Garth v. Fort ( 1885 )

Tu\RtJEY> J.,

delivered the opinion of the court.

In August, 1867, J. B. Fort died intestate, in Robertson county, leaving four children, viz: J.W. and J. H. Fort, Mrs. Garth and Mrs. Ligón. The children agreed to partition the lands, and on December 4, 1867, a deed interpartes to that end was prepared and purports to have been acknowledged by Mrs. Garth and Mrs. Ligón, on December 20, 1867.

Mrs. Ligón lived in Montgomery county; Mrs. 'Garth in Robertson. The other ' parties acknowledged the deed at different times.

It is claimed that on January 11, 1868, S. M. Ligón, with his wife, conveyed the parcel of land allotted to her, to J. W. Fort. The deed purports to have been acknowledged on privy examination by Mrs. Ligón, on April 23 or 25, 1868.

Mrs. Ligón died in 1871. Ligón died since the •case was appealed to this court.

The children of Mrs. Ligón filed this bill in February, 1876, to stay waste, remove cloud, etc., making their father and the purchasers of the land defendants.

The clerk of the county court of Robertson county appointed W. R. Saddler, a justice of the peace for that county, to take the privy examination and acknowledgment.

The first question to be answered is, was the privy examination, etc., had in Robertson county? Upon this inquiry the proof is quite conflicting, respectable and credible witnesses testifying on each side of the issue.

It is admitted that Saddler took the acknowledg-meats to both deeds — one at bis own home, and the other at the home of Mrs. Ligón; that he was sick at home when ■ he took one of them, and Mrs. Ligón sick at her home when he took the other, but it is controverted which.

The witnesses being equally credible, we must look to such circumstances as tend to strengthen the one side or the other. The attending physician proves that Saddler was sick, and that he visited him at his house on December 20; that he was his regular physician, and visited him in January, February and August, 1868; that during that and the preceding year he visited other members of Saddler’s family; that his books show the times of his visits, and to whom made.

S. M. Ligón, the husband, says: “ I kept a diary, generally as a farm diary, which enabled me to recollect and fix dates,” and has it with him. The memoranda were made at the time, and are true. He says, Mrs. Ligón had an attack of apoplexy on the morning of January 4, 1868, and was never well afterward; at the time the deed to Fort purports to have been acknowledged, Mrs. Ligón was at home? one of her children (Matt.), was very sick; that Saddler came to his house about April 25 for the purpose of taking the acknowledgment, and said he came at the request of Fort; that Dr. Beaumont visited the child on April 23; Mrs. Ligón went to E. A. Fort’s, which was in Saddler’s neighborhood, on the 16th and returned December 17, 1867 ; Mrs. Ligón was in bed at the time of acknowledgment; she was feeble, mentally and physically, if not insane, after the attach, and was never left alone.

These facts are corroborated circumstantially by others who were about the house or of the family, at the time mentioned, and we think show satisfactorily that Saddler took the acknowledgment to the partition deed at his home .while he was sick, and to the Fort deed at Mrs. Ligon’s home, in Montgomery county, when she was sick, and if so, the latter is void.

"We next inquire, was the privy examination as required by law? The certificate by the commissioner is that he has “ taken the examination of Mrs. S. C. Ligón separate and apart from her husband as to her free— in signing the above deed. This, April 25, 1868.”

At the January term, 1876, of the county court, under proceedings for the purpose, the certificate was made to conform to the statute. This would do, provided the examination wras properly taken, but an improper certificate made by mistake. A proper certificate cannot cure an imperfect or insufficient examination.

The commissioner is examined, and says Mrs. Ligón ■did not read the deed; he did not read it to her; that he supposed she understood what she was about; •had but little conversation with ■ her; did not have the statute before him at the time, but wrote from memory; that when the amendment proceedings were being had he had no more distinct recollection of what had passed than he now has.

If tie commissioner wrote, as he says, from memory, we must presume that he examined in the same way, ;and that his memory was no better when he examined than when he wrote, especially when the two ■constitute but one act. The guard thrown around the married woman by the law, requiring the privy examination, is intended to furnish her the means of information necessary to a perfect understanding of the .act she is called on to perform, and to protect her against her own ignorance of what may be the legal effect of her act, as well as against the superior knowledge, cunning and undue influences of others. Each of the qualifying words in the statute is essential to the validity of the deed of a femme covert. The absence of any one of them vitiates the deed. Such defects and omissions cannot be cured by subsequent amendment, however solemn, formal and free.

To the objection that the commissioner cannot be ■examined to impeach his official acts, there are two .answers: First, he was called by the objecting party, and second, any evidence going to show a want of the invalidity of the privy examination is competent, and we know of no rule excusing an officer from stating such facts as will go to show a failure on his part to do his duty. The objection is made for the first time in this court, and could not avail any way.

The defense of the statutes of limitation of three and seven years, cannot avail under the construction given to the act of 1849--50, Code, 2481. In Lucas v. Rickerich, 1 Lea, 728, this court says: “In Coleman v. Satterfield, et al., 2 Head, 264, this statute is correctly stated to have changed the common law by forbidding the sale of his (the husband’s) interest during her (the wife’s) life for his debts, and also disables the husband from selling such interest unless she joins in the conveyance. This, we have several times held, was the only effect of the statute, and that it did not create a technical separate estate in the wife. This being so, it follows, the rights of the husband as to rents and profits are not affected by the statute, and remain as before its passage.”

If we adhere to this interpretation, it must result, that in order to secure the rents and profits, the husband must, of course, control the use and occupation, and that he is also, during the life of the wife, tenant by curtesy initiate, and upon her death, after issue born alive, he is tenant by curtesy. To them it must also result' that while his attempt to sell is void, still if he put the purchaser in possession, that purchaser is his tenant, whose entry and possession is not a disseizen of the wife, even if we should hold it a disseizen of the husband, which I think it is not, but as the sale is void, he is a tenant at will, or at most, from year to year, of husband and wife. However this may be, the husband, being entitled as already defined, may put him in possession, and he holds alone under the husband, and only such interest as the husband had, and cannot be disturbed in his possession by the heir of the wife, as such, until the death of the husband, who having died aftér the wife, and since the commencement of this suit, no statute interferes with the rights of complainants, who had the right, as they have prayed, to stay waste, to remove cloud,” etc., during the life of the husband, and to have their rights ascertained.

Under the rules, several times announced by this court, the defendants are entitled to compensation for such permanent improvements as they may have placed upon the land before the filing of this bill, the value to be fixed at the time of the surrender of possession, and to be estimated for their enhancement of the value of the real estate at that time. They will account for rents from the death of Ligón. They are not entitled to a decree or lien for the purchase money paid to Ligón. Complainants are guilty of no fraud;they nor their mother received any of the purchase money. The defendants acquired no more than Ligon’s interest. They have the covenant of Ligón, and must loolc alone to it.

Decree reversed. Exceptions to report allowed. Decree here for complainants, with costs, and cause remanded.