Kocourek v. Marak

54 Tex. 201 | Tex. | 1881

Bornee, Associate Justice.

This case was dismissed on demurrer to the petition, and raises the two questions, whether the allegation presented such legal duress on the part of the husband, as, on behalf of the wife, should avoid the deed to the homestead; and if so, was the purchaser charged with notice of it.

The general doctrine of this court upon these questions is, that the certificate of the officer to the separate acknowledgment of the wife to a deed of conveyance, is conclusive of the facts therein stated, except in cases of fraud, mistake or imposition; and that the rights of a third party will not be affected by such fraud, mistake or imposition, unless they participated therein or had notice thereof. Wiley v. Prince, 21 Tex., 640; Pool v. Chase, 46 Tex., 210; Williams v. Pouns, 48 Tex., 146.

The same strictness, as to what would constitute legal duress on the part of the husband, does not apply against the wife by reason of their peculiar relationship, as in ordinary cases. Wiley v. Prince, 21 Tex., 641.

In the above case of Wiley v. Prince, it was decided that threats by the husband to burn down the house and carry away the children, were sufficient to avoid the conveyance by the wife.

To the same effect is the ease of Central Bank v. Copeland, 18 Md., 319.

In Tapley v. Tapley, 10 Minn., 458, it was decided that an instruction was properly given, to the effect that, to avoid the deed of the wife, the threats of the husband need not be those of physical injury only, but threats of separation were sufficient, if the wife reasonably apprehended that they would be carried into execution.

It was the evident intention of the legislature, as shown by the express language of the statute, that the conveyance of the wife to be binding must have been willingly executed. R. S., art. 4310.

Tested by the above cases, the allegations in the petition were sufficient, if sustained by competent testimony, to show such moral coercion over the wife and “imprisonment of her mind;” and such notice on the part of the' purchaser, Marak, as should avoid her deed. Louden v. Blythe, 21 Penn. St., 25.

The demurrer was improperly sustained.

Reversed and remanded.

[Opinion delivered January 11, 1881.]