Virginia D. Biggers v. St. Louis Mut. House-Building Co. No. 3

• Decision Date: 08 June 1880
• Citation: 9 Mo.App. 210
• Parties: VIRGINIA D. BIGGERS, Appellant, v. ST. LOUIS MUTUAL HOUSE-BUILDING COMPANY No. 3, Respondent.
• Court: Missouri Court of Appeals

9 Mo.App. 210

VIRGINIA D. BIGGERS, Appellant,

v.ST. LOUIS MUTUAL HOUSE-BUILDING COMPANY No. 3, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 8, 1880.

In the absence of any evidence of fraud or collusion between the grantee and the notary, if the certificate of the acknowledgment of a married woman conforms to the statute, her own unsupported testimony that the certificate is untrue does not make out a prima facie case.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

W. M. ECCLES and D. T. JEWETT, for the appellant: Where the officer fails to acquaint a married woman with the contents of the deed, and to take her acknowledgment of the same upon an examination separate and apart from her husband, the deed and acknowledgment are void.-- Wannall v. Kem, 57 Mo. 478; s. c. 51 Mo. 152; Wag. Stats. 935, sect. 14. A relinquishment of all her ““““right, title, and interest” is not a relinquishment of her dower.--Wag. Stats. 959, sect. 3; Thomas v. Meier, 18 Mo. 573; Thomas v. Hess, 34 Mo. 13.

A. M. GARDNER and F. WISLIZENUS, for the respondent: The unsupported evidence of a grantor in a deed of trust is, as a matter of law, insufficient to overcome the prima facie evidence of the certificate of acknowledgment.-- Blackman v. Hawks, 8 Cent. L. J. 196; Russell v. Baptist Union, 73 Ill. 341; Lickman v. Harding, 65 Ill. 505; Sanborn v. McPherson, 88 Ill. 152; Williams v. Powers, 48 Texas, 141; Louden v. Blythe, 27 Pa. St. 25.

HAYDEN, J., delivered the opinion of the court.

The plaintiff, widow of George W. Biggers, seeks to have vacated and declared void a certain deed of trust made by George W. Biggers in January, 1875, and in which the plaintiff joined, as relinquishing all her interest in the real estate conveyed, on the ground, as alleged, that the certificate of the notary is contrary to the facts; that she was not in truth made acquainted with the contents of the deed by the officer, and was not asked if she acknowledged it, and that in fact she did not acknowledge the deed; that she was not asked if she relinquished her interest in the real estate, and that she did not acknowledge that she made such relinquishment. There was a denial, and upon the hearing the plaintiff gave testimony tending to support the allegations of the petition, and to prove that the notary merely said that he wanted the plaintiff to sign the deed, and pointed to the place; that the plaintiff then signed the deed, and the notary, without anything further passing, took it away; that the deed was not read or its contents explained to her, and that she was ignorant of its contents. The defendant introduced evidence, but the notary was not put on the stand to contradict the plaintiff. There was judgment for the defendant.

The certificate here was in due form, and correct on its face; and in its surroundings nothing appeared to impair its force. There was no evidence tending to prove fraud or collusion as between the grantee and the officer. The grantee accordingly, it must be presumed, accepted the deed on the faith of the certificate. This being the case, as the only testimony attacking the truth of the statements of the certificate was that of the plaintiff, the defendant was not called upon to produce any evidence in rebuttal. There were here no concurring circumstances which tended to support the testimony of the plaintiff. In Bohan v. Casey, 5 Mo. App. 111, it is said, in substance, that there should be such circumstances in addition to the testimony of the grantor. In the absence of such circumstances, and of any...