Eldridge v. Hunter , 125 Tenn. 309 ( 1911 )

Mr. Chief Justice Shields

delivered the opinion of the Court.

Complainants, J. T. Eldridge and Amanda l¡ldridge, husband and wife, bring this bill to have a deed in trust upon their homestead, purporting to have been jointly executed by them, declared void for want of valid privy examination of Mrs. Eldridge, and the foreclosure of the same perpetually enjoined.'

Complainants occupied the land in controversy as a homestead, the title being in the husband, worth less than $1,000, and the only real estate owned by them.

J. T. Eldridge purchased of the defendant certain personal property and agreed to pay therefor $400, for which he executed his note with personal security, and further agreed that he and his wife would secure the same by a deed in trust upon his land. The conveyance was prepared by a notary public and presented to Mrs. Eldridge at her home, in the absence of her husband, and she there signed it and was properly examined touching its execution for a valid privy examination. On the next day Mrs. Eldridge went to the home of the notary public, and upon request the conveyance was given to her that she might consult her brother concerning it, and while in her possession she erased her signature. Afterwards the notary public came to the home of J. T. Eldridge, and the latter, in the presence of Mrs. Eldridge, executed and acknowledged the conveyance, and also re-signed the name of Mrs. Eldridge thereto. No privy examination of Mrs. Eldridge was then made. After this the notary public indorsed the acknowledgment of J. T. Eldridge and the privy examination of Mrs. Eldridge upon the conveyance and it was delivered.

These facts are conceded. There is some controversy whether Mrs. Eldridge authorized her husband to resign the conveyance for her; but the preponderance of the evidence is that she refused to again sign it herself, or authorize her husband to do so for her.

We think that upon these facts there was no valid privy examination of Mrs. Eldridge, and t¡hat the certificate and deed in trust in question are fraudulent and void.

The homestead of the husband and wife can only be conveyed by their joint deed. They need not execute it at the same time; but it is not complete until executed by both of them, and there can be no delivery until this is done.

Married women cannot make a valid conveyance of real estate without privy examination, completed in the form and manner prescribed by the statutes. Signature is the least important part of the execution of a deed by them. Privy examination is the essential part, and until it is made and perfected the deed is of no force. Mount v. Kesterson, 6 Cold., 463; Wester v. Hurt, 123 Tenn., 508, 130 S. W., 842, 30 L. R. A. (N. S.), 358.

The statutes providing for the privy examination of married women to conveyances of real estate require the officer taking the examination to examine them separately and apart from the husband in regard to the. free execution of the conveyance, as there prescribed, and to make a certificate in a form also prescribed, showing the result of his examination, and to indorse on, annex, or attach the certificate to the conveyance, and contemplate that this shall be done contemporaneously with the manual execution by the married woman. The privy examination is not complete until these mandatory provisions of the statutes are complied with, and the certificate, so indorsed, attached, or annexed, is the only competent evidence of compliance. Code, sections 2076-2078 (Shannon’s Ed., sections 3753-3755); Rhea v. Iseley, 1 Tenn. Cas., 228; Mount v. Kesterson, 6 Cold., 463; Currie v. Kerr, 11 Lea, 142.

The action of the officer taking the privy examination is quasi judicial, and can only be impeached for fraud, as is done in this case. Shields v. Netherland, 5 Lea, 193.

When Mrs. Eldridge obtained possession of the conveyance from the notary public, the privy examination had not been reduced to writing and indorsed on or attached to it. It had not been executed by her husband. It was not complete or binding upon either of them. Mrs. Eldridge then had the right to refuse to proceed with the execution of the conveyance, and she did so, and erased her signature. When it was executed by the husband, and her name signed thereto' by him, no further privy examination was taken, and if she had authorized her husband’s action, which she did not, this attempted éxecution would be imperfect and invalid for this reason.

It results that the certificate showing proper execution by Mrs. Eldridge is untrue and fraudulent, and the deed in trust void, in so far as it affects the homestead of the complainants in the land in controversy, and its foreclosure to that extent will be perpetually enjoined.