38 Ark. 377 | Ark. | 1882
OPINION.
The court below decreed Mrs. Gossett. dower in the land embraced in the deed of trust of first of May, 1876, executed by her deceased husband, sold by the trustee, and purchased by appellant, Henry W. Meyer, on the ground that though she signed the deed she did not acknowedge it in the manner prescribed by the Statute. It is submitted here for her, that she did not join her husband in the deed, and therefore her relinquishment of dower, if properly acknowledged, was invalid, and the decree, on that ground right.
I. To make a valid relinquishment of dower, by the wife, in the real estate of the husband, she must join him in the deed of conveyance, and acknowledge it in the manner prescribed by the Statute. Gantt’s Dig., sec. 839.
If she does not join him in the deed the acknowledgment is of no validity. Nor if she join him in the deed, is there a valid relinquishment of dower without a proper acknowledgment of its execution by her. Both are requisite to complete the conveyance on her part. Stidham and wife v. Matthews, 29 Ark., 659; Witter v. Biscoe et al, 13 Ib., 423; McDaniel v. Grace, 15 Ib., 465.
The name of Mrs. Gossett is not mentioned in the commencement of the deed as one of the parties to it, but the deed closes with the following paragraph : “And I, Elizabeth F. Gossett, wife of said John Gossett, for the consideration aforesaid, do hereby release and relinquish unto said Robert B. Tunstall, trustee, all my right or claim to dower in and to said lands.” Then follow the signatures and seals of John Gossett and Elizabeth F. Gossett. It is true that the signature of the husband appears above the closing paragraph of the deed, as well as below it, but it is probable that he signed above by inadvertence, and again subscribed his name at the conclusion of the deed. In the bill and in her deposition, Mrs. Gossett admits that she and her husband signed the deed on the day it bears date ; and it was not delivered to Meyer, the beneficiary, until after the certificate of acknowledgment was appended to it by the magistrate, which bears date tenth of May, 1876, and on the next day it was filed in the recorder’s office for registration. On the face of the deed, therefore, it sufficiently appears that she joined with her husband in its execution, and there is nothing substantial in the objection submitted as above.
II. The deed of trust appears by the magistrate’s certificate to have been acknowledged by both husband and wife in the manner prescribed by the Statute. When delivered by the husband to Meyer, the beneficiary, for a valuable consideration, it appears to have been signed and properly acknowledged by husband and wife, and it was shown in evidence that neither Meyer nor the trustee named in it, was present when it was subscribed or when it was acknowledged.
In Holt v. Moore, 37 Ark., 148, Justice Eajiin said: “It is certainly true that the acknowledgment of a married woman to her deed, duly certified, although prima facie evidence, is not conclusive against her, either as to the fact that the acknowledgment was made as certified, or that the facts which she acknowledged were themselves true, unless it be against a vendee for a valuable consideration, who was himself ignorant of the falsity of the facts and'had no participation in the fraud. As to him, she must be held estopped where the acknowledgment was actually made, or there would be no safety in conveyances. A false certificate of acknowledgment, where none was made would present a different question. (See cases commented upon, 1 Bish. on Married Women, sec. 591.)”
In the bill, Mrs. Grosett alleges, in effect, that she did not acknowledge the deed. This was denied on information and belief in the answer of Meyer, who, it appears, accepted the deed on faith of the magistrate’s certificate. The deed, appearing by the certificate appended to it to have been properly aclnxowledged, had beexx x’ogistered, axxd if it was peinxissible to show that the certificate of ackxxowledgment was false, a mere fabrication of the officer, and that no acknowledgment was hi fact, made by the complainant, the onus probandi was upon her. Watson v. Billings, ante. 278.
Mrs. Gossett admits in her deposition that she and her husband signed the deed at home, and that she afterwards went with him to the house of James B. Gunter, the justice peaC6) wj10 ma(je the certificate of acknowledgment, for the purpose of acknowledging the deed, but states that he asked her no questions ; that he did not examine her apart from her husband ; that she did not acknowledge the deed, and that his certificate was false. She admits that neither Meyer nor the trustee was present when the deed was signed, or at the house of the justice when the certificate was made, and that she had no communication with them. There is no evidence that either of them had any knowledge, at the time the deed was accepted, that there was any fault in its acknowledgment on the part of Mrs. Gossett.
Gunter, the justice, deposed, in substance, that Gossett and wife came to his house, each riding a separate hoi’se, on the day his certificate bears date, and stopped at the gate in front, and he went out to them. Gossett handed him the deed, saying it was ready for acknowledgment, and -acknowledged that he had signed it for the consideration and pui’pose therein mentioned. Then Gossett rode away and .left Mrs. Gossett at the gate, and he took her acknowledgment, and she acknowledged that she had signed the deed for the consideration and purposes thei'eiu set forth; and he then went into his house and made the certificate appended to the deed.
Harrington, another witness, deposed that he saw Gos-sett and wife at the gate, on their horses, six or eight feet .apart, that Gunter came out to where they were, remained íibout a minute, returned to the house leaving Gossett and wife at the gate, remained in the house about ten minutes, then returned to the gate where Gossett and wife were, and they rode off. He was not near enough to hear what was •said, nor did he see any papers pass between them.
The Chancellor did not find, upon all the evidence, that Mrs. Gossett did not acknowledge the deed at all, that the ■certificate of the justice was entirely false, a mere fabrication, but found as recited in the decree, that her acknowledgment was taken by the justice without making the privy ■examination in the absence of her husband, as required oy law.
It was held in Johnson v. Wallace, 53 Miss., 331, that where the wife never appeared before an officer to acknowledge the deed, but he falsely certified that she did, his act is wholly without authority of law, and void in toto. All must be subject to the risk of an occasional forgery by •officers authorized to take acknowledgments. But a deed having been signed by husband and wife, and she having appeared Before an officer competent to take her acknowledgment, and having acknowledged in some mannei;, and he having certified on the deed that she had acknowledged on a private examination separate and apart from her husband, and that she had executed the deed freely and voluntarily, without any fear, threats, or compulsion on the part of her husband, the truth of the certificate as to its statements •cannot be questioned as against a bona fide purchaser.
That case is similar to this, and the decision is in harmony with the rule as announced in Holt v. Moore, sup.
The rule seems to be very well settled that the official certificate of acknowledgment is conclusive of every fact appearing on the face of the certificate, and that evidence of what passed at the time of the acknowledgment is not admissible to impeach the certificate, except in eases of fraud or imposition in obtaining the acknowledgment, and where knowledge of it, or of some circumstance sufficient to-put him on enquiry, is brought home to the grantee.
III. The heirs at law of John Gossett, deceased, minors,, joined their mother in the bill, but no notice of them was. taken in the decree, nothing decreed to them, and they did not appeal.
After Meyer had purchased the lands embraced in the deed of trust of first of May, 1876, at a sale made by-the trustee, he contracted to re-sell and convey to JohnGossett, on terms and conditions specified, in the written contract, but Gossett died before any payment was made. What right his heirs may have to pay for the lands under that contract, and to have the rents appropriated in payment of the purchase money, and what right they may have to redeem the lands in Nevada, known as the Beard place, mentioned in the bill, are not questions presented on this-appeal.
The court below erred in decreeing to Mrs, Gossett dower in the lands embraced in the deed of trust of May 1st, 1876, and in the rents thereof, on the ground that she had. not relinquished her dower right therein, and the decree must be reversed and the bill dismissed here, without, prejudice to the heirs at law of John Gossett.