McKINNEY, Justice.
Complainant is the widow of W. C. Pirtle, who died intestate on August 16, 1931. These parties were married in June, 1922. Each had children by a previous marriage. No children were born as a result of this union. The defendant Bob Pirtle is a son of W. C. Pirtle: On July 14, 1923, W. C. Pirtle and complainant executed a note to Bob Pirtle for $2,200, and secured same by a mortgage on the 145-acre farm owned by W. C. Pirtle. This sum consisted of a previous indebtedness of $1,422.25, a check for $575.75, which was cashed, and the balance was interest at the rate of 8 per cent. Subsequently Bob Pirtle paid the taxes on the farm, and the fire insurance premiums on the dwelling, so that on July 7, 1930, the indebtedness, with interest, amounted to $3,554.19, for which W. C. Pirtle and complainant executed a renewal note, payable one year after date. Bob Pirtle also paid all funeral expenses of his father. After the death of W. C. Pirtle the mortgage was foreclosed and the farm was purchased by a brother of Bob Pirtle, who subsequently conveyed it to the latter.
By the bill herein complainant seeks to have homestead and dower decreed to her in said farm, it being alleged that her execution of said mortgage was procured by fraud and duress.
The chancellor dismissed her bill. The Court of Appeals reversed the chancellor, and granted complainant the relief sought. The writ of certiorari has heretofore been granted and argument heard. Neither court found that complainant had been defrauded, and there is no evidence to support this theory of the bill. Questions are raised as to the regularity of the privy examination of complainant.
In Shields v. Netherland, 73 Tenn. (5 Lea) 193, 196, 197, the court said: "But it has long been settled in this State that a court of chancery has no jurisdiction to enquire into the regularity of a privy examination, or other probate. Campbell v. Taul, 3 Yerg. 548. The authorities in other States are in accord. Hartley v. Frosh, 6 Tex. 208 ; Baldwin v. Snowden, 11 Ohio St. 203 . The reason is, that the taking of the probate of an instrument under the authority of law is in the nature of a judicial act, an essential part of the conveyance, and cannot be contradicted by parol proof. The policy of the law requires that the official certificate should be conclusive. If it were otherwise, and the certificate only prima facie evidence of the facts intended to be verified, the title to land would lose, in a great measure, that security which the registration laws were designed to ensure. The probate can only be attacked for fraud. Campbell v. Taul, 3 Yerg. 548; Finnegan v. Finnegan, 3 Tenn. Ch. 510, 514."
Furthermore, section 2, chapter 48, Public Acts of 1919, provides:
"The acknowledgment of a married woman
when required by law may be taken in the same form as if she were sole and without any examination separate and apart from her husband."
Section 1 of said act provides that the forms of acknowledgment now in use in this state, or the form prescribed therein, may be used. One of the forms in use, section 3717 of Shannon's Code, is as follows:
"Personally appeared before me, (name of clerk or deputy), clerk (or deputy clerk) of the county court of said county, (bargainor's name), the within named bargainor, with whom I am personally acquainted, and who acknowledged that he executed the within instrument for the purposes therein contained. Witness my hand, at office, this ____ day of ____, 19 ___."
The certificate of the mortgage here involved, exclusive of the privy examination, is as follows:
"Personally appeared before me, S. H. Franks, a notary public in and for said County, the within named bargainors, W. C. Pirtle & Wife, Alice Pirtle, with whom I am personally acquainted, and who acknowledged that they executed the within instrument for the purposes therein contained."
It will thus be seen that the acknowledgment is in the exact words of the statute.
The Court of Appeals found that complainant was procured to execute said mortgage by duress on the part of her husband, who was acting as the agent of the defendant Bob Pirtle.
Complainant testified as follows:
"Who brought the mortgage to you to sign?
"Mr. Spence Franks brought it down there. Mr. Pirtle begged me to sign the mortgage and talked rough to me when I refused.
"What did he say?
"He used lots of bad talk I don't like to use what he said.
"Tell it.
"He said he did not give a God damn how soon I left there, it was his land and he would do as he damn pleased with it. I got to crying so I told him I would not sign it and so Mr. Franks left and went off, this was the first time Mr. Pirtle tried to make me sign the mortgage. Mr. Pirtle talked very rough to me, he said Bob was wanting his money and he was going to have it.
"Was you crying when all this took place?
"Yes, of course under such rough treatment he was giving me and seeing my home mortgaged I would cry. Mr. Franks will tell it if he swears the truth. Then Mr. Franks went away without my signature to the mortgage and I said he need not come back with the papers, for I am not going to sign it because you will put me out of a home and Mr. Pirtle said I won't. I said why you will, he said I just owe that much. He said I have everything fixed and Mr. Franks gets up and starts to leave, this was the first time Mr. Franks came for my signature. Mr. Pirtle said, you can sign this or leave one and I believed what he said. I said to Mr. Franks bring it back and I will sign it, this was the second time."
Mrs. Lloyd Swindell, a daughter of complainant, gave the following testimony:
"Was you present at any time when any request was given to your mother to sign a mortgage or paper about the land?
"Yes.
"Tell the court about it what was his name?
"Franks the notary public.
"Begin at the first, tell all you know about this transaction.
"I was there, he came one morning early, papa called mother out and ask her to sign a mortgage and she said she wasn't going to do it. They had a fuss, Franks went away, Mr. Pirtle cursed and told her she just as well sign it for he was going to have a mortgage on it anyway. I wasn't present any more. I don't remember the date it was a few years ago.
"Did you hear of the occasion when she did sign it?
"Well Mr. Franks brought a note there for mother to sign.
"Did you see the note?
"Yes.
"How much was it for do you remember?
"$2200 the first note I don't remember any other note.
"Explain to the court as near as you can your mother's actions and appearance at the time that you was present when she refused to sign it, the mortgage?
"She was crying.
"What was she crying about?
"Because Mr. Pirtle was making her sign her home away.
"Did you hear him say she could sign the mortgage or leave there?
"Yes, he told her that."
Roy Gillet, a son of complainant, testified as follows:
"Do you know anything that would shed any light on this mortgage?
"Yes.
"Tell the court what time a day it was and who brought the mortgage?
"Well early in the morning Mr. Franks brought the mortgage and Mr. Pirtle ask mother to sign it, she refused and would not sign it, they had words over it, mother cried. Mr. Pirtle told her to sign it or leave there. That he was going to have a mortgage on it. Mr. Pirtle was cursing and mother
a crying. They had an awful racket. Mr. Franks left without the mortgage being signed. I heard him tell her after Mr. Franks left that she just as well go sign it that he was going to have a mortgage on it anyway.
"Anything else you know about this?
"No I guess not.
"You wasn't there when Mr. Franks came the last time?
"No."
Spence Franks, the notary public who took the acknowledgment to the mortgage, details the transaction as follows:
"You took the mortgage up there for her to sign didn't you?
"Yes sir, I did. Mr. Winstead carried me up there the first time and they were not at home. Later on I went up there, they were there and Mr. Pirtle said he and wife would be out directly, they came out. I had papers in my hand. Mr. Pirtle said all right, Mrs. Pirtle said she wasn't going to sign it. I said my business is just to get you to sign this willingly and if not, don't you do it, she said she would not. Mr. Pirtle's son asked me to go and look at the hogs out at the barn when we came back and I started to leave she called me back and said she had decided to sign it. She said have you got any money in it? I said yes, I have a check for Mr. Pirtle. She said who is it going to? Give it to me. I said it is made over to Mr. Pirtle.
"Was Mr. Pirtle trying to make her sign it?
"No, he just set there crying with his head down.
"She signed it?
"Yes.
"Did you deliver any papers to them?
"Yes a whole bundle.
"Do you know what it contained?
"Checks and receipts that had been paid off.
"You say she ask you if you had any money for them and who was going to get it?
"Yes.
"Did you deliver to them all papers?
"Yes.
"She called you back to sign it?
"Yes.
"He didn't say anything to her just sat there and cried?
"Yes."
On...
