Fisk v. Stubbs , 30 Ala. 335 ( 1857 )

WALKER, J.

Under the decision in the case of Horton v. Sledge, 29 Ala. 478, the deeds from Fisk to Lewis and from Lewis to the complainant will be classed with that kind of conveyance under which they may be operative. — Augustin v. Simmons, 3 Porter, 69. If those conveyances were voluntary, they would be void against existing creditors. If it be conceded that they would also be void as to subsequent purchasers without notice, it will not benefit the defendants, who cannot be regarded as purchasers without notice, because both deeds were duly recorded. Therefore, by the conveyance to Lewis, and by Lewis to tbe complainant, the title to the land vested in the latter, as against Stubbs and his vendee.

The remaining question in the case is, whether the title passed out of the complainant by a conveyance which can be avoided in this case. There can be no doubt that the conveyance of Feb. 11, 1850, by Lewis to the complainant, invested her with a separate estate by virtue of the act of March 1, 1848. — Davis v. Foy, 7 Sm. & Mar. 64; Frost v. Doyle, ib. 75 ; Berry v. Bland, ib. 77. The title thus obtained was 'transmissible, after Feb. 13,1850, under the fifth section of the act of that date, by the joint deed of herself and her husband. Consequently, the joint deed of complainant and her husband of the 10th June, 1851, which was acknowledged by her, on private examination before a justice of the peace, in the mode pointed out in the act of 1843, (Clay’s Digest, 155, § 27,) defeats any claim by her to the land, unless it is avoided on some one of the grounds set up in the bill.

Passing by the question of infancy, we proceed to consider whether the deed was procured by duress ; and if so, what is its effect in this ease. The deposition of Sarah J. Smith proves, most clearly, that the complainant’s signature to the deed of herself and husband to Stubbs was extorted from complainant by a threat from her husband, which implied peril to her life. The defendant examined as a witness the justice of the peace who took her acknowledgment, and proved by him, that the complainant acknowledged the execution of the deed, without any fear or threats of her husband, and that she signed the deed in his presence, after a private conversation with her husband, no other person being in the room at the time. Indeed, the same-thing is substantially proved by Mrs. Smith, the complainant’s witness. But Mrs. Smith proves, also, that before the complainant’s husband had brought the justice of the peace to her house, where the deed was signed, she had promised to sign it, under the influence of his threats; and that the witness, after the justice came, persuaded her to sign the deed, as the means of avoiding her husband’s violence. The testimony of Mrs. Smith is not contradicted by any other witness, and she is not discredited. Upon her testimony, we must decide that the complainant’s signature was procured by duress. Answers on oath were waived; consequently, the testimony of one witness is sufficient, even though the denials had been positive -and upon knowledge.

The statute, requiring a private examination of a feme corert, does not apply to conveyances under the fifth section of the act of February 13, 1850. The act of 1843 (Clay’s Digest, 155, § 27) applies by its terms to deeds by the wife, and is not applicable to conveyances of the wife’s separate estate by husband and wife, made under the authority of the statute of subsequent date. The said act of 1850 includes personal property, as well as real estate ; and if conveyances under this latter act were required to be acknowledged in the manner pointed out in the act of 1843, a deed for chattels would require to bo acknowledged on private examination. The act of 1850 makes no distinction as to the mode of acknowledgment by the husband and wife, and it would be most unreasonable to say that the husband must be privately examined. Moreover, the act of 1850 prescribes that the deed be executed, proved, and recorded, but not that it bo acknowledged. For these reasons, we conclude, that the separate examination of the complainant by the justice of the peace was without the authority of law, and has not the binding effect of a judicial proceeding. 'Whether the separate examination of a feme covert, in a case authorized by law, would estop her upon the question of duress from her husband, is a question which does not hero arise, because the separate examination in this case was neither required nor authorized by the statute, and the assumption of authority to take such an examination cannot operate an estoppel.

The deed, having been obtained by duress, must be set aside. — 2 Story’s Equity, § 700; Burt v. Cassety, 12 Ala. 734.

The facts set forth in the bill, and proved, show that the complainant’s husband is an unfit person to be the trustee of her separate estate. If be has not abandoned her, in the strict sense of the word, he has at least left hex’, and is an habitual drunkard. When he was living with her, he treated her with such harshness and violence as to keep her in constant alarm; and, instead of protecting her separate estate, he has extorted from her by threats a conveyance of it. Under these circumstances, he must be removed from the office of trustee, and the complainant must be invested with the authority mentioned in section 1995 of the Code. — Andrews v. Andrews, 28 Ala. 432.

The decree of the court below is reversed; and this court, proceeding to render the decree which the court below ought to have rendered, doth order, adjudge, and decree, that the deed of complainant and her husband, Jacob II. Fisk, to Theodore B. Stubbs, of the 10th June, 1851, for the land described in the complainant’s bill, be set aside and annulled, as to the complainant, and the title to said land vested in complainaixt as her separate estate ; that Jacob II. Fisk, the husband of complainant, shall no longer have any control over the complainant’s separate estate, or the rents, issues, and profits thereof; that complainant shall, henceforward, have the same control over her estate as if she were a feme sole, and may sue or be sued in her own name, but that her said husband shall not be liable for her acts or contracts; that the defendant John Siotler shall deliver to the complainant the premises described in her bill; that a writ of habere facias possessionem, in favor of complainant, and against said Sietler, may be issued by the registrar of the chancery court of Montgomery, for the said land; that the defendant Stubbs shall pay the costs of this court, and that the defendants Fisk and Stubbs shall pay the costs of the court below in equal proportions.