Mays v. Pryce

• Decision Date: 04 June 1888
• Citation: 8 S.W. 731,95 Mo. 603
• Parties: MAYS v. PRYCE et ux.
• Court: Missouri Supreme Court

8 S.W. 731

95 Mo. 603

MAYS v. PRYCE et ux.

Supreme Court of Missouri.

June 4, 1888.

1. HUSBAND AND WIFE — CONVEYANCE BY WIFE — ACKNOWLEDGMENT — IMPEACHING THE CERTIFICATE.

A wife who, with her husband, executed a deed, was not informed by the notary taking the acknowledgment, neither did she know, that the deed conveyed the land included therein, and did not acknowledge nor did he ask her whether she executed the deed freely, without compulsion or undue influence of her husband. Rev. St. Mo. § 680, enacts that no acknowledgment of a writing conveying real estate, by a married woman, shall be taken unless she is first made acquainted with the contents of the instrument, and shall acknowledge, on an examination apart from her husband, that she executed the same freely, and without compulsion or undue influence of her husband. Held, that said deed was, as to the married woman, invalid, although the certificate of acknowledgment showed on its face full compliance with the statutory requirements.

2. SAME — NOTARY AS WITNESS.

In such case, the testimony of the notary who took the acknowledgment is admissible to contradict the statements of his certificate.

3. SAME — SETTING ASIDE DEED — DECREE.

In such case, a decree setting aside such deed in toto for such defect, and vesting said married woman with all the rights of the grantee, is erroneous, the proper decree being simply to set aside the deed as to her.

4. EJECTMENT — EVIDENCE — PLEADING AND PROOF.

In ejectment against husband and wife, where the wife's answer avers, and the replication does not controvert, that the wife was, at the time plaintiff acquired the title under which he claims, the owner in fee of the real estate in question, the sole issue being the validity of a certain deed made by her, plaintiff cannot, without amendment, prove another title in himself, derived from the husband, and not put in issue by the pleadings.

Appeal from circuit court, Lewis county; BENJAMIN E. TURNER, Judge.

Ejectment by John Mays against Thomas Pryce and Susan, his wife, to recover certain lots in the town of La Grange, in Lewis county. Trial by jury; verdict for defendants; judgment thereon; and plaintiff appealed. Rev. St. Mo. § 680, enacts that no acknowledgment of a writing conveying real estate, by a married woman, shall be taken unless she is first made acquainted with the contents thereof, and shall acknowledge, on an examination apart from her husband, that she executed the same freely, without compulsion or undue influence of her husband.

Blair & Marchand, for appellant. Anderson & Scofield, for respondents.

BRACE, J.

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 6, 7, 8, 9, and 10, in block 24, in Wright & Shropshire's addition to the town of La Grange, 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 60 days before next term. On the 27th 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 defense: 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 21st 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 defendant, 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 in said lots to plaintiff; the rental value of the premises was agreed upon; and the plaintiff rested his case. The defendant Susan Pryce was then introduced in behalf of the defendants, and testified directly and unequivocally to the facts, as substantially set up in her answer. Robert M. Wallace was then introduced as a witness in behalf of defendant, who testified that he was a notary public; that he took the acknowledgment of defendants to the deed of trust; and proceeded as follows: "My recollection is that Judge Pryce, one of the defendants, gave the deed to me; took his acknowledgment first, and Mrs. Pryce's next." His attention being directed to the certificate, he said. "That is my certificate of their acknowledgment to said deed, and that is my name to the certificate pointed out by you." Defendants' attorney then asked the witness to state whether or not he read the deed to Mrs. Pryce before he took her acknowledgment, to which question plaintiff's attorney objected for the reason that, if the object is to have the witness restate the facts contained in the certificate, the evidence is unnecessary, and, if the object is to contradict the facts certified to in the certificate, he is incompetent to so testify. He cannot contradict the facts certified to by him. It would be contrary to public policy, and operate a fraud upon plaintiff to permit him to do so. Thereupon, the attorneys for the defendant being asked by the court what they proposed to prove by the witness, stated: "We propose to prove by the witness that he did not read said deed to defendant Mrs. Pryce;...