Steffen v. Bauer

• Decision Date: 31 October 1879
• Parties: STEFFEN et al., Appellants, v. BAUER.
• Court: Missouri Supreme Court

70 Mo. 399

STEFFEN et al., Appellants,

v.BAUER.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bates Circuit Court.--HON. WM. S. SHIRK, Judge.

REVERSED.

Action by Henry Steffen and Mary, his wife, against John P. Bauer and Wm. Page to set aside a deed of trust on land, the title to which was vested in said Mary. Page was trustee and Bauer beneficiary in the deed of trust.

C. C. Bassett for appellants.

Wm. Page for respondents.

NAPTON, J.

This was an application to a court of equity to set aside and declare void a deed of trust executed by plaintiffs to secure three notes given by the husband, Henry Steffen, to the defendant, Bauer, on the ground that the certificate of the notary was false in point of fact, and that no such privy examination as the statute requires was in fact made. The bill also prays for a cancellation of the notes, on the ground that the maker, Henry Steffen, was deceived by the defendant, Bauer, in regard to the condition of his indebtedness, and because the notes were executed under the influence of threats of criminal prosecution. The answer of Bauer denies the facts alleged, both in regard to the deed and the notes, and avers that the land did not, in equity, belong to Mrs. Steffen, but was bought with her husband's money and the title put in her to defraud his creditors, and in conclusion, prays the court that “in case it should find that said deed of trust was not properly executed, then that the court will ascertain the amount to be due him by plaintiff, and will declare said Mary Steffen to hold the said land in trust for her husband, and will order said land to be sold to satisfy the debt due him by plaintiff, Henry Steffen.” Page, the other defendant, was the trustee in the deed, and his answer is merely formal. The court found the issues for defendants, and, therefore, dismissed the bill with costs.

1. MARRIED WOMAN'S DEED: impeachment of certificate of acknowledgment.

We are unable to concur with the circuit judge in his finding on the first point in issue. This disagreement is not on account of any preponderance of testimony, one way or the other, in which event we should let the verdict of the court, who heard the witnesses, stand, but it is because we are disposed to adhere to the decision of this court in Wannell v. em, 57 Mo. 480, and Sharpe v. McPike, 62 Mo. 300, whilst the circuit court probably preferred the more liberal interpretation of the statute which has prevailed in the Supreme Court of Illinois. Monroe v. Poorman, 62 Ill. 524. In our court it was observed, (see Wannell v. Kem, 57 Mo. 481,) “our statute laws point out and direct the mode, and the ony mode, in which a married woman can convey her lands, and particularly specifies the duty of the court or officer before whom the acknowledgment is taken, and the character of the certificate to such acknowledgment. The certificate must substantially conform to the requirements of the statute, and the facts certified to must, of course, be true and not false. The certificate, if substantially in compliance with the law, is sufficient evidence of the wife's acknowledgment, but it is not conclusive, and may be shown on a proper issue to be false.”

On the other hand, in the case reported from the Illinois Supreme Court above referred to, it was held that, “where the certificate of the acknowledgment of a deed is in conformity to law, it can only be impeached for fraud or imposition. The certificate must be judged of by what appears on its face. Therefore, proof negativing the necessary facts shown therein, will not alone be sufficient to impeach the certificate.” This decision seems to have been followed in effect in the subsequent cases of Marston v. Brittenham, 76 Ill. 611, and McPherson v. Sanborn, 88 Ill. 150, and several other cases therein cited.

In the present case there were two or three facts established by the evidence which clearly showed that our statute was not complied with, although not the slightest fraud or imposition was practiced by any one, either the husband, the creditor or notary. The wife was not examined “separate and apart from the husband.” All the five persons present, the notary, the defendant, Bauer, the plaintiff, his wife and her brother, agree that the plaintiff and his wife were both in the room when the wife signed the deed, some say about four feet apart, others six feet; but whether four or six feet from each other, they were in full view and hearing of each other, and could have no difficulty in communicating with each other both by looks and words. I do not suppose it necessary to a compliance with the law that the husband should be in a different house, or necessarily in a different apartment, if the circumstances show an absence of all power of communication with each other. But it is obvious that in the kitchen or cooking room of a small farm house, where this acknowledgment was taken, the presence of the husband within a few feet of his wife did not amount to the separation and privacy required by our law.

Again, it appears from the testimony of the notary who took the acknowledgment that the wife was not “made acquainted with the contents of the deed.” His statement is this: “I then read a portion of the deed to Mrs. Steffen, and then told her I supposed she understood what it was for; she said she did, and she hesitated a little, but finally signed it; after she signed it, I asked her if she acknowledged it to be her act and deed, and she said yes. I don't remember that I said anything more.” It was observed on this subject in Wannell v. Kem: “The Legislature has required, for good reasons, a privy examination, and an explanation on such privy examination of the contents or purport of the deed. The courts have no power to say that those things in a particular case were unnecessary, on the ground that the facts in such case were, that there was no compulsion, and the wife was really entirely familiar with the deed and executed it without the slightest improper influence from her husband. The object of our statute is to prevent imposition on the wife in the disposition of her land, and, therefore, it is not intended to leave it in the power of the husband to explain to his wife the object and purport of the deed, but to require a disinterested officer or court to make to her whatever explanation is necessary, and to ascertain her willingness to sign the deed. If a previous examination by the wife of a deed which she is called upon to acknowledge, is all that is necessary, it would be in the power of an unscrupulous husband to procure her acknowledgment to a different deed from the one previously explained to her, in case the signature is made...