Jones v. Porter

• Decision Date: 10 May 1882
• Citation: Jones v. Porter, 59 Miss. 628 (Miss. 1882)
• Court: Mississippi Supreme Court
• Parties: JANE JONES et al. v. MARY A. PORTER

59 Miss. 628

JANE JONES et al. v. MARY A. PORTER

Supreme Court of Mississippi

May 10, 1882

Appeal from the Chancery Court of Claiborne County, Hon. H. S. Van Eaton, Chancellor.

This bill was filed, on July 5, 1880, by Mary A. Porter, against her own husband, H. B. Porter, and Jane Jones, and the latter's husband, D. A. Jones, to cancel a deed in trust on land in Claiborne County, executed April 30, 1877, by the complainant, to secure D. A. Jones, a merchant, for advancing her supplies to cultivate the land, and a deed of the same land to Jane Jones, dated March 3, 1878, and signed by the complainant, upon the allegations that the trust deed was given by her alone in the absence of her husband, who was in Louisiana, and that the deed was acknowledged under duress before the beneficiary in the trust deed, who had confederated with H. B. Porter to defraud the complainant. The defendants answered; and, at final hearing, the statements of the bill being proved, the Chancellor decreed the cancellation of the instruments and directed the clerk of the court to enter the fact upon the margin of the pages of the deed records of Claiborne County, where they were recorded. From this decree Jane Jones and her husband appealed.

Decree affirmed.

Stephen Thrasher, for the appellants, argued orally and in writing.

1. The Chancellor had no power to order the clerk to mutilate the deed records. If recognized, this would lead to inextricable confusion. Only when satisfied can a mortgage be so marked. Code 1880, § 1206. No court can reach these public records of titles except by subpoena duces tecum. Code 1880 § 1228. A public officer is the custodian of these books, which are carefully guarded by law. Code 1880 §§ 1223-1225. To alter them is a penal offence. Code 1880, § 2703. And interlineations, even by consent confer no rights. Collins v. Collins, 51 Miss. 311. The moment Mary A. Porter and her husband signed the deed, D A. Jones ceased to be an interested party, and was a competent officer to take the acknowledgment. The case does not come within the rule of Wasson v. Connor, 54 Miss. 351, where the officer taking the acknowledgment was a beneficiary in the deed of trust. In that case the court says that it is a quasi-judicial act, and he cannot be a judge in his own case. If this doctrine is applicable to a case like the present one, then an officer cannot take an acknowledgment where any of his relatives are interested parties. D. A. Jones had the right to pay the consideration, and to give the benefit to his wife by having the deed made to her. Campbell v. Henry, 45 Miss. 326. The acknowledgment was only necessary to have the deed put upon record. Sessions v. Reynolds, 7 S. & M. 130.

A. J. Lewis, on the same side.

1. The consideration for the deed was valuable and sufficient, and the fraud and duress alleged are not proved. Plantation supplies were a charge upon the land under the statute, even if the trust deed was invalid. And the appellee had the right to volunteer what she was legally bound to do. The deed to the property, purchased with money furnished by the husband, was not in fraud of his creditors and vested a good title in his wife. Fatheree v. Fletcher, 31 Miss. 265; Warren v. Brown, 25 Miss. 66. The character of the consideration does not alter the case. Jackson v. Pike, 9 Cowen, 69. The suit of Mary A. Porter, commenced more than two years after the execution of her deed, was an afterthought.

2. Had D. A. Jones taken the deed to himself, and then assigned it to his wife, his attitude would be different. In that case he would be the grantee, and his interest such as to disqualify him. But Mrs. Jones is the grantee, and, under the statute, had the use and control of the property granted. Code 1871, §§ 1778, 1779, 1780. At common law the husband and wife were dealt with as one person; but our courts of equity, in cases where they have separate property interests, regard them as distinct, and there may be direct pecuniary dealings between them. Simmons v. Thomas, 43 Miss. 31. D. A. Jones did all that could be done to divest himself of interest in the consideration and the land, and was as much a stranger to this conveyance as any other justice of the peace. The case of Wasson v. Connor, 54 Miss. 351, is not in point.

Martin & McLaurin, for the appellee.

1. D A. Jones, by taking the acknowledgment, acted as a judge in his own case, and this act was invalid. Wasson v. Connor, 54 Miss. 351. The acknowledgment of a married woman is an essential part of a conveyance of her real estate. Allen v. Lenoir, 53 Miss. 321; Willis v. Gattman, 53 Miss. 721; Harmon v. Magee, 57 Miss. 410. The reasoning of the appellants shows that they have fallen into an error as to the significance of the word "executed" as applied to conveyances of land. Executed at common law meant the signing, sealing, and delivering,--the formalities by which a deed becomes operative. 2 Black. Com. 295; 4 Kent. Com. 450. A deed, under the Code of 1871, between privies, became operative when signed, sealed, and delivered, except as to married women,...