Wannell v. Kem

• Decision Date: 31 October 1874
• Citation: 57 Mo. 478
• Parties: THOMAS WANNELL, Appellant, v. SAMUEL KEM, et al., Respondents.
• Court: Missouri Supreme Court

57 Mo. 478

THOMAS WANNELL, Appellant,

v.SAMUEL KEM, et al., Respondents.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Louisiana Court of Common Pleas.

Henry D. Laughlin, for Appellant.

I. The instructions put the case to the jury on the theory that Kem had the right to rely solely upon Brolaski's representations, whether other means of information were at his disposal or not; and that it was only necessary for the jury to believe that he did so rely, to entitle him to a verdict. This is not the law. (Langdon vs. Green, 49 Mo., 363; Holland vs. Anderson, 38 Mo., 56; Bryan vs. Hitchcock, 43 Mo., 527; McFarland vs. Carver, 34 Mo., 195; Fish vs. Cleland, 33 Ill., 238; Miller vs. Young's adm'r, 33 Ill., 355; Mitchell vs. Deeds, 49 Ill., 416; Miller vs. Craig, 46 Ill., 109; Eames vs. Morgan, 37 Ill., 260; Belden vs. Henriguez, 8 Cal., 89; Barton vs. Simmons, 14 Ind., 49; Wagn. Stat., 1021, § 49.)

Fagg & Dyer, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

This was an action on a note for $8,000, given in consideration of 160 shares of stock in the “Mo. Gas Works Building Co.,” signed by defendant Kem and his wife, and secured by a deed of trust on Mrs. Kem's land in Pike county.

The defense was, that Brolaski, the vendor of the stock, to whom the note and mortgage were given, had made false and fraudulent representations in regard to its value, and the condition of the company; that the purchaser relied solely on these representations, and that the stock was really of no value, and therefore, the note was without consideration.

On the part of Mrs. Kem the additional plea was made, that the acknowledgment of the deed on her part was not made according to law; that there was no privy examination of her, separate and apart, from her husband, and that the contents of the deed were not explained to her by the notary.

These issues were tried by a jury, and a verdict rendered on each for the defendants. The propriety of the judgment based on this verdict is denied in this court on two grounds only; one, that the court excluded testimony offered which ought to have been admitted, and admitted testimony which ought to have been excluded; the other, that the instructions of the court to the jury were erroneous.

So far as Mrs. Kem is concerned, her testimony was clear, that her husband was present during her examination by the notary, and that the notary gave no explanation or information to her of the contents of the deed she signed. The notary, however, testified precisely to the contrary, that she was examined separate and apart from her husband, and that he explained to her the purport of the deed. There is no possibility of reconciling these conflicting statements, and it was a simple question of credibility with the jury, and the verdict of the jury cannot be disturbed here on this point.

But there were various questions propounded to Mrs. Kem on her cross-examination, which were excluded by the court, and the exclusion of these questions is properly a matter for our consideration. These questions were as follows: 1. Did you know at the time you signed this deed (showing the mortgage deed to witness) what it contained? 2. Had you ever seen the mortgage before the notary came to your house to take the acknowledgment? 3. Had you ever read the mortgage before the notary came to your house? 4. Did you know for what purpose you executed the paper, before your acknowledgment was taken? 5. Did you know for what purpose the notary came? 6. I will now ask you if the paper (the mortgage) was your voluntary act and deed for the uses and purposes mentioned in it, and did you not execute it for those uses and purposes freely, without fear, without compulsion, and without any undue influence on the part of your husband? 7. Did you not see the mortgage, after the acknowledgment was taken, in the possession of your husband, and did you not know that he intended to take it to St. Louis and did take it there to deliver to Brolaski to secure him on the payment of the note? 8. Did you not execute this deed voluntarily? These questions were all excluded by the court, and Mrs. Kem was not allowed to answer them or any of them. Exceptions were taken to this ruling.

Our statute laws point out and direct the mode, and the only 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. This 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.

In this case the wife testified to the falsity of the certificate in two material particulars, one of which was, that there was no privy examination by the notary at all; and another was that she was not made acquainted by the notary with the contents of the deed; and she further declared that she was not asked if she executed the deed voluntarily and without compulsion or undue influence of her husband. The questions propounded to her, and which the court excluded, were designed to show her knowledge of the deed, previous to her examination, and subsequent to it, and that in point of fact, she was not at all influenced by any compulsion or improper means by her husband.

We think these questions were properly excluded. 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 lands, 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 first in the presence of the notary, and in cases where she had signed before seeing the notary, it would be also in the power of the husband to misrepresent to her the object and effect of the deed.

To prevent any such imposition on the wife, it was therefore provided, that a specified officer or court should examine the wife, separate and apart from her husband, and on such examination should explain to her the object of the instrument proposed to be acknowledged, and should ascertain in this way, that the wife was not unduly influenced by her husband, and certify to those facts in his certificate of acknowledgment.

The history of this case shows how this question arose and, perhaps, even explains the finding of the jury under the instructions of the court. The original certificate of acknowledgment, in this case, was simply one of the ordinary character of acknowledgment, where the party was not a married woman. Nothing whatever was stated in regard to a privy examination; nothing relative to an explanation of the deed; nothing in regard to the absence of undue influence. This was so obviously defective, so far as the wife's estate is concerned, that a bill was filed to get a decree or order from the Circuit Court in the exercise of its equitable power to procure a correction of the certificate. This court, however, on a review of this case, decided that the courts had no power over such mistakes, but intimated that the notary--the officer who took the acknowledgment--might correct the certificate, if, in point of fact, this privy examination, explanation, etc., had been made. (Wannell vs. Kem, 51 Mo., 150.) The subsequent certificate which the notary substituted for the original one which he erased, was accordingly, long after the acknowledgment, appended to the deed, conforming exactly to the requirements of the statute in regard to passing the estate of a married woman.

If we assume this last certificate as true, and stating the facts as they occurred, it is plain that the notary, at the date of his examination and certificate, was perfectly aware of what was required by the statute, and it is remarkably strange that his first certificate, given at the very time when all these transactions occurred, should have omitted all notice of them entirely.

Errors might have been committed in point of form, or even mistakes in point of law; but how the notary, after having made a privy examination, and learned the total absence of influence on the wife, or having given an explanation to her of the contents of the deed, should have totally omitted all mention, or attempt to mention, however imperfectly, any of these things which the notary knew were necessary, (or he would not have made them) is, to say the least, difficult to account for, and it is not surprising under these circumstances, that the jury found for the defendant, Mrs. Kem.

However this may be, the verdict in this case was for Mrs. Kem, and under proper instructions on this point, as will be seen upon an examination of them as hereinafter copied, and cannot therefore be disturbed; and this verdict and judgment in truth renders the deed of mortgage void as to the husband as well as the wife. (Wagn. Stat., p. 935, § 14; Wannell vs. Kem, 51 Mo., 152.) But as the plaintiff has...