Wester v. Hurt

• Decision Date: 01 October 1910
• Citation: 130 S.W. 842
• Court: Tennessee Supreme Court
• Parties: WESTER et al. v. HURT et al.

Page 842

130 S.W. 842

WESTER et al. v. HURT et al.

Supreme Court of Tennessee.

October 1, 1910.

Appeal from Chancery Court, Roane County; Hugh G. Kyle, Chancellor.

Suit by Parlee Wester and others against Reuben Hurt and others. Certiorari to a decree of the Court of Civil Appeals, reversing a decree of the chancellor dismissing complainant's bill. Affirmed.

Gideon Hill, for complainants. Staples & Stone, for defendants.

LANSDEN, J.

This case is before us upon a certiorari to a decree of the Court of Civil Appeals, reversing the decree of the chancellor, dismissing the complainants' bill.

The facts necessary to be stated are that Mrs. Wester is the owner of a small tract of land in Roane county, and she joined her husband in a deed of trust for the purpose of securing a debt which her son owed to the defendant Hurt, and after signing the deed it was taken to the notary public, who called Mrs. Wester over the telephone and attempted to take her privy examination by a conversation in this way. The Court of Civil Appeals held that this acknowledgment was invalid, and granted to Mrs. Wester the relief she prayed by canceling the deed of trust.

The deed of a married woman living with her husband, conveying her general estate, is void without her privy examination. The form of this examination is prescribed by statute (Shannon's Code, § 3753), and every material part of this form is necessary to make the probate of the deed valid upon its face. The action of the officer taking the acknowledgment is a judicial one, and establishes by judicial force: (1) That there was a personal interview between him and the bargainor; (2) that this interview was private and apart from the husband; and (3) that the execution of the deed was confessed to have been made freely, voluntarily, and understandingly, and without compulsion or constraint from her husband, for the purposes therein contained.

When a deed has a certificate attached to it, containing all of the material parts prescribed by the statute, and signed by the proper officer, it establishes the probate of the deed as a matter of judicial determination, and this probate cannot be attacked by extrinsic evidence showing any mere irregularity. It can only be overthrown by proof of fraud or duress, and by a causal connection of the grantee with the fraud.

These conclusions are abundantly established by all of our authorities. It is clear that if the officer taking the privy examination of the married...