John T. Davis et al. v. E. L. Agnew, 67 Tex. 206

Stayton, Associate Justice. The appellee shows title to the land described in his petition by regular chain of transfer from the original grantee to himself, and was entitled to recover, unless the appellants have shown, as they claim, that they are purchasers from one of the heirs of the original grantee, under such circumstances as entitle them to hold against the unrecorded deeds under which the appellee claims.

Under the facts shown, the appellants can not hold any part of the land through the deed made by Ephraim Woodson, one of the heirs of the original grantee, for whatever title passed through that vests in John C. O’Neal, or his assigns. The title of the appellants rests upon the deed made by Margaret Forshee and her husband.

Margaret Forshee was one of the heirs of the original grantee, and if no title passed by the deed made by her and her husband to the person through whom the appellants claim, then an inquiry as to whether they would be entitled to protection under the registration laws, if title did so pass, becomes unriecessary. The deed from Margaret Forshee and her husband, when offered, was excluded, on the ground that the certificate of the officer taking her acknowledgment did not show that the deed had been so executed as to pass title to the separate estate of a married woman.

The certificate of the officer is as follows: “State of Missouri, ) “ County of Green, j “ Be it remembered that Margaret Forshee and John Forshee, her husband, who are personally kno wn to the undersigned, a notary public within and. for the said county, to be the persons whose names are subscribed to the foregoing deed as parties thereto, this day appeared before me, and acknowledged the same to be their voluntary act and deed, for the uses and purposes therein contained. “And the said Margaret Forshee first being by me made acquainted with the contents of said deed, acknowledged on an examination separate and apart from her husband that she executed the same, she being the absolute owner of the real estate therein mentioned, freely and without compulsion or undue influence of her husband. “Given under my hand official seal this 12th day of January, 1872. “ T.

H. B.

Lawrence, - [l, s.] ‘Notary Public Green Co., Mo.” The objection made to this certificate was that it did “not show that at time of acknowledging the deed she stated to the officer taking her acknowledgment that she did not at that time wish to retract her signature.” The law in force at the time the certificate was made provided: “That when a husband and his wife have signed and sealed any deed or other writing purporting to be a conveyance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the wife * * * * if the wife appear before any judge of the Supreme or district court, or notary public, and being privily "examined by such officer, apart from her husband, shall declare that she did freely and willingly sign and seal the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed of writing so again shown to her to be her act; thereupon such judge or notary shall certify such privy examination, acknowledgment and declaration under his hand and seal, by a certificate annexed to said writing, to the following effect or substance, viz: “State of Texas, county of-.

Before me,-, judge of, or notary public of-county, personally appeared-, wife of-, parties to a certain deed or writing, bearing date on the -day of-, and hereto annexed, and having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said-, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it; to certify which I hereto sign my name and affix my seal, this-day of-, A. D.-.” (Pas.

Dig. 1003.) This law was in full force, in so far as it affects the question now before us, when the certificate above set out was made; and, without a substantial compliance with its directions, a deed purporting to convey the separate estate of a married woman did not convey title. The first part of the

section prescribes the acts necessary to be done both by the officer and the person whose acknowledgment he is taking; and it further provides what declarations the married woman must make before the officer, and that to his own acts, her acknowledgments and declarations, he may certify, after they have been made under the circumstances prescribed by the law.

It is required that “she declare that she did freely and willingly sign the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge her said deed or writing so again shown to her to he her act”—not to have been her act. The officer’s examination is made for the purpose of ascertaining what the will of the married woman is at the very time she is before him, and not to ascertain what her act or will was at some ' former time.

If the officer makes the certificate which is declared to be sufficient to evidence that he has made the proper examination and explanation, and that the requisite acknowledgments and declarations have been made, although it may not recite as fully as does the former part of the

section that those things were done, it is conclusive evidence of these facts, in the absence of such fraud as will invalidate the certificate. The certificate before us may be sufficient to show that Mrs. Forshee acknowledged that she had willingly signed and delivered the deed, for it certifies that she acknowledged that she executed it freely, which involves the signing and delivery.

This may all have been true at the time these things were done, and still her act inoperative; for it was her right, up to the very time of declaring her ultimate will, to withdraw her free consent that the paper should be operative; and as the evidence that she did not do this, the officer must have certified that she declared that she wished not to retract it, or to equivalent facts.

The first part of the law evidences too clearly that the officer taking the acknowledgment of a married woman must ascertain her will at that time, and to do so, after she has been privily examined by the officer apart from her husband, he must ascertain from the declarations made by her not only that she did freely and willingly sign the writing, but that she then has no wish to retract, to take back, to withdraw from the act of signing, her intention to make it her act freely and willingly performed; and, as if to emphasize this, the law requires, after this declaration of no wish to retract has been made, that the officer shall then take from her an acknowledgment that the writing then shown to her is her act.

This acknowledgment is evidenced by the certificate of the officer “that she acknowledged the same to be her act and deed;” and the evidence of her declaration that she had no wish to withdraw from the act of. signing, her intention or wish to make it her act, freely and willingly performed, is to be found in the certificate of the officer that she declared “ she wished not to retract it.” There is nothing in the certificate of the officer showing, substantially, that the facts existed which authorized him to make a proper certificate, nor are there words in the certificate equivalent to those in the form of certificate, which the law has declared shall be sufficient evidence that those things which the law makes requisite to the passing of title to the separate estate of a married woman have ever been performed.

There was no error in the ruling excluding the deed from Mrs. Forshee and her husband. This is decisive of the case before us, and it is as unnecessary as it would be improper for us to pass upon the other questions raised in the very elaborate briefs of counsel for appellants. The judgment will be affirmed. Affirmed. Opinion delivered November 30, 1886.