Roy v. Bremond

• Decision Date: 01 January 1858
• Citation: 22 Tex. 626
• Parties: F. S. ROY AND WIFE v. JOHN BREMOND.
• Court: Texas Supreme Court

22 Tex. 626

F. S. ROY AND WIFE

v.JOHN BREMOND.

Supreme Court of Texas.

1858.

This court will not notice any errors, except those assigned, unless they are such as go to the foundation of the plaintiff's action: it follows, that a judgment by default cannot be reversed for the insufficiency of the service, where it is not assigned as error.

Where there was judgment, in a suit on a note and mortgage, against a husband and wife, and, on a writ of inquiry, a verdict establishing their liability; the judgment being before this court on writ of error, the allegation that the mortgage was “duly acknowledged” by the wife, must be held to mean, that it was acknowledged in such manner as to be legally binding on her as her act and deed. 4 Tex. 62;25 Tex. 148; 25 Tex. S. 109; 28 Tex. 523.

ERROR from Travis. Tried below before the Hon. A. W. Terrell. The facts are sufficiently apparent from the opinion.

W. P. de Normandie, for plaintiffs in error.

J. A. and R. Green, for defendant in error.

BELL, J.

This was a suit by the defendant in error, against the plaintiffs in error, upon a note and mortgage, executed in consideration of the balance due on a judgment in favor of Bremond, the defendant in error, against F. S. Roy, one of the plaintiffs in error.

There was judgment by default, a writ of inquiry awarded by the court below, and the verdict of the jury, establishing the liability of both the defendants on the note and mortgage.

The service on the defendants was insufficient, under the rule established by this court, in the case of Graves v. Robertson ( supra 130), decided at the present term. But the insufficiency of service is not one of the errors assigned; and as this court will not notice any errors except those assigned, unless they are such as go to the foundation of the plaintiff's action, it follows, that the judgment of the court below cannot be reversed, for the insufficiency of the service.

There is a question, whether the allegations of the petition are sufficient to authorize the judgment against the wife, Jane Roy, for the foreclosure of the mortgage? The petition alleges, that the mortgage was “duly acknowledged” by both F. S. and Jane Roy, and was recorded, etc. We are of opinion, that the allegation that the mortgage was “duly acknowledged” by the wife, must be held to mean, that it was acknowledged by her in such manner as to be legally binding on her, as her act and deed. It is true that an acknowledgment of a deed by a married woman, in order to be binding on her, must be done in a particular manner, and before an officer authorized by law to receive such acknowledgment. She must be privily examined; she must make an acknowledgment and a declaration. But we do not think it necessary that the petition should set forth all the particulars of the examination, acknowledgment and declaration. We think the allegation that the wife “duly acknowledged” her deed, is sufficient to authorize the introduction of testimony, to show that the acknowledgment was in the manner required by law. To hold such an allegation to be sufficient, can never practically work an injury to the rights of married women. If, in point of fact, the acknowledgment is not in the manner required by law, the courts will always protect the married woman, if she will appeal to them for protection; and no requirement, in reference to strictness of pleading, will ever enable the courts to protect those who do not choose to appeal to them for protection. A majority of the court are of opinion, that there is no error in the judgment of the court below, and the same is therefore affirmed.

Judgment affirmed.

ROBERTS, J. (dissenting).

There is a judgment, by default, in favor of Bremond, against Roy and wife, on the note and mortgage, the rendition of which is assigned as error.

The petition, after setting out a copy of the note and mortgage, purporting to have been signed by F. S. Roy and Jane Roy, his wife, to secure a note given in satisfaction of a judgment against him, makes the following averment: “Which mortgage was duly acknowledged by the said F. S. and Jane Roy, and was recorded in the records of the county of Travis, and will be shown on the trial of this cause.”

The writ of inquiry that was awarded in the cause, does not affect the case; for there were no facts to be ascertained, either as to the note or mortgage, which could not be implied by the default, under our statute regulating that subject. Hart. Dig. art. 812. The question is, whether or not the above averment sufficiently shows the liability of the wife upon the mortgage?

The constitution of the state provides, that “all property, both real and personal, of the wife, owned or claimed by her, before marriage, and that acquired afterwards by gift, devise or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property.” Const. art. 7, § 19, Hart. Dig. p. 73.

In pursuance to this provision, during the first two sessions of the legislature, the laws upon the subject were revised and amended, and others enacted, “better defining the marital rights of parties” (Hart. Dig. p. 737), “to provide for the registration of the separate property of maried women” (Id. p. 840), and “defining the mode of conveying property in which the wife has an interest.” Id. p. 131. The last act prescribes, “that when a husband and wife have signed and sealed any deed, or other writing, purporting to be a conveyance of any estate, or interest in … the separate property of the wife, … if the wife appear before any judge, … and being privily examined by such officer, apart from her husband, shall declare that she did freely and willingly sign and seal the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing, so again showed to her, to be her act, thereupon, such judge, etc., shall certify such privy examination, acknowledgment and declaration, under his hand and seal, by a certificate annexed to said writing, … and such deed or conveyance, so certified, shall pass all the right, title and interest, which the husband and wife, or either of them, may have in and to the property therein conveyed.” Id. p. 131.

There is a rule of presumption which underlies this enactment, and that is, and when the wife acts in conjunction with her husband, she is presumed to act under his influence. Under the common law, strictly, she had no power to contract, and hence the invention of a fine and recovery, as modes of transferring her lands, which she could not do by deed. Shep. Touch. p. 289. Upon the abolition of fines and recoveries in England, a mode of transfer was prescribed for conveying the wife's lands, to which ours is quite, if not exactly, similar. 4 Kent, Com. 497-8-9, and note; Hill, Trust. 405. So far was the presumption of this influence of the husband over the wife recognized, that she was excused from the penalty of various offenses, when committed by her in conjunction with her husband; which exemption has been in effect only modified rather than abolished, in our criminal code. Art. 38.

In subjects of equitable cognizance, this presumption was somewhat relaxed, though not entirely abandoned. Property conveyed to a trustee, to hold for the sole and separate use of a married...