Wester v. Hurt

| Tenn. | Sep 15, 1910

Mr. Justice Lansden

delivered the opinion of the Court.

This case is before us upon a certiorari to a decree of the court of civil appeals, reversing the decree of the chancellor, dismissing the complainants’ bill.

The facts necessary to be stated are that Mrs. Wes-ter is the owner of a small tract of land in Roane county, and she joined her husband in a deed of trust for the purpose of securing a debt which her son owed to the defendant Hurt, and after signing the deed it was taken to the notary public, who called Mrs. Wes-ter over the telephone and attempted to take her privy examination by a conversation in this way. The court of civil appeals held that this acknowledgment was invalid, and granted to Mrs. Wester the relief she prayed by canceling the deed of trust.

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, sec. 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 the bargain- or; (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.

When a deed has a certificate attached to it, containing all of the material parts prescribed by the statute, and signed by the proper officer, it establishes the probate of the deed as a matter of.judicial determination, and this probate cannot be attacked by extrinsic evidence showing any mere irregularity. It can only be overthrown by proof of fraud or duress, and by a casual connection of the grantee with the fraud.

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 understanding^, 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 language employed by the legislature in prescribing the form of the certificate made by the officer taking the examination precludes a construction which would uphold an acknowledgment taken in this way, and therefore it was clearly not within the legislative intent that this should be done.

We are of opinion, therefore, that this attempted privy examination of Mrs. Wester 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. The decree of the court of civil appeals, reversing the decree of the chancellor, is therefore affirmed.