Waltee v. Weaver

57 Tex. 569, 1882 Tex. LEXIS 181

• Court: Texas Supreme Court
• Decided: November 10, 1882
• Docket: Case No. 1312
• Status: Published

Opinion

Stayton, Associate Justice.

The rule more than once announced by this court is, that the certificate of the officer to the separate acknowledgment of the wife to a deed is conclusive of the facts therein stated, when the conduct of the grantee is in good faith, and he pays a valuable and adequate consideration for the property. Hartley v. Frosh, 6 Tex., 216; Wiley & Co. v. Prince, 21 Tex., 640; Kocourek v. Marak, 54 Tex., 201; 2 Bishop’s Law of Married Women, 483.

As it is the acknowledgment, and not the signature, which passes the title in a conveyance by a married woman, it is of the utmost importance to give to the certificate which evidences the acknowledgment entire faith, in the absence of fraud or duress.

The averments of the petition are very meager. There is a general averment of fraud in the purchasers, but in what that fraud consisted is not stated, and the evidence shows nothing of the kind.

She alleges that her husband told her the deed was given only as a security for a loan of money, but she does not aver or prove that such declarations were known to the purchasers.

She alleges that she feared her husband, but she does not aver any act or word of his which induced such fear, nor does the evidence show anything of the kind.

She alleges that she did not understand the effect of the deed, nor the explanation thereof by the officer who made the privy examination. Under the established rule, this she cannot be heard to say in the absence of fraud or duress.

The testimony, however, showTs that the deed was carefully explained to her by the officer who took her acknowledgment, through an interpreter of her own selection; that she stated he spoke her language, and she cannot be heard to say that he was incompetent or corrupt, nor that he failed to correctly interpret.

It would certainly have been more regular for the officer to have sworn the interpreter, as under the law he now has express power to do. R. S., 4321.

The officer seems to have used great care, and there is evidence tending to show that Mrs. Waltee may have understood him otherwise than through the interpreter.

The court did not err in overruling the objection to the testimony of the witness Weaver, for taken altogether his testimony was simply a narration of what transpired at the time the deed was acknowledged, rather than a statement that he knew that the interpreter made a true interpretation.

The whole of the evidence renders it highly improbable that the averments of the petition, general as they are, have any foundation in fact, and the verdict must stand.

The judgment is affirmed.

Aefibmed.

[Opinion delivered November 10, 1882.]