Mays v. Pryce
| Decision Date | 04 June 1888 |
| Citation | 8 S.W. 731,95 Mo. 603 |
| Parties | Mays, Appellant, v. Pryce et al |
| Court | Missouri Supreme Court |
Appeal from Lewis Circuit Court. -- Hon. B. E. Turner, Judge.
Reversed and remanded.
Blair & Marchand for appellant.
(1) The court improperly allowed witness Robert M. Wallace to testify against the facts to which he certified as notary public in his certificate of acknow-ledgment of the defendant Susan to the deed of trust given by defendants to Joseph J. Benson to secure the indebtedness of said Thomas Pryce to plaintiff on the town lots sued for, with other lands, against the objections of plaintiff. Such testimony is contrary to public policy. Stone v. Montgomery, 35 Miss. 83; Washburne v. Roesch, 13 Ill.App. 268. This court has repeatedly said that it will not allow an officer to contradict or overthrow his return. We can perceive no difference upon principle, between an officer's return made under oath and an officer's certificate made under oath. Boone County v. Lowery, 9 Mo. 23, 25; Hallowell v. Page, 24 Mo. 590; Delinger v Higgins, 26 Mo. 180; McDonald v. Lewright, 31 Mo. 29; Reeves v. Reeves, 33 Mo. 28; Stewart v Stringer, 41 Mo. 400; Jeffries v. Wright, 51 Mo. 215; Phillips v. Evans, 64 Mo. 17; Anthony v. Bartholow, 69 Mo. 186; Bank v. Suman, 79 Mo 527; Heath v. Railroad, 83 Mo. 617, 623. (2) The authorities are uniform in asserting that the certificate of acknowledgment cannot be overthrown and deed set aside upon the evidence of one witness testifying against the facts certified to therein, and where the officer has testified, the court holds that the evidence must be very clear, that the evidence of the wife alone is not sufficient; nor is the evidence of the wife and officer combined, after several years have elapsed, sufficient; nor is a preponderance of the evidence sufficient. Holmes v. Budd, 11 Iowa 186; Bohan v. Casey, 5 Mo.App. 101, 110; Herrick v. Musgrove, 67 Ia. 63; Young v. Duvall, 109 U.S. 573; Jett v. Rogers, 12 Bush (Ky.) 564; Johnson v. Wallace, 53 Miss. 331; Washburn v. Roesch, 13 Ill.App. 268; Riecke v. Westenhoff, 10 Mo.App. 358; Biggers v. Building Co., 9 Mo.App. 210. (3) The court improperly and illegally refused to allow plaintiff to introduce and read as evidence in the cause the deed of sheriff William S. Richardson to Thomas B. Jeffries, dated March 16, 1877, and filed for record, March 17, 1877, for the lots in suit, with the certificates and filing thereon. (4) The court improperly and illegally refused to allow plaintiff to introduce and read as evidence in the cause the quit-claim deed from Thomas B. Jeffries to said defendant Susan Pryce, dated March 20, 1877, and filed for record November 25, 1879, for the lots in suit with the certificates and filing thereon. (5) The court improperly and illegally gave judgment, upon the evidence, for defendants Thomas and Susan Pryce upon the cause of action set out in plaintiff's petition, and improperly and illegally adjudged the costs against plaintiff therein and thereon. (6) The court improperly and illegally gave judgment, upon the evidence, for defendant Susan Pryce upon her counter-claim or cause of action set up in her answer, and divested plaintiff of all title to and interest in the lots, and invested defendant Susan therewith. (7) The court erred in giving judgment for said defendant Susan Pryce upon her answer, or counter-claim set up therein, because neither the evidence in the cause nor the pleadings, nor both, authorized or warranted the same. (8) The court erred in failing, upon the evidence, to give judgment in favor of plaintiff upon his and defendant Susan Pryce's cause of action. (9) The court erred in overruling plaintiff's motion to set aside the judgment and grant him a new trial.
Anderson & Schofield for Susan Pryce, respondent.
(1) A married woman can convey her real estate only by virtue of, and in the manner authorized and empowered by, the enabling statute. R. S., secs. 669, 681. Her acknowledgment is an essential part of the deed. Such acknowledgment must, therefore, conform to the requirements of the statute; and the certificate of the officer taking it must be true. Chauvin v. Wagner, 18 Mo. 531; Wannell v. Kem, 57 Mo. 478; Steffan v. Bauer, 70 Mo. 399; Belo v. Mayes, 79 Mo. 67; Drew v. Arnold, 85 Mo. 128; Webb v. Webb, 87 Mo. 541; Bohan v. Casey, 5 Mo.App. 101. (2) The evidence clearly shows and the court found: (a) That the respondent Susan never acknowledged to the officer that she executed the deed of trust in question, freely and without compulsion or undue influence of her husband; (b) that she was not made acquainted with the contents of this deed by the officer taking her acknowledgment, nor did enough occur at the time to legally satisfy the officer that she was acquainted with the contents thereof; (c) that she was not in point of fact acquainted with the contents of the deed at the time of giving her acknowledgment; (d) that no sufficient examination of Mrs. Pryce was made by the notary. Under these facts the judgment was for the right party. Authorities, supra. (2) Wallace, the notary public, was a competent witness to testify as to what occurred at the time of taking respondent Susan's acknowledgment. (3) No declarations of law were asked or given. Under the pleadings and evidence the court found the issues and gave judgment for the respondent. In such case the Supreme Court will not interfere. Thies v. Garbe, 88 Mo. 149; Hamilton v. Boggess, 63 Mo. 251; Parkinson v. Caplinger, 65 Mo. 290; Wilson v. Railroad, 46 Mo. 36. (4) Even where declarations of law are given this court will not disturb the finding of the trial court nor look into the evidence to determine its weight. Gould v. Smith, 48 Mo. 43; Douglas v. Orr, 58 Mo. 573; McHugh v. Meyer, 61 Mo. 334. (5) And in cases of purely equitable cognizance this court will only interfere reluctantly, and, it seems, where the evidence is clearly insufficient to support the judgment. Hodges v. Black, 76 Mo. 537; Hendricks v. Woods, 79 Mo. 599; Gimble v. Pignero, 62 Mo. 240. (6) There was no error in excluding the deed from the sheriff to Jeffries and that from Jeffries to respondent Susan. (7) The court did not err in setting aside the deed in question, divesting the appellant of, and reinvesting respondent Susan with, the title to the premises. Baker v. Circle, 60 Mo. 258, 264; Long v. Mining Co., 68 Mo. 422; Snider v. Coleman, 72 Mo. 568.
This was an action in ejectment in the circuit court of Lewis county instituted by the plaintiff against the defendant Thomas Pryce to recover the possession of lots six, seven, eight, nine, and ten in block twenty-four in Wright & Shropshire addition to the town of LaGrange in said county. The petition was in the usual form, summons issued returnable to the March term, 1885, of said court, and served upon said defendant, at which term the parties appeared, and on motion Susan Pryce was made a party defendant and leave granted both defendants to answer sixty days before next term.
On the twenty-seventh of June following, in vacation, the said Susan filed her separate answer to the petition, in which, after denying generally each and every allegation in the petition, she set up substantially the following defence: That she is a married woman and the wife of her co-defendant; that she is the owner in fee-simple of the real estate described in the petition, and has been ever since the day of 18 --; that being so the owner thereof, on or about the twenty-first of June, 1881, she was induced by the false representations of her husband to sign and acknowledge a certain deed of trust of that date executed by her said husband, conveying said real estate to one Joseph T. Benson, as trustee, to secure the payment to plaintiff of certain promissory notes executed by her husband to plaintiff, for the purchase money of a certain quarter section of land, which was also included in said trust deed; that at the time she executed and acknowledged said deed she was not acquainted with the contents thereof, and did not know that said lots were included therein; that the notary public by whom her acknowledgment was taken, did not read the same to her, and wholly failed and neglected to make her acquainted with the contents thereof; and that if she had known that said lots were included in said deed of trust she would not have signed or acknowledged that she executed said deed freely, and without compulsion or undue influence of her said husband; that the sole and only title the said plaintiff has in and to said lots is derived through the trust deed aforesaid, the sale thereunder by the trustee, and the deed executed by the trustee after the sale aforesaid. Defendant Thomas Pryce did not answer.
Plaintiff, at the ensuing September term, filed a reply to the separate answer of defendant Susan, in which, without denying the allegation in the answer, that she is and had been since, etc., the owner in fee-simple of the premises, he admits the giving of the deed of trust by defendants, and that he claims title to said lots through a sale thereunder by the acting trustee, and denies specifically all the other allegations of the answer. The case was tried by the court without a jury upon the issue made by the answer and the reply. No instructions were asked or given, the court made a finding of the facts, and rendered a judgment and decree for the defendants, from which plaintiff appeals.
On the trial the plaintiff introduced the deed of trust referred to in the pleadings, executed and acknowledged in proper form by the defendants, and including the lots sued for; the deed of the acting trustee properly reciting his power, the default, notice, sale, and purchase by plaintiff, and in proper form conveying the interest of defendants...
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