Stone v. Montgomery

35 Miss. 83

• Court: Mississippi Supreme Court
• Decided: April 15, 1858
• Status: Published

Opinion

ITandt, J.,

delivered the opinion of the court.

The bill in this case was filled by the appellees, to enjoin a sale of certain real estate and a slave, the sole and separate property of Allison Montgomery, the wife of Robert H. Montgomery, and which was embraced in a deed in trust, purporting to be executed by her and her husband, to secure certain debts due upon promissory notes executed by them to the appellant Stone. The object of the bill was also to have the trust deed set aside, and declared inoperative and void, as to the property embraced in it belonging to the wife.

The grounds of objection to the deed stated in the original bill, are as follows, — that the husband was indebted to Stone & Co., in the sum of $1400, and that “there were some moneyed arrangements made between them and the wife, on the 23d April, 1852,” and that Montgomery and wife executed a deed of trust upon her separate property, by which it was stipulated that Stone was to furnish her with certain acceptances, amounting to the sum of $5575.08, for which she executed her promissory notes, signed also by her husband, for certain specified sums; but that Stone only furnished in cash the sum of twenty-five hundred dollars, and that these acceptances were not for the private use and benefit of the wife, but of her husband; that she never intended to become surety for her husband, but believed that giving the deed upon her separate property was a mere matter of form, and was so advised by her husband, and if she had understood the legal effect of the deed, that she never would have executed it.

Further, that the wife was not examined, separate and apart from her husband, in executing the deed, but that she made the acknowledgment in his presence and hearing, and that she was not interrogated whether she executed it, as her voluntary act and deed, free from threats or compulsion of her husband.

It calls upon the defendant to answer specially, among other things, whether the acceptances were for the use of the wife, and whether more than the sum of $2500 was paid to her ? whether she understood the purport of the deed ? whether she was examined apart from her husband, in executing it, and who was present when it was done ? who obtained the acceptances and money, &c. ?

The answer of Stone, states the consideration and circumstances of the deed in trust to be as follow: that at the date of the deed, he was the holder of a note made by the wife, as principal, and the husband, as surety, for $1400, secured by deed of trust upon the same property embraced in this deed, which note and deed in trust •were agreed to be cancelled, and to form a part of the consideration of this deed; that he was also at the same time the holder of a note of the husband alone, which wa's agreed to be cancelled and the amount of principal and interest thereof, $1509.47, by agreement of Montgomery and wife, constituted a further part of the consideration of the present deed ; that these debts were included in the deed in controversy, in order to extend time of payment to them; and that the residue of the consideration of the deed was made up of the sum of $250, then due by the husband for cash previously advanced for him by Stone, and the sum of $2500, then advanced for him, for the purpose of enabling him to carry on the business of keeping up his hotel; and this extension of time, and now advance of money, were given upon the express agreement, between Montgomery and wife, and Stone, that the indebtedness should be secured by the deed in trust, in controversy: and the deed was accordingly duly executed by them.

It further states that, although -when the trust deed was executed, Stone & Co. accepted drafts drawn by Montgomery, for the same amounts as the promissory notes held by Stone, as evidences of his debt, and payable at the same times, yet said drafts were made for his benefit and were never used by the defendant, and are returned and filed with the answer; and it admits that only the sum of $2500 was advanced in cash, at the time of the execution of the deed, but states that the residue of the money for which the notes and deed were executed, was made up of previous indebtedness as above stated ; denies that the wife was ignorant of the legal effect of the deed, and insists that the certificate of the officer who took the acknowledgment of the deed, is conclusive as to the facts therein stated, and not to be contradicted by parol evidence, except for fraud or duress; denies that the deed was not signed, sealed and delivered by the wife, as her act and deed, or that the deed was not fully understood by her.

An amended bill was afterwards filed, which alleges that, although the deed purports to convey all the right and title of the wife to the property, yet that her acknowledgment, as taken and certified upon it, shows a release only of her dower in the property, and that the acknowledgment, — being insufficient to convey more than a dower interest, and she having no such interest in the property, —was ineffectual to convey her real interest, and that the deed was, therefore, inoperative and void as to her. It repeats the allegations of the original bill, in relation to the deed not being explained to her at the time she executed it, and as to her voluntary execution of it, and alleges that she executed it under the influence of her husband and in his presence.

These allegations are denied by the defendant’s answer to this amended bill.

Upon the hearing, the court decreed that the acknowledgment of the wife was illegal, fraudulent, and void, and, therefore, ordered the deed to be cancelled and the sale of the property under it to be perpetually enjoined; from which decree, this appeal is taken.

Several objections are now urged against the obligatory force of the deed, as to Mrs. Montgomery, which we will proceed to consider.

In the first place, it is alleged that the deed is without consideration, as to Mrs. Montgomery. And the first ground taken in support of that view is, that it appears from the deed that Stone had agreed to furnish and deliver to her seven acceptances, for various sums, amounting to $5575.08, for the purpose of enabling her to make certain financial arrangements; and that, for that consideration, and in order to satisfy him for these acceptances, she, together with her husband, executed her promissory notes for the same sums; and to secure their payment, gave the deed in trust; but, that it is admitted by the answer, that these acceptances were never delivered, and, therefore, that Mrs. Montgomery obtained no benefit from the contract, as agreed upon.

It is true that this is the form of the transaction, as stated in the deed; but it is evident, from the statements of the bill, that the giving of the acceptances was merely a matter of form. The inducement to the execution of the deed, is there stated to be the previous indebtedness of R. H. Montgomery, and that “ some moneyed arrangements were made and agreed on by Mrs. Montgomery and Stone,'"’ and the agreement in relation to giving the acceptances is also mentioned. But no objection is made that the acceptances were not given in the mode specified in the deed ; nor is it alleged what was the character of the “ moneyed arrangements” agreed on, and which are stated as having caused the execution of the deed. The complaint is, that the acceptances and accommodations wmre not for the private use and benefit of Mrs. Montgomery, but for her husband; and that she never intended to become surety for him, and to involve her separate estate on that account; and that, acting under his advice, she considered the execution of the deed as a mere matter of form; and further, that Stone only furnished in cash the sum of $2500. The form of giving the acceptances appears clearly to have been waived, and the objection made to the arrangement is, that it was for the benefit of her husband, and not for her separate and individual use, although it is plain from the statements of the bill, that his indebtedness entered into the transaction, and that the moneyed arrangements were made for his accommodation, and by his instrumentality. Therefore, if the “ accommodations” and “ moneyed arrangements,” were made by Stone in good faith on his part, and in a manner satisfactory to the husband, who was intrusted with the interests of his wife in the transaction, it is no objection to the,validity of it, that the form of giving the acceptances was not carried out. If the husband carried out the arrangement and effected the object in contemplation, without the acceptances, and without fraud upon the rights of the wife by Stone, the matter stands in the same position, as to Stone’s rights, as if the acceptances had been given and been applied to the benefit of the husband. This appears to be the aspect of the matter as presented by the bill.

But the answer explains fully the “moneyed arrangements,” as connected with the previous debts, intended to be made, and shows that the husband and wife were jointly liable to Stone for a debt secured by a-deed in trust; that Montgomery was also individually indebted to him on two other notes and an account, and that it was necessary for him to obtain an advance of $2500 for the purpose of carrying on his business; and that, for the purpose of obtaining further time for the payment of these debts, and of giving security for the same, as well as for the sum of $2500 advanced as part of the transaction, the original deed in trust was discharged, the two other notes and account satisfied, and the present deed executed to secure the amount of those debts, together with the sum then advanced in cash : that this was the true character and object of the transaction, and that the acceptances spoken of in the deed in trust were in favor of Stone, and wore never used by him, but are returned and filed with the answer. The original notes and the trust deed, which were discharged by this arrangement, are also returned and filed with the answer. These exhibits show that the acceptances spoken of were payable to Stone, and must have been made for his benefit. He, therefore, held them as evidences of his debt, in addition to the promissory notes which the deed in trust purports to secure, and they cannot be considered as separate securities, intended for the benefit of Mrs. Montgomery or her husband, and to be held against Stone, but must be considered as part of the arrangement by which the debts then due Stone, and the money then advanced by him, were to be secured by the deed in trust. This is the character of the transaction as averred in the answer, and rendered probable by the circumstances shown, and the documents exhibited; and the explanation is not contradicted by the allegations of the original bill, nor denied by the amended bill. And it is evident that the objection of want of a sufficient consideration for the deed, is untenable on the ground stated.

But it is again objected, that as the deed states that the acceptances were given for Tier accommodation, &e., it is not sufficient to show that the consideration was an extension of time of payment of her husband’s debts, upon her executing a deed to secure the payment. If the acceptances and financial arrangements referred to 'in the deed, had reference to the payment or security of the debts of her husband, it was entirely competent for her to bind her separate property by her deed duly executed, as a security for those debts. James v. Fisk, 9 S. & M. 144; Bacon v. Sessions, 23 Miss. 272. And that appears to have been the real character and intention of the transaction, and the object of “ the accommodation,” and “ desirable-financial arrangements,” referred to in the deed.

We, therefore, perceive no valid objection to the deed on, the ground of want of consideration.

The next objection to the deed is, that the wife’s acknowledgment was taken by the officer in the presence of her husband.

The only evidence offered upon this point was the deposition of the officer who took the acknowledgment, and certified that it was made by her on “a private examination, apart from her husband;” and a preliminary question is presented, by the motion made in the court below to suppress this deposition, whether it was competent to examine the officer as a rvitness, to prove that facts stated in his official certificate, and constituting a part of his official duty, were not true as therein stated.

We are of opinion that the officer could not be examined for such a purpose. His official acts are done and certified under oath, and it would be mischievous in the extreme, to permit such a person to appear as a witness and falsify his own solemn act. Such a course would expose weak or dishonest men to the most dangerous temptations, and render the tenure of property unsafe and precarious, by subjecting the evidences of titles under which it is held to the frail and uncertain memory, or to the corruption, o'f officers who have in due form certified the regularity of their acts. Upon the same principle which renders a sheriff incompetent as a witness to impeach his return, the deposition of the commissioner who took and certified the acknowledgment in this case, was inadmissible to contradict and falsify his certificate. Planters' Bank v. Walker, 3 S. & M. 409; 3 Phill. Evid. (Cow. & Hill), 1090, 2d edit.

The motion to suppress this deposition should, therefore, have been sustained.

Again, it is objected that the acknowledgment of the wife, as-taken and certified upon the deed, shows a release only of her dower in- the property ; and as she had no dower interest in it, and it was her property in fee, that it could not operate as a conveyance of her real interest, and therefore that nothing passed by it.

The certificate of acknowledgment shows, that the husband and wife acknowledged that they signed, sealed, and delivered the deed as their act and deed, and that on the same day, “ Mrs. Allison Montgomery, wife of the said Robert H. Montgomery, did, on a private examination made of her, apart from her husband, acknowledge that she signed, sealed, and delivered the same as her voluntary act and deed, and without any fear, threats, or compulsion of her said husband, and in bar of her dower.”

It is insisted that these last words — “ and in bar of Tier dower”— must be understood as qualifying all that precedes them in the acknowledgment; and hence, that the purport of the whole acknowledgment, is but a relinquishment of her right of dower. Hut we do not consider that a just view of the certificate. The first clause of it states that the husband and wife had signed, sealed, and delivered the deed as their act and deed, “ for the uses, purposes, and considerations therein named." And the deed on its face purports to convey the property as her estate. Then follows the statement, that upon private examination, apart from her husband, she acknowledged that she executed it as her act and deed, “ and in bar of her dower.” The language of the latter clause must be taken with reference to the preceding clause, and also with reference to the interest intended to be conveyed, as shown by the deed itself; and so considered, it is not justly susceptible of any other construction than that, on the private examination, she acknowledged that she executed the instrument as her act and deed, for the uses and purposes therein named, which appear by the deed to be a conveyance of the property as belonging to her. As the property was her separate estate, she, therefore, acknowledged that she conveyed it as such, according to the purport of the deed. This was manifestly the object which the parties intended to effect, and the words of the acknowledgment are sufficient for the purpose. The superadded words, “ and in bar of her dower,” do not restrict or impair the acknowledgment already made, but must be understood as intended to release her right of dower, in addition to the estate already conveyed. This is the fair construction of the language used, and these concluding words were, doubtless, used.under the impression that her right of dower had to be released in terms, in addition to her acknowledgment that she conveyed her separate estate. But being useless, under the circumstances in which the title to the property stood, and merely in addition to what was previously stated, they are mere surplus-age, and cannot limit or affect her acknowledgment as to the conveyance of her sole and separate estate, which was complete without them.

The last objection urged against the deed is, that the husband is not a party grantor, and named as such in the body of it; and, therefore, that it is not the joint deed of husband and wife, and is insufficient, under our statute, to convey her separate property. It would bé a sufficient answer to this objection, that it was not set up either in the original nor amended bill. On the contrary, the deed is treated in the pleadings as the joint deed of the husband and wife. But, if the objection had been made in the pleadings, it would be untenable. The property is admitted to belong to the wife, to her sole and separate use; and of course the husband had merely a secondary interest in it. It was her act which was essential to the conveyance. But he signed the deed and acknowledged it as his .act and deed, for the purposes stated in it. That was sufficient to show his consent and co-operation in the conveyance in the most certain form; and the reason of the statute, in requiring the conveyance to be made by the joint deed of the husband and wife, is that it maybe made with his aid and consent. Iiis signing, delivery, and acknowledgment of the deed, would estop him from setting up any claim to the property against the grantee, and show that the title of the wife was conveyed by his co-operation. Under such .circumstances, the deed is sufficient under the statute to convey the wife’s estate. Armstrong v. Stovall, 26 Miss. 275.

With regard to the objection against the validity of the deed on the ground that it was obtained by the undue influence of the husband, there appears to he no evidence to sustain that view, and especially is there no evidence to implicate Stone, or his agent, who attended to the execution of the deed, in any such efforts or intentions. The objection rests solely on the ground that the husband was present in the commissioner’s office, when the acknowledgment of the wife was taken, without any pretence, in fact, that any undue influence was used by the husband. Indeed the original bill appears to be sworn to by the husband alone, and the amended one, which is not sworn to, must be taken to have emanated from the same source as to its allegations. There being, therefore, no .evidence of any imposition upon the wife, especially by Stone, it would be grossly unjust to deprive him of a security taken by him in good faith, and executed, to all appearance, according to the forms of the law, by an officer charged with the duty of seeing that all the requirements of law were complied with, and to cause him to lose his debt, and this at the instance, and for the benefit of the husband, and upon the ground of a presumed undue influence exerted by him upan her in the execution of the deed.

Under these views of the case, the decree is manifestly erroneous ; and it is reversed, the injunction dissolved, and the bill dismissed.