaking of what the notary said to the appellant: “ I think the word I heard was, ‘ Do you understand this is the Fourteenth Street property ? ’ ” This witness says her effort was not to pay attention, as she did not wish to overhear the-conversation. Yet she heard the notary put the question just quoted, and thinks she heard her sister say “Yes,” in reply. But, still further, the appellant herself says that the-notary may have said “ Fourteenth Street property.” She-says at times to the contrary, but appears unwilling to adhere to such contradiction; and, escaping from this point,, dwells on her failure to hear or understand the statements. Yet, on direct examination, she says that if the notary said the deed was for the Fourteenth Street property she never heard him say so, and adds : “ If he said it, it has escaped
The officer’s certificate here complies with the law. The attempt is to go behind the certificate, and to show that, in spite of its statements, the statute has not been complied with, and that the property did not pass. Though fraud is spoken of, nothing in the nature of fraud is shown. The notary did not know there was such property as the Benton Street property, and by direction of the husband, drew up the deed of trust describing the Fourteenth and Market Street property. The testimony tends to show that the husband first signed and acknowledged the deed ; but, independently of this, he certainly had it prepared, and directed the notary to draw the deed of trust on the Fourteenth and Market Street property. He called the special attention of the notary to this fact by remarking that he was a little afraid his wife would not sign the instrument. Certainly, from these facts the reasonable inference is that when the husband told his wife that the notary would call, he then told her, or had previously told her, that the deed of trust was to be on the Fourteenth and Market Street property. Upon the supposition that the wife was to be deceived and defrauded, with the connivance and assistance of the notary, the hypothesis that the wife was told that the encumbrance was to be upon the Benton Street property is reasonable. But the notary acted in perfectly good faith, and with an evident desire to do his duty, as is shown, not only by his own testimony, but by that of the appellant’s sister, who accidentally ■overheard part of the conversation, and who was called as a witness on the appellant’s behalf. The husband must have anticipated that the notary would do as he did do; would ■explain to the appellant that she was encumbering herFonrteenth and Market Street property ; to which he had called the notary’s special attention by pointing out the reluctance •of the wife to mortgage it. How, then, can it be consistently
It is complained that the notary did not ask the wife as to- “ undue influence,” and that to have asked her as to “ compulsion ” is not enough. But the notary asked her whether she executed the deed of her own free will, or whether her husband compelled her to do it. To the former question she replied, “ Yes ; ” to the latter, “ No.” The words “ undue influence ” do not appear to have been used; but-it was not necessary to use the very words. It is, indeed,, much better, as a matter of precaution, that the officer should read the entire instrument to the woman, and accompany the reading with explanations, and that the words of the statute should be used in asking the questions ; but the law does not absolutely require this, and to hold that it-does, now, would be to disturb many titles. When the officer makes his certificate in conformity to law, and that certificate is attacked by the married woman, as here, the question is whether that which took place upon the privy examination justified the officer in making the certificate. The burden upon the appellants is, not to put the matter in doubt, for witnesses in such cases can hardly be expected to give the exact expressions used long previously, but by clear and convincing evidence-to satisfy the court that the officer was not justified in certifying as he did, and that he certified to what was false. Such is not the evidence in this-case ; on the contrary, to annul this acknowledgment would,, in effect, be to set aside a deed of a married woman on the ground that, having once made it and acknowledged it in the manner required by law, she had repented of her act. and wished to exercise a power of revocation. Even where the testimony of the married woman was clearer, more consistent, and more positive than it is here, a court of
Upon the assessment of damages upon the injunction-bond, the court below instructed the jury that the defendants were entitled to a reasonable attorney’s fee for all the-services rendered on the motion to dissolve, and that such, allowance could not be reduced or increased by the fact. that upon the motion to dissolve the case was heard upon its merits. This was correct. Buford v. Packet Co., 3 Mo. App. 159. There was no error in giving or refusing instructions.
The judgment of the court below is affirmed.