Rollins v. Menager

• Decision Date: 10 November 1883
• Citation: 22 W.Va. 461
• Parties: Rollins and Entsmlnger v. Menager, Trustee, et als.
• Court: West Virginia Supreme Court

22 W.Va. 461

Rollins and Entsmlnger

v.Menager, Trustee, et als.

Supreme Court of Appeals of West Virginia.

Submitted January 24, 1883

Decided November 10, 1883.

1. When the privy examination, acknowledgment and declaration of a married woman shall have been taken in the manner pre- scribed by & 4 of ch. 73 of Code and recorded or certified, and the deed of trust, on which it is endorsed, conveying the real estate of a married woman shall have been duly admitted to record as to the husband as well as to the wife, such deed of trust operates to pass from her and her representatives all right, title and interest of every nature, which at the date of the deed of trust she may have in any real estate conveyed thereby, as effectually as if she were at the date of the deed of trust an unmarried woman; and it will so operate, though the deed of trust was given to secure a past debt of her husband or of some third person and there was no new consideration arising when the deed of trust was executed, provided it was in the usual form of a deed of trust. (p. 473.)

2. In such a case the feme covert will not be permitted by parol evidence to contradict the facts set out in the certificate of her privy examination, acknowledgment and declaration so as to avoid the effect of the deed of trust, unless she first establish by parol evidence satisfactorily, that with the concurrence of those claiming under the deed of trust the married woman has been defrauded or imposed upon by the pretended privy examination, acknowledgment and declaration. (p. 467.)

Green, Judge, furnishes the following statement of the case:

On March 1, 1880, A. W. Rollins, trustee, and Julia Ann Entsminger presented their hill of injunction to the judges of the circuit court of Mason county. The bill stated, that on June 17, 1871, Isaac Entsminger conveyed to A. W. Rollins, trustee, a certain mill and fifteen acres of land in said county for the use of his wife, said Julia Ann Entsminger. On January 23, 1879, her said husband executed to Clark Tillis his note for four hundred and sixty-two dollars payable one year after date with interest from date, to secure the payment of which he executed a deed of trust to James B. Menager, trustee, on the mill and fifteen acres of land and used his importunities to induce the plaintiff Julia Ann, his wife, to sign it also, and she did sign it by making her mark, but she did not sign it willingly but only because of the threats and menaces of her husband, and she so told the justice, who certified the acknowledgment, when she signed this deed. The acknowledgment is in the form required by law. The plaintiffs say, that the note secured by this deed of trust is not signed by her and was signed by her husband only. And the plaintiffs allege, that the certificate of the justice to this deed is fraudulent and void; that she never did acknowledge this deed willingly, all of which was known to the cestui que trust in said deed, Clark Tillis; that: the note or debt secured by the deed of trust was the note or debt of her husband and was a debt, which in no way concerned her or her trustee. The other allegations in this bill it is unnecessary to state, as they are unimportant in this cause. The prayer is, that an injunction may be awarded enjoining any sale of this property under this deed of trust, and that it may be canceled so far as the female plaintiff is concerned and for general relief. Her husband, James B. Menager, the trustee, in this deed of trust and Clark Tillis, the cestui que trust, are made defendants. This bill is sworn to by the trustee A, W. Rollins. The injunction prayed for was awarded, the penalty of the injunction-bond being fixed at fifty dollars.

On April 21, 1880, the defendants, James B. Menager, trustee, and Clark Tillis, filed their joint and separate answers. They admit the conveyance of this mill and fifteen acres of land to A. W. Rollins, trustee, for the use of the female plaintiff, as stated in the bill, admit the giving of the note for four hundred and sixty-two dollars and the execution of the deed of trust, and state that it was duly and legally acknowledged in the manner required by law. They deny in detail all the other allegations above stated in said bill and give the following statement of the facts, viz: that the sole consideration, for which said note was executed to said Tillis, was for money advanced by him to pay off and discharge another lien upon said mill and fifteen acres of land, being a deed of trust for the use of one C. W. Maupin, which note to Maupin was given for money advanced to pay off a note secured by a previous deed of trust executed by the husband of Julia Ann Entsminger, the female plaintiff, to secure a note to one Barritt; that this first deed of trust was executed when this mill and fifteen acres of land belonged to the husband of the female plaintiff before he conveyed it to Rollins for the use of the female plaintiff; and that this four hundred and sixty-two dollars was borrowed to prevent this mill and fifteen acres of land from being sold under this second deed of trust. This answer is sworn to by Clark Tillis. .

The depositions taken in this cause prove, that there was this previous deed of trust in favor of Maupin on this mill and fifteen acres of land; that the payment of this debt to Maupin being urged, Clark Tillis agreed to advance the requisite amount of money to pay it off':; that one undivided half of this mill and fifteen acres of land was to be conveyed to him, Tillis; that, as the amount to be advanced, four hundred and sixty-two dollars, would exceed the one half of the estimated value of this mill and fifteen acres by somewhat over one hundred dollars, Isaac Entsminger, the husband of the female plaintiff, and his wife were to execute a deed of trust on the moiety, which would be still owned by the female plaintiff, to secure this one hundred dollars and upwards; that this mill and fifteen acres were thus to become the joint property of the female plaintiff and of the defendant Clark Tillis; that this money was advanced with this understanding, but with whom it was had is not shown in the evidence, but as it was done to save the property of the female plaintiff from sale it is reasonable to suppose it was done with her approbation. This seems to have been the case from her own statements in her deposition, for she says this money was advanced to pay this Maupin deed of trust, but she thought Clark Tillis, who advanced the money, was to be a partner with her husband in this mill; and she says she offered to sign a deed of trust on half the property to secure this advance. But for some reason not at all explained in the depositions, after the money was advanced, this arrangement, whereby Clarke Tillis was to become owner of half this property and to have a deed of trust on the other half to secure his advance, was broken up, and the husband of the female plaintiff and Clark Tillis agreed, that he should give his note for the money advanced, four hundred and sixtytwo dollars, and that it should be payable in one year after date and be secured by a deed of trust upon this mill and fifteen acres of land. Accordingly this note for four hundred and sixty-two dollars was given by the husband of the female plaintiff to Clark Tillis on January 23, 1879; but she objected to this change in the original understanding and was very reluctant to sign a deed of trust conveying this mill and fifteen acres to secure this four hundred and sixty-two dollars and interest. But she was advised to do so by her two sons, as she herself says. One of her sons states he gave her this advice; the other though examined says nothing on the subject, though he does not contradict her in any of these statements, being asked no questions in relaf.on to her other statements. The other person present whom she calls her son was really her son by another husband, he corroborates his mother in none of her statements, except that he says "the justice asked her if she was willing to sign that deed of trust; her answer was as well as I recollect, 'yes, ' and added to it afterwards 'not with a very clear conscience' or some words to that effect. I have been under the impression that Mr. Smith the justice did not hear it; that the latter part was in a lower tone of voice than when she first spoke. She stepped forward and signed it as she said this." He states also that he advised his mother to sign this deed of trust. It is true that a son-in-law of the female plaintiff was examined and stated, that when the justice was making the examination his mother-in-law said: "I will have to sign this deed but not with a clear conscience." He corroborated his mother-in-law in none of her other statements and said nothing about them. I will say however, from the examination of this witness and from the testimony of others I believe he knows nothing of this transaction and was not present, when it occurred. His mother and one of his brothers-in-law say he was present; but his other brother-in-law and the justice do not remember his being there at all. Clark Tillis corroborates her statement in one other respect. He says that "when the justice Mr. Smith came to the house to get the papers fixed up, Mrs. Entsminger refused to sign it, unless I would take the trust on half the land. I wouldn't agree to take that and started away, and some one called roe and Mr. Smith back, and then she and her husband both said they were willing to give me a deed of trust for the money and did it. After this was agreed upon, I did not heather make any objections." The magistrate Smith corroborates the female plaintiff in nothing. He says: "I asked her if she willingly executed the deed, and she declared to me she willingly executed the same." He further says "I explained to her fully the contents of the deed, and I think I further asked her all the necessary questions, when the deed was acknowledged." One of the sons"...