Robert O. Love et al. v. William Taylor et al., 26 Miss. 567

Mr. Justice Handy delivered the opinion of the court. The first question presented in this case is, whether the appellants are entitled to have the lands in controversy subjected to a resulting trust in their favor, against the appellees Wade and Watt.

It appears by the pleadings and proofs, that in the year 1828, the father of the appellants placed in the hands of their aunt, Elizabeth McCulloch, who afterwards married one Taylor, a sum of money for the purpose of purchasing the tract of land in controversy, for the use and bénefit of the appellants; that she made the purchase, but took the deed in her own name; that she repeatedly declared that she held the property for the use and benefit of the appellants; but that in the year 1841, after she had intermarried with Taylor, by the joint deed of her husband and herself, the lands were sold and conveyed to the appellees Wade and Watt for the sum of $>10,000, who are charged to have had notice of the condition of the title and of the appellants’ equity; that this deed was executed by the wife of Taylor against her strenuous objection, and by coercion of her husband, of which Wade and Watt are also alleged to have had notice.

These charges of notice of the appellants’ equitable claim to the property, and of the deed being executed by the wife through the compulsion of her husband, are fully denied by Wade and Watt, and are not sustained by evidence! The testimony of Mrs. Taylor, taken in behalf of the appellants, goes far to establish that notice of the trust was given to Claiborne, who was concerned in the purchase. But conceding that Claiborne was the agent of Wade and Watt in purchasing the lands from Taylor and wife, his deposition positively and circumstantially contradicts the testimony of Mrs.

Taylor, and shows that, when called on by him in relation to selling the land, she expressed her willingness that the sale should be made, and stated that the title was good. Her testimony, then,- cannot prevail against the answer of Wade and Watt, and thfey must be regarded as purchasers without notice of the equity of the appellants arising from the trust, and as such are entitled to protection. Freeman’s Ch. R. 460.

There is no evidence whatever showing that they had any connection with the alleged coercion on the part of Taylor in obtaining his wife’s execution of the deed, or that they had any notice that it was practised. Having purchased the property for its full value, from the parties who held the legal title, and without notice of the secret equity of the appellants, or of any impropriety in obtaining the wife’s execution of the deed, they thereby obtained the legal title bond fide, against which the equity of the appellants cannot prevail.

The next objection urged to the deed to Wade and Watt is, that it was acknowledged before an officer who purports to have acted as a justice of the peace of Adams county, the lands lying in Wilkinson county; and that the act of the justice of the peace under such circumstances was unauthorized by the statute (Hutch. Code, 605), and void.

This question has been recently considered and decided by this court, and it is held that, under our statutes, notaries-public were empowered to take acknowledgments of deeds for lands lying out of the county of their residence, and that justices of the peace ex officio possess all the powers belonging to notaries-public, and that an acknowledgment like the present must be-considered as having the same effect as if done in form by a notary-public. Dennistoun v. Potts, ante, p. 13. And we are satisfied that this rule is correct.

Another objection raised to the title of Wade and Watt is, that, having obtained their title to the lands in payment of a preexisting debt, they are not entitled to protection as bond fide purchasers without notice. It appears by the evidence, that, so far as Taylor and wife were concerned, they received a present consideration by land and other property, given in payment of the purchase-money; that Wade and Watt had a mortgage on a tract of land, which was conveyed to Taylor in part payment of the purchase-money, which mortgage appears to have been discharged in the transaction.

It is now well settled, that if a party take a security or specific property in satisfaction and discharge of a preexisting debt, which is. thereby extinguished, he is a bond fide purchaser, and not affected by previous equities. Swift v. Tyson, 16 Peters, 1-24; 11 Serg. & R. 377; 6 Wharton, 220; Brush v. Scribner, 11 Conn. 388; 3 B. Monr. 629; 11 Ohio, 172. This is the rule in regard to negotiable securities, aud no reason is perceived why it is not applicable to the purchase of lands. Padgett v. Lawrence, 10 Paige, 180; Dickenson v. Tillinghast, 4 Ib. 221; Clark v. Flint, 22 Pick. 243 ; Morse v.

Godfrey, 3 Story, R. 390; Upshaw v. Hargrove, 6 S. & M. 292. The remaining objection urged against the deed to Wade and Watt is, that the certificate of acknowledgment does not show that the wife was “privately examined” when the acknowledgment was made by her.

The certificate states that the “ said Elizabeth, being examined separate and apart from' her husband, acknowledged that she' signed, sealed, and delivered the same voluntarily, without any threats, fear, or compulsion of her said husband.” This objection presents a question of the greatest practical importance, not only in reference to the present case, but to the community, as affecting a large number of estates held by meritorious purchasers. It has, therefore, received from the court the most careful consideration. The former decision made in this case, and that in the case of Warren v. Brown, 25 Miss.

R. (which should not have been reported after the reargument was ordered in this case), have been very materially feexam-ined, with reference to the true principles governing the subject, and many adjudications touching it in other States of the Union upon similar statutes. It appears to be almost universally held, that a literal conformity to the words of the statute, in such cases, is not required, and that if its requisites are substantially complied with, it is sufficient. What, then, is substantial compliance with the statute?

In order to'settle this, we must consider what particular evil was intended to be prevented, and what object was intended to be promoted. There is no difficulty in declaring that the object intended to be promoted was the free, voluntary, and unconstrained act of the wife; and that the evil intended to be obviated was the undue influence of the,husband.

It was presumed that his presence imposed constraint upon her, and that influence was intended to be removed by-placing her out of its immediate operation, and where she would be presumed to act “ freely, voluntarily, and without any fear, threats, or compulsion of her husband.” The undue influence of others does not appear to have been contemplated, nor does it seem to have been in the mind of the legislature, that the influence of the husband might be exerted through other persons present at the examination; for had this been the case, the provision would, doubtless, have been “ apart from her husband ” and all other persons.

Great force is given to this view when- we refer to what she is required by the statute to acknowledge, and which has reference entirely to her husband, namely, that she acted “ without fear, threats, or compulsion of her husband.” But it is urged, that the terms of the statute require that it should be shown that the examination was both private and apart from her husband ; that these terms are employed ex in-dustrid; that they are significant and must be complied with, and that the statute must be construed so as to give effect to all the words used.

But words are to be construed with reference to the whole statute, its general scope and object, and the particular evil intended'to be provided against; and the terms used must yield to the obvious intention to be collected from the whole act. We have above adverted to the evil intended to be prevented, and the reason of this statute.

Keeping these objects in view, what, then, are we to understand by the words “private examination?” If it was intended that it should be out of the presence of all persons whatever, the words “ apart from her husband” become useless, for that was already embraced by the words “ private examination,” under the construction contended for.

Suppose the words “ apart from her husband” were omitted, can we attach any definite and practical understanding to the words “private examination?” Do they necessarily exclude the husband’s presence? and if they do not (as is most certainly true), do they necessarily exclude the presence of all other persons? If not, what number and character of persons may be present, and still the examination be “ private ? ” These considerations present great difficulties in deducing any practical rule from the statute upon the construction contended for.

And these difficulties can only be avoided by applying the reason of the statute in its exposition. Otherwise, it is vague and impracticable. That reason manifestly has reference only to the presence and the presumed influence of the husband. When, therefore, the statute provides that the wife shall make the acknowledgment on “ a private examination,” “ apart from her husband,” the latter clause was intended merely to explain and define what was meant by the words “ private examination,,” which were too general and uncertain for any practical purpose.

The substantial thing required to be done by her was to declare that she acted “ freely, without any fear, threats, or compulsion of her husband,” and this out of his presence, and apart from all liability to his constraint. This view of the subject is supported by several American decisions, in which the point has been directly presented. Den v. Geiger, 4 Halst. 233; Nanty v. Bailey, 3 Dana, 111; 8 B. Monr. 177. And the principle upon which we have placed our construction of the statute is recognized by numerous cases. Shatter v. Brand, 6 Binn. 438; 5 B. Monr. 481; 1 Peters, Cir. C.

R. 188; 4 Halst. 233; 11 Illinois, 128; 1 R. I. 209; Garrison v. Fisher, decided by this court at the present term. Upon the same principle of preventing the presumed undue influence arising from the husband’s presence, the statutes of many of the States omit the words “ private,” or “ privy examination,” and only require that it shall appear that the acknowledgment was made out of the presence of her husband; and in other States, where the words are mentioned in the statutes, it is held to be sufficient to show that the examination was made apart from the husband.

Under this view we are of opinion, that, when the other essential requirements are complied with, it is not necessary that the certificate of acknowledgment should state that the wife was privately examined,- and that the certificate in this case is sufficient. The decree of the district chancery court is, therefore, affirmed. Smith, C. J., having been of counsel, gave no opinion. Note by REPORTER. That caso was handed to the Reporter to be reported, with nothing to show on the opinion that it was “ not to be reported,” or any other instructions in relation to it.