107 Tenn. 244 | Tenn. | 1901
This bill was filed by Mrs. Mary Dewey to set aside a conveyance of her separate estate, or, in the' alternative, to recover from the purchaser the purchase price. The Chancellor dismissed the bill, and complainant appealed.
It is alleged in the bill that, prior to May 30, 1890, complainant was the widow of one C. H. M. Smith, and, on that date, one Mary Schoonover devised all her real property to complainant, with the limitation that, upon her marriage, she should hold the devised property to her sole and separate use free from the debts, contracts, or control of her husband. Mrs. Schoonover devised to complainant Lot 4, Block 47, in Memphis, Tennessee. It is then alleged that, prior to the decease of Mrs. Schoon-over, she and complainant lived together and became acquainted with Dewey, who claimed to be a physi
It is further alleged that, on December 1, 1890, complainant entered into an ante-nuptial contract with Dewey, whereby he settled on her all her property, to her sole and separate use,, free from the contracts, liabilities, or control of said Dewey, with full power to her, • the said Mary, to dispose of it by will, deed, mortgage, oi" other conveyance, as a feme sole. The ante-nuptial contract was duly acknowledged and recorded.
The bill further recites that, on December 2, 1890, complainant intermarried with the said Charles B. Dewey. It is alleged that, soon after the marriage, Dewey became extravagant and wasted complainant’s money and means, and that in a short time Dewey induced complainant to execute a conveyance of her property to him promising to pay her therefor $3,000, and that she executed the deed to him on January 27, Í891, retaining a lien for $3,000. The deed recites that it is made “in consideration of the love and affection she bears her beloved husband, Charles B. Dewey.” It appears that the deed was executed on a printed blank containing these words, “A lien is hereby expressly retained on the above described property in favor of the said Mary Dewey, her heirs, representatives and assigns, to secure the deferred payments of the. purchase money, and should any of the future payments not be discharged when due, then the notes not then
It appears that the deed from Mary Dewey to her husband was duly acknowledged by complainant, with privy examination before H. Battenberg, a Notary Public for Shelby County, and was duly recorded February 2, 1891.
It is alleged that the omission of the purchase money, the name of the trustees, and the execution of the notes from the deed was the result of the fraud and contrivance of the said Charles B. Dewey. It is .then alleged that on March 6, 1891, complainant was induced, by the fraud and contrivance of her said husband, to. sign and acknowledge the execution of a deed to the defendant, Joseph Goodman, of the land devised to complainant by Mrs. Schoonover, upon the promise and understanding that complainant should recover, from the proceeds of such sale the sum of <$3,000, which her husband had agreed to give her
Complainant charges in her bill that the consideration expressed in the deed, of $5,000, was not received by her and her husband, and that she had never received any part thereof whatever. It is further alleged in the bill that, in the year 1894 or 1895, complainant’s husband, the said Charles B. Dewey, had abandoned her, and hado not since lived with her. It is further charged, viz., “that if complainant’s conveyance to her husband be valid that, when she executed the deed to Goodman she had a valid lien on the property for the purchase money, to wit, $3,000, and that the failure of Goodman to pay the lien debt to complainant in person was ne discharge of the lien, and that it is still a valid and subsisting lien against the land. (2) Complainant, charges that, if her deed to her husband was invalid and no lien was retained for purchase money, then her other deed is void for want of delivery by her.
The prayer of the bill is that complainant be allowed a decree for the purchase money under either of the said two deeds with a lien on the land, or that she recover the land in specie, with an account of any change in the property ‘ ‘ detracting or enhancing its value and the rent thereof.”
Defendant demurred to the bill assigning, among other causes, the following, to wit: It appears from the bill that complainant owned, as her separate estate, the land described therein, and by deed dated January 27, 1891, duly acknowledged by her with privy examination, in consideration of love and affection, conveyed said land to her husband, and that thereafter she and her husband by joint deed, which was also acknowledged by both of them, with like privy examination of complainant, conveyed the land to defendant for $5,000; but that there was a private understanding between complainant and her husband that the latter should pay her $3,000 out of the $5,000, which her husband did not do, upon
The demurrer was overruled.
The defendant, Goodman, then answered the bill, and avers he had at no time any business transaction, association or acquaintance with Dewey, except in the purchase of said land, and no knowledge of any fraud practiced by the said Dewey upon the complainant. Defendant avers he was introduced to complainant and her husband by a real estate agent, and that he paid $5,000 in cash for the property in the presence of both complainant and her husband at the time of the delivery of the deed. That immediately after the execution of the deed and the payment of the consideration defendant took possession of the land and that he has been in possession ever since. Defendant avers that the purchase money of $5,000 was paid over to Dewey in the presence of the complainant, and with her full knowledge and consent, and that she made no question as to the validity or propriety of such payment. Moreover, that her husband, the said Dewey, paid over to her at the time a part of the consideration. Defendant then relies upon a plea of innocent purchaser. He further shows that, after he had paid for the land, he expended $9,000, in improvements thereon, and that this money was expended with the knowledge of complainant, who .stood by and saw him expend the money without
Complainant afterward filed an amended bill, in which she charged that the Notary Public who took her acknowledgment of the deed executed' to her husband had no authority to take her privy examination because he was not- an officer designated and empowered by law to take such an acknowledgment. Complainant in this amended bill also attacks the authority of John E. Kelly, as Deputy County Court Clerk, to take the complainant’s privy examination in the deed executed by her, jointly with her husband, to the defendant Goodman.
This demurrer was also overruled. Proof was taken, and on the final hearing the Chancellor dismissed the bill, and complainant appealed.
The first assignment' of errors is that the deed from complainant to her husband, the said Charles B. Dewey, executed on January' 27, 1891, was void for want of authority in the Notary Public to take Mrs. Dewey’s acknowledgment and privy examination. The insistence is it should have been taken by a Chancellor, Circuit Judge or Clerk of the County Court. This assignment of error is based upon the authority of Huff v. Glenn, 17 Pickle, 112. The will of Mrs. Mary Shoonover, after devising the property to complainant, provided that ‘‘should she
In addition to the provision of the will, it appears that on December 1, 1890, complainant entered into an ante-nuptial contract with Dewey whereby he settled on her all her property ‘ ‘ to her sole and separate use, free from contracts, liabilities or control of said Dewey, with full power to her, said Mary, to dispose of it by will, deed, mortgage or other conveyance, as a feme sole. ” Under the terms of her ante-nuptial settlement, the wife could have conveyed her real estate without privy examination. Sherman v. Turpin, 7 Cold., 382; Peterson v. Richman, 9 Pickle, 71.
In the present case the privy examination of the wife was taken by a Notary Public and it is insisted that it should have been taken by a Chancellor, Circuit Judge, or Clerk of the County Court, as required by Sec. 2, Chap. 99, Acts of 1869-70. This contention is not well made. The authority of a Notary Public to take such privy examination was expressly conferred by Sec. 1, Chap. 71, of the Acts of 1870'. Under this Act Notaries Public have all the powers in respect to taking acknowledgments that are given by existing laws to County Court Clerks. Daly v. Hamilton Assn., 48 S. W. R., 117.
The second assignment of error is that if the validity of the deed from complainant to her husband
Thereafter the complainant, by joint deed with her husband, which she acknowledged with privy examination, conveyed the land to defendant Goodman.
Complainant herself admits she never spoke to Goodman before the deed was delivered to him, and never told him of the agreement between herself and husband that she was to get $3,000 of the purchase money, and she admits that, so far as she knew, Goodman was ignorant of any such agreement. The proof shows that the purchase money was paid by Goodman to Dewey in the presence of complainant and with her implied acquiescence and consent, and that she made no objection to anything that was done. There is no proof in the record whatever that defendant Goodman knew that complainant claimed a secret lien on this land for purchase money due from her husband, and complainant having joined in the conveyance to Goodman and having seen the purchase price paid to her husband without asserting any such claim is now estopped to make it as against defendant.
The Notary Public who took the acknowledgment and who had known the Complainant for some time testified- that she was entirely at herself when she acknowledged the deed. Complainants’ counsel admits in his brief the proof fails to show Complainant was non compos mentis at the time of the trade, but his claim is that she was a person of weak mind and was terrorized by her husband’s extraordinary feats in spiritualism.
The Notary testified that Mrs. Dewey had at a previous time ■ consulted him about the advisability of transfering her property to her husband. The witness commenced to speak in English when Mrs. Dewey interrupted him telling him not to speak in English that Waumeeka, her husband’s spirit, was listening 'and would communicate to him everything that might be said. The Notary advised Mrs. Dewey not to transfer the property to her husband, but it appears that she did not heed his advice. Complainant testified that her husband would get in a trance and remain in such state a whole hour at a time; that he professed to communicate with the
But while this principle would ' apply between husband and wife in a suit for rescission for fraud and undue influence, it can have no application in the suit of the wife against a third party who is
The decree of the Chancellor dismissing the bill is affirmed.