L. M. Wiley & Co. v. Prince
| Decision Date | 01 January 1858 |
| Citation | 21 Tex. 637 |
| Court | Texas Supreme Court |
| Parties | L. M. WILEY & CO. v. G. W. PRINCE AND WIFE. |
Although a wife may, under her power of alienation, mortgage her property to pay the debts of her husband, without any consideration inuring to herself, yet every such transaction should be scrutinized with an anxious watchfulness, and caution, and dread of undue influence.
The certificate of the officer taking the acknowledgment of the wife to a deed of conveyance, is conclusive of the facts therein stated, but may be rebutted by proof of fraud, mistake or imposition. 6 Tex. 208;18 Tex. 644.
Where the property is alienated in fee, and a consideration passes, it is necessary for the security of titles, that the certificate of the officer should be held conclusive, unless the fraud or wrong charged to impeach the alienation were known to the grantee, or the circumstances were such as should have impelled him to an inquiry which he neglected. It seems, to say the least, to be doubtful whether this be the rule where no consideration passes, and where the wife becomes the surety to pay the debts of the husband antecedently contracted.
The rules in relation to duress, as against strangers apply with redoubled force in favor of a wife. Acts and circumstances, which would not relieve a stranger, would be duress as regards the wife.
Appeal from Nacogdoches. Tried below before Hon. A. O. W. Hicks.
Suit upon two notes, executed by George W. Prince, secured by a mortgage, executed by said George W. and Sarah, his wife, upon separate property of said wife.
On the trial, the appellants read in evidence to the jury the notes declared on, the mortgage with its authentication certificate of privy examination of the wife by the notary public, and the certificate of record, and closed.
The appellees introduced a witness who testified that one Charles Keith was the accredited agent of the appellants; that about the first of April, 1854, Keith came to the residence of appellees, in company with Geo. W. Prince, the husband; that Prince went into the room where his wife then was, Keith and the witness remaining in an adjoining room, between which rooms there was a door. Witness heard Geo. W. Prince say to his wife that he wanted her to sign and execute a mortgage upon a tract of land, in which she had a separate interest, the same described in the mortgage, to secure a debt he was owing to persons from whom he had purchased goods; that by so doing she would enable him to maintain his credit, purchase more goods, and continue his business. Mrs. Prince said to him that he had gone through with his property, and she did not intend he should go through with hers, and she would sign no mortgage. Upon this Prince commenced using violent language, and said if she did not give the mortgage asked for that he would burn her house down, and carry her children off. Witness does not know whether Keith heard the language used by Prince, but thinks he did. Prince then came into the room where he and Keith were, and told Keith that his wife refused to give the mortgage, and desired him to go in the room where she was and talk with her. Keith went in, and told her if she would give the mortgage, it would enable her husband to obtain credit in New York, and a further stock of goods, and continue his business; she refused in the same words which she used to her husband, and Keith left her. Mrs. Prince was at the time suffering from a sprained ankle. Afterwards on the same day witness heard Prince say, in presence of Keith and one or two others, that his wife should give the mortgage, or he would burn the house down and carry off the children. Another witness testified, that he heard Prince make the same threat, that he would burn down the house and carry off the children, if his wife did not sign the mortgage. In reply, the appellants introduced J. R. Clute, the notary, who took Mrs. Prince's acknowledgment, who testified that the examination was made in the usual way; she signed the mortgage after it was read to her, and made the acknowledgment as stated in the certificate; saw no reluc tance on her part to sign the same.
There was a verdict and judgment against Geo. W. Prince for the amount of the notes and interest, and further that “Sarah Prince, his wife, did not of her own free will and accord execute the mortgage,” upon which judgment was rendered for her canceling and annulling the...
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