Roach v. Francisco

• Decision Date: 27 October 1917
• Citation: 197 S.W. 1099,138 Tenn. 357
• Parties: ROACH v. FRANCISCO ET AL.
• Court: Tennessee Supreme Court

197 S.W. 1099

138 Tenn. 357

ROACH v. FRANCISCO ET AL.

Supreme Court of Tennessee.

October 27, 1917

Appeal from Chancery Court, Campbell County; Hugh G. Kyle Chancellor.

Bill by Sarah Roach against J. H. Francisco, trustee, and others. From the decree rendered, Francisco appeals. Reversed and rendered.

LANSDEN J.

This bill was filed by Mrs. Roach to enjoin the defendant, as trustee, from selling a house and lot in La Follette, Tenn under the terms of a deed of trust executed to him. The complainant claims that she is entitled to homestead in the house and lot, and that the deed of trust is void as to her. She testifies that her husband brought the deed of trust to their home and asked her to sign it. When she inquired of him what the paper was about he cursed and abused her, and she signed the paper in order to stop his abusive language without any knowledge of its contents. Some time afterwards she was called over the telephone by some person who she supposed was Mr. Carlock, and was asked by this person if she signed the instrument, and she replied, over the telephone that she did. The house and lot was all the real estate which the husband and wife owned, and they were living upon it. After getting the money, for which the deed of trust was executed, the husband deserted his wife and children. The deed of trust appears upon its face to have been regularly acknowledged by the complainant with her husband before George Stott, notary public.

The defendant Francisco was an accommodation indorser for Roach, the husband, and in default of payment by his principal, he has paid the note, with interest, to the National Bank of La Follette, the payee therein.

Section 3753 of Shannon's Code provides as follows:

"Every deed or other instrument of writing executed by husband and wife, and acknowledged or proved and registered in the manner hereinafter prescribed, shall bind them, their heirs or assigns. The officer or court, before whom the execution of such deed or instrument is acknowledged or proved, shall examine the wife privily and apart from her husband, touching her voluntary execution of the same, and her knowledge of its contents and effect; and if she acknowledges or states that she executed the same freely and voluntarily, and without any compulsion on the part of her husband, and the clerk or other officer is satisfied that she fully understands the same, he shall, in addition to the certificate of probate or acknowledgment above prescribed, also put on the back of the deed, or annex to it, the following certificate [setting out the form of the certificate required]."

In Wester v. Hurt, 123 Tenn. 509, 130 S.W. 842, 30 L. R. A. (N. S.) 358, Ann. Cas. 1912C, 329, this section of the Code was under construction, and we held that the privy examination of a married woman could not be taken over the telephone. In that case it was said:

"The deed of a married woman living with her husband, conveying her general estate, is void without her privy examination. The form of this examination is prescribed by statute (Shannon's Code, § 3753), and every material part of this form is necessary to make the probate of the deed valid upon its face. The action of the officer taking the acknowledgment is a judicial one, and establishes by judicial force: (1) That there was a personal interview between him and the bargainor; (2) that this interview was private and apart from the husband; and (3) that the execution of the deed was confessed to have been made freely, voluntarily, and understandingly, and without compulsion or constraint from her husband, for the purposes therein contained. * * *

These conclusions are abundantly established by all of our authorities. It is clear that if the officer taking the privy examination of the married woman does not have a personal interview with her, and does not propound the required questions to her while in her presence, he cannot determine judicially whether the deed has been executed in the manner and under the conditions that the law requires in order to make a valid conveyance of a married woman's estate. This is manifest from the language of the statute itself. The officer is to determine as a matter of judicial judgment that she did execute the instrument freely, voluntarily, and understandingly, and without compulsion or constraint from her husband; and this he cannot do out of her presence, because her appearance, manner and demeanor may become more potent factors in ascertaining the truth of this than mere formal answers to questions."

The conclusion of the court in that case was that examination of a married woman under such circumstances "was a mere empty form, unauthorized by the statute, and the certificate made by the officer, although it contained the proper words, does not establish the facts certified to." Such a conclusion was inevitable from our previous decisions construing the foregoing section of the Code. It has been held that the omission of the words "and having * * * been examined" is fatal to the validity of the certificate of privy examination. It was held that such an omission is not a mere verbal one which can be overlooked under the provision of section 3757 of Shannon's Code, because the requirement that the certificate shall show the examination requires the notary to perform an act that is not included in the fact of the mere acknowledgment of the execution of the instrument. Ellett v. Richardson, 9 Baxt. 293; Currie v. Kerr, 11 Lea, 142; Cox v. Association, 101 Tenn. (17 Pick.) 491, 48 S.W. 226; Childers v. Coleman, 122 Tenn. (14 Cates) 122, 118 S.W. 1018.

We know as a matter of history that the Legislature did not contemplate that this solemn act would be done by telephone for the reason that there were no telephones when the statute was enacted in 1715, 1813, 1833, and we cannot construe such an acknowledgment to fall within it because the words employed by the Legislature forbid such a construction.

What we have said has been upon the assumption that the proof shows that the acknowledgment was taken over the telephone. The only direct proof on the subject is the testimony of Mrs. Roach. She is positive in her statement that such was the fact, and she was not cross-examined or otherwise contradicted in any way. The notary, it is shown, has absconded, and his whereabouts is unknown. It is shown by stipulation of counsel that neither the bank nor defendant Francisco knew anything about the relationship existing between Mr. and Mrs. Roach, nor did they participate in the fraud practiced upon her. We have no doubt, after reading her deposition, about her acknowledgment having been taken over the telephone in the manner as she has stated. As intimated above, there is nothing to the contrary, and there is no impeachment of her testimony in any particular. The bank has been paid the sum due it, and the question here presented is between the surety of Mrs. Roach's husband and Mrs. Roach.

There are two questions made upon this testimony: First, it is said that the testimony itself is inadmissible to contradict the certificate of the notary; and, second, it is said that the unsupported testimony of the defrauded wife is insufficient to overturn his certificate.

Parol testimony has been received in many cases for the purpose of invalidating the officer's certificate by contradicting the words contained in it. Shields v. Netherland, 5 Lea, 193;...