138 Tenn. 357 | Tenn. | 1917
delivered the opinion of the Court.
This bill was filed by Mrs. Roach to enjoin the defendant, as trustee, from selling a house and lot in La-
The defendant Francisco was an accommodation in-dorser for Eoach, the husband, and in default of payment by his principal, he has paid the note, with interest, to the National Bank of La Follette, the payee therein.
Section 3753 of Shannon’s Code provides as follows :
“Every deed or other instrument of writing executed by husband and wife and acknowledged or proved*360 and registered in the manner hereinafter prescribed, shall bind them, their heirs or assigns. The officer or conrt, before whom the execution of such deed or instrument is acknowledged or proved, shall examine the wife privily and apart from her husband, touching her voluntary execution of the same, and her knowledge of its contents and effect; and if she acknowledges or states that she executed the same freely and voluntarily, and without any compulsion on the part of her husband, and the clerk or other officer is satisfied that she fully understands the same, he shall, in addition to the certificate of probate or acknowledgment above prescribed, also put on the back of tne deed, or annex to it, the following certificate [setting out the form of the certificate required].”
In Wester v. Hurt, 123 Tenn., 509, 130 S. W., 842, 30 L. R. A. (N. S.), 358, Ann. Cas., 1912C, 329, this section of the Code was under construction, and we held that the privy examination of a married woman could not be taken over the telephone. .In that case it was said:
‘ ‘ The deed of a married woman living with her husband, conveying her general estate, is void without her privy examination. The form of this examination is prescribed by statute (Shannon’s Code, section 3753), and every material part of this form is necessary to make the probate of the deed valid upon its face. The action of the officer taking the acknowledgment is a judicial one, and establishes by judicial force: (1) That there was a personal interview between him and*361 the bargainor; (2) that this interview was private and apart from the husband; and (3) that the execution of the deed was confessed to have been made freely, voluntarily, and understandingly, and without compulsion or constraint from her husband, for the purposes therein contained. . . .
These conclusions are abundantly established by all of our authorities. It is clear that if the officer taking the privy examination of the married woman does not have a personal interview with her, and does not propound the required questions to her while in her presence, he cannot determine judicially whether the deed has been executed in the manner and under the conditions that the law requires in order to make a valid conveyance of a married woman’s estate. This is manifest from the language of the statute itself. The officer is to determine as a matter of judicial judgment that she did execute the instrument freely, voluntarily, and understandingly, and without compulsion or constraint from her husband; and this he cannot do out of her presence, because her appearance, manner and demeanor may become more potent factors in ascertaining the truth of this than mere formal answers to questions. ’ ’
The conclusion of the court in the case was that examination of .a married woman under such circumstances ‘ ‘was a mere empty form, unauthorized by the statute, and the certificate made by the officer, although it contained the proper words, does not establish the facts certified to.” Such a conculsion was inevitable
We know as a matter of history that the legislature did not contemplate that this solemn act would he done by telephone for the reason that there were no telephones when the statute was enacted in 1715, 1813, 1833, and we cannot construe such an acknowledgment to fall within it because the words employed by the legislature forbid such a construction.
What we have said has been upon the assumption that the proof shows that the acknowledgment was taken over the 'telephone. The only direct proof on the subject is the testimony of Mrs. Roach. She is positive in her statement that such was the fact, and she was not cross-examined or otherwise contradicted in any way. The notary, it is shown, has absconded, and his whereabouts is unknown. It is shown by stipula-,
There are two questions made upon this testimony: First, it is said that the testimony itself is inadmissible to contradict the certificate of the notary; and, second, it is said that the unsupported testimony of the defrauded wife is insufficient to overturn his certificate.
Parol testimony has been received in many cases for the purpose of invalidating the officer’s certificate by contradicting the words contained in it. Shields v. Netherland, 5 Lea, 193; Edwards v. Boyd, 9 Lea, 204; Grotenhemper v. Carver, 9 Lea, 280; Ronner v. Welckher, 99 Tenn. (15 Pick.), 627, 42 S. W., 439; Cason v. Cason, 116 Tenn. (8 Cates), 195, 93 S. W., 89.
In this ease parol evidence is offered to show that the privy examination was not taken either in law or in fact. When it appears that the officer did not make the privy examination, or that he was not in the presence of the married woman, his power to act is at an
By the very terms of the statute, it is only acknowledgments taken in the manner prescribed thereby that are binding upon the makers, and it should be obvious that parol evidence is admissible to show that the statute has not been complied with. If it were not so, the statute could be flagrantly disregarded, wives would be bound without warrant in law, and even forgeries would be unimpeachable, and landowners would be without remedy, although they never sold nor did they receive anything of value.
It is unwise to lay down a fixed rule to determine the weight of evidence required to overturn the officer’s certificate. The ascertainment of truth is .the purpose of all judicial inquiry, and whenever the court. is satisfied that the truth has been reached, it would be folly to refuse to accept it because of some arbitrary rule respecting the weight of evidence. When it is sought to impeach the certificate upon the unsupported testimony of the defrauded wife, or upon the unsupported testimony of the wife and. husband, such testimony should and will be closely scrutinized for the purpose of determining its truth; and ordinarily, such testimony, after the lapse of a long period of years, would be insufficient. But when the defrauded wife acts promptly, and there is no suspicion
It is next said that it was not necessary to have Mrs. Roach’s privy examination in order to make her deed valid, and binding. It is said that the Bejach’s
“Married women . . . are hereby fully emancipated from all disability on account of coverture, and the common law was to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to mate contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to he married, shall have the same capacity to acquire, hold,, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to mate any contracts in reference to it, and to hind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.”
This enactment cannot he construed as dispensing with the necessity of a married woman’s privy examination in alienating her homestead, although the language employed by the legislature may seem to be broad enough to do so. Section 11 of article 11 of the Constitution provides as follows:
“A homestead in the possession of each head of a family and the improvements thereon, to the value, in all of one thousand dollars shall be exempt from sale under legal process during the life of such head*367 of a family, to innre to the benefit of the widow, and shall he exempt during the minority of their children occupying the same. Nor shall said property he alienated without the joint consent of husband and wife, when that relation exists.”
The privy examination is part of the execution of the deed. It is the wife’s examination, and not her signature, which gives it validity. Montgomery v. Hobson, Meigs, 437; Norment v. Wilson, 5 Humph., 310; Ins. Co. v. Waler, 116 Tenn. (8 Cates), 11, 95 S. W., 811, 115 Am. St. Rep., 763, 7 Ann. Cas., 1078; Kobbe v. Land Co., 117 Tenn. (9 Cates), 320, 98 S. W., 175; Taylor v. Swafford, 122 Tenn. (14 Cates), 303, 123 S. W., 350, 25 L. R. A. (N. S.), 442.
A construction of the Married Woman’s Act which would dispense with privy examination would make the act violate this section of the constitution, as often construed by this court, and that, of course, we cannot give unless we are compelled to do so by the very words employed by the legislature. In re Bowers, 137 Tenn., 189, 194 S. W., 1093. Therefore we hold that the “disability on account of coveture” contemplated by the legislature was only such disability as was cast upon married women either by the common law or by statute. It is beyond the power of the legislature to abrogate disabilities contained in the Constitution.
It has been uniformly held by this court that a married woman can convey her homestead only by the precise means provided by the Constitution and stat-
As stated above, counsel agreed that the defendants might treat their answer as a cross-bill and pray for a sale of the house and lot subject to the homestead of Mrs. Roach. This is clearly the defendant Francisco’s right, and a decree will be entered here accordingly. If there is any question as to the value of the homestead being more than $1,000, the case may be remanded for the purpose of having homestead laid oft to Mrs. Roach.
It results that the decree of the court of civil appeals is reversed, and a decree will be entered here in accordance with this opinion.