Belcher v. Weaver

• Decision Date: 01 January 1876
• Citation: 46 Tex. 293
• Parties: ROBERT BELCHER v. THOMAS M. WEAVER.
• Court: Texas Supreme Court

46 Tex. 293

ROBERT BELCHER

v.THOMAS M. WEAVER.

Supreme Court of Texas.

1876.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

Robertsons & Herndon, for appellant.

Jones & Henry, for appellee, cited, in support of their position that the certificate was sufficient, Monroe v. Arledge, 23 Tex., 480;Berry v. Donley, 26 Tex., 745; Tubbs v. Gatewood, 26 Ark., 128.

ROBERTS, CHIEF JUSTICE.

The only question in the case, as stated by counsel on both sides, is, did the District Court err in admitting in evidence the deed of a married woman, to which was attached the following certificate:

+-----------------------+
                ¦“THE STATE OF TEXAS, ¦)¦
                +---------------------+-¦
                ¦County of Smith.     ¦)¦
                +-----------------------+
                

Personally appeared before me, Samuel D. Gibbs, Chief Justice of Smith county, Woody Belcher, party to a deed bearing date November the 29th, 1858, and acknowledged that he, the said Belcher, signed the said deed, for the purposes and considerations therein set forth and expressed, and Ellen Belcher, wife of said Belcher, also a party to said deed, whose signature, with her mark to the same, being by me, said Gibbs, examined privately and apart from that of her husband, and having the said deed fully explained to her, she, said Ellen Belcher, acknowledged that she signed the said deed without any bribe, threat, or compulsion from that of her husband, and that she does not wish to contract the same. Given under my hand and seal of the County Court of Smith county, at Tyler, this the 29th day of November, 1858.

SAMUEL D. GIBBS,

Chief Justice, Smith Co.”

The form of the certificate prescribed by the statute is as follows, so far as it relates to the wife:

“Personally appeared ________, wife of ________, parties to a certain deed or writing, bearing date on the ____ day of _____, and hereto annexed, and having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said ________, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it.”

The statute provides that any certificate showing that the requisites of the law have been complied with, shall be as valid as the form here prescribed. The enacting clause, does not use exactly the same terms as those used in the form prescribed. It is, that the wife, “being privily examined by such officer, apart from her husband, shall declare that she did freely and willingly sign and seal the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing so again shown to her to be her act; thereupon such judge or notary shall certify such privy examination, acknowledgment, and declaration under his hand and seal,” & c.

The word “freely” may be omitted in the certificate, because it is omitted in the form. The word “seal” may be omitted, because when this deed was made a seal was not necessary. The words “and deed,” in connection with “act,” may be omitted, because, though in the form, it is not in the same connection in the enacting clause. So the word “delivered” is in one and not in the other. The form does not include that the deed was “shown to her,” as contained in the enacting clause of the law.

The substance of what must be stated in the certificate is nominally, at least, divided by the statute into three parts--the privy examination, the acknowledgment, and the declaration. This division, when we come to apply the law in fact, will be found more nominal than real, because the statute does not itself make a perspicuous and distinctive division in specifying the things necessary to be done.

The certificate of the officer should show substantially that the things required by the statute had been done. This might be shown in a certificate, wherein each part is not separately presented, but even rather confusedly intermixed, if, upon a consideration of the whole certificate, it could be seen that they had been done. In other words, what is stated in the certificate is intended as a representation on paper of what was done in the discharge of this duty imposed upon the officer by the law; and although the representation may blend the parts in one, or use language, in making the representation, not technically appropriate, still, if the expressions used in making the representation, as the officer evidently meant them to be used and understood, clearly represent the several things to have been done which the law requires, it will be a sufficient certificate. The form, as given in the statute, is strikingly variant from the enacting clause in the terms used to represent what should be done, as has been shown by a comparison of the two; and if we should examine the words and expressions used in the form and in the enacting clause of the law to arrive at the meaning of the Legislature as to what they intended should be done, certainly, with equal propriety, we should examine the words and expressions of the officer, to arrive at his meaning, however inartificially expressed, in his effort to represent on paper what he had done.

The expressions representing the privy examination are complete, excepting some bad grammar. The declaration that she signed the deed without any bribe, threat, or compulsion from her husband may be...