Hartley v. Wife

• Decision Date: 01 January 1851
• Citation: 6 Tex. 208
• Parties: HARTLEY AND OTHERS v. FROSH AND WIFE.
• Court: Texas Supreme Court

6 Tex. 208

HARTLEY AND OTHERS

v.FROSH AND WIFE.

Supreme Court of Texas.

1851.

Allegations in relation to the influence exercised by the husband over the wife in inducing her to execute a deed of trust upon her separate estate to secure an individual debt of his own, present no basis for equitable relief as against third persons who were not privy thereto.

If the husband act unfairly or iniquitously towards his wife in a transaction involving the transfer or incumbrance of her separate property, he cannot join with her in a suit to repudiate such act to the injury of innocent third parties; the wife might have her remedy, but it would be adversely to, not conjointly with, her husband.

Where the certificate of the privy examination of a married woman is in due form, in order to impeach its veracity it is not sufficient to allege that there was no privy examination, that the contents were not made known to her, & c.; the certificate is conclusive in the absence of an allegation of fraud or imposition; as, for instance, that there was a fraudulent combination between the notary and the parties interested. (Note 34.)

Appeal from Brazoria. This was a suit by the appellees for an injunction to restrain the defendants from selling certain property of the wife under a deed of trust given to secure a debt of the husband. The petition alleged that the said Jane (the wife) was not aware either of the true contents of the deed of trust or of the legal effect thereof at the time of her signing and acknowledging it; that the said Lawrence (the husband) requested and directed this petitioner to sign and execute said instrument; that, being the wife of said Lawrence, she did comply with the request and obey the direction of him, said Lawrence, and did sign her name to the instrument or deed of trust aforesaid; that said deed of trust the said Lawrence represented to said Jane was to secure an individual debt which said Lawrence then owed on his individual account; and the said Jane was told if she would become security for the debt of her husband, said Lawrence, by signing and acknowledging the instrument or deed of trust aforesaid, as she has since learned it to have been, she, said Jane, should have transferred to her and have under her control a large debt against her husband, said Lawrence, amounting to more than the sum of one thousand dollars; and the said Jane alleges that at the time of signing and executing said deed of trust she was not advised or informed of the nature of the instrument, or that the same related in any way to the premises mentioned in said deed of trust; said deed of trust was not read to her or in her hearing; nor did the said Rhodes (the notary) examine her or ask her any questions whatever in relation thereto separate and apart from her said husband; nor did she have any intercourse, conversation, or communication, relating to said instrument, with said Rhodes, except in the presence of her said husband.” There was no allegation of fraud on the part of any of the defendants or the notary, or that they had notice of what was alleged in contradiction of the notarial certificate.

The defendants demurred and answered. It appeared from transcripts of judgments in the record and from the answers of the defendants that the defendants had recovered judgment against the husband in the United States District Court for this district, amounting in the aggregate to sixteen hundred dollars; that executions were issued upon said judgments and levied upon merchandise of the husband, who was a merchant; that the wife then executed the deed of trust for the amount of the judgments, in consideration whereof the judgments were assigned to a trustee whom she herself appointed; that the executions were returned “not executed, by order of the plaintiffs.” The defendants moved to dismiss the petition. At December Term, 1850, the court below overruled the motion to dismiss the petition, and perpetuated the injunction which had been granted in the first instance on the ground that the wife could not become a surety for a debt of the husband.

The error assigned was that the court below erred in perpetuating the injunction and in not dismissing the petition.

O. C. Hartley, for appellants.

I. The ground on which the court below overruled the defendant's motion to dismiss and perpetuated the injunction was that a married woman could not give a security on her property for a debt of her husband. The case of Hollis and Wife v. Francois and Border, which was decided at the last term of this court, had not come to the knowledge of the judge. It will therefore be taken for granted that the judgment must be reversed. (Hollis and Wife v. Francois and Border, 5 Tex. R., 195; Sampson v. Williamson, ante.)

II. Ought the case to be remanded? The statute makes it the duty of this court to “proceed to render such judgment or decree as the court below should have rendered or pronounced, except when it may be necessary that some matter of fact be ascertained or the damages to be assessed or the matter to be decreed is uncertain.” (Hart. Dig., art. 2913.)

There is no uncertainty here neither as to damages nor matter to be decreed.

Is it necessary that “some matter of fact” be ascertained?

We understand that the “matter of fact” contemplated by the statute is “some matter of fact” put in issue by the pleadings, or suggested by the record at least. So this court has decided by implication in several instances. (Swenson v. Walker, 3 Tex. R., 93; Linn v. Scott, Id., 67;Blair v. Odin, Id., 288;Erskine v. De La Baum, Id., 406;Wybrants v. Rice & Nichols, Id., 457.) We say there is no such matter of fact necessary to be ascertained in this case.

III. The acknowledgment of a deed may be for the purpose of, 1st. Passing title. 2d. Entitling the deed to be registered.

The ordinary acknowledgment of a grantor is generally of the latter description; the private examination and acknowledgment of a married woman is always of the former. If the acknowledgment be merely for the purpose of registry, the certificate is conclusive for that purpose; but it is no evidence whatever of the passage of title, and therefore does not entitle the deed to be read in evidence without the usual proof. The Legislatures of different States have, however, provided for the sake of convenience that deeds so acknowledged for registry may be received as prima facie evidence without further proof; others have not done so, and full proof is required where such deeds are offered in evidence. (4 Johns. R., 161; 1 Bin. R., 616; 2 Id., 95 and 154;1 S. & R., 102.) All the decisions where the court suffered the certificate to be contradicted will be found to fall within the above class when the acknowledgment was not provided by law for the passage of title but for the purpose of recording.

If on the other hand the acknowledgment be for the purpose of passing title, and the certificate be in proper form, it is conclusive for that purpose, and cannot be contradicted. By these simple propositions all the cases upon the subject can be distinguished and reconciled. (1 H. & J. R., 14; 1 H. & McH. R., 211; 3 Whart. R., 457; 3 H. & McH. R., 321; 3 Yerg. R., 548.)

Of course the certificate is evidence of nothing which the law did not require the officer to certify. (4 Johns. R., 161;2 S. & R. R., 80; 20 Johns. R., 478; 2 Wend. R., 555; 2 Yerg. R., 23.)

Of course it may be shown that the officer had no jurisdiction. (4 Cow. R., 266; 1 Johns. R., 498.)

And of course it may be shown that the acknowledgment was obtained by imposition or fraud, always saving the rights of innocent third parties. (12 Johns. R., 469.)

All the above propositions result naturally and inevitably from the following general principle: Where the law requires any officer to make a return or certificate of a matter in pais, the return or certificate is conclusive for the purpose for which the law required it; but wherever the law requires any officer to make a return or certificate of a matter of record, the return or certificate is only prima facie evidence, and may be contradicted by the production of the record itself. (2 Yates R., 448; 4 S. & R., 281; 6 Id., 94; 13 Pet. R., 498; 12 Id., 410: Hughes' R., 43, 134; 5 Wend. R., 294; 8 Id., 393; 3 Pick. R., 404.) This proposition results from one still more general: that a higher degree of evidence cannot be contradicted by a lower, and that the best evidence will always be received. No cases can be found which impugn the above propositions; any which may appear to do so will be found upon examination to proceed upon peculiar legislation.

And the proof of the rule is that even in the case of a certificate of the registry of a deed the court would not admit the testimony of a witness to prove that he had examined the records and no such deed was recorded--the only evidence admissible being the record itself, which must in such case be produced in court. This shows the reason why the rule is different as to certificates of matters of record and matters in pais, the appeal being allowed from a lower to a higher degree of evidence.

IV. There is no pretense that there was any fraud or imposition practiced in this case by the notary or the grantees in the deed of trust. The case has thus far proceeded upon entirely different grounds, as, for example, that the wife could not become a surety for her husband, and that the notarial certificate could be contradicted...