Mullins v. Weaver

Watts, J. Com. App. Counsel for appellant insists upon but one question in this case. It is contended that the district court erred in excluding the deed of George W. Scott and his wife, Elizabeth Scott, to the appellant Charles Mullins, dated October 1, 1856. When this deed was offered in evidence the appellee objected to its introduction, on the ground that the acknowledgment of Mrs. Scott was not in due form for the conveyance of the wife’s separate property. This ■ objection was sustained by the court, and the deed ex6 eluded. The certificate of acknowledgment attached to the deed is as follows: “ State of Texas, County of Lampasas. “ Before me, the undersigned, clerk in and for said county, personally appeared G-. W. Scott, to me known, and whose name appears to the within deed, and he, the said G-. W. Scott, did acknowledge to me that he signed, sealed and delivered the same for all the uses and purposes therein contained and expressed; and also appeared E. L. Scott, wife of the said Gr. W. Scott, and whose name appears to the within and attached deed of conveyance, bearing date October 1, A. D. 1856, who, after having the deed aforesaid fully explained to her separate and apart from her husband, did acknowledge to me that she signed the same as her voluntary act and deed, for all the uses and purposes therein contained and expressed, and she wished not to retract the same. “ In testimony .whereof I hereunto set my hand and seal of office in the town of Lampasas, October 1, A. D. 1856. “ W. B. Covington, Cl’k O. 0. L. 0.” The particular objection urged to this certificate of acknowledgment is the omission of the words “ sealed and delivered ” after the word “signed.” Art. 1003, Paschal’s Digest, was the statute then in force, and used the term “ willingly sign and seal the said writing,” whereas in the form therein prescribed the following term is used: “ willingly signed, sealed and delivered the same.” And it is also provided that any certificate showing that the requisites of the law had been complied with should be as valid as the form there prescribed. For two reasons it was not essential to use in that part of the certificate of acknowledgment the. word “ delivered.” In the first place it is shown in the certificate that the .husband, Gr. W. Scott, had delivered the deed; in the second place, while the word is used in the form of the certificate as given, it is not required by law, nolis the use of that word in the certificate necessary to constitute it a valid acknowledgment. In the case of Belcher v. Weaver, 46 Tex., 295, Chief Justice Boberts, commenting upon this statute, said: “ The word ‘ freely ’ may be omitted in the certificate, because it is omitted in the form. The word ‘ seal ’ may be omitted, because when this deed was made a seal was not necessary. The words ‘ and deed ’ in connection with ‘ act ’ may be omitted, because, though in the form, it is not in the same connection in the enacting clause. So the word 1 delivered’ is in one but not in the other.” [7] It is admitted by counsel in their brief that the use of the word “ sealed ” was not necessary to constitute it a valid acknowledgment. But it is claimed that the certificate must use the word “ delivered; ” this, however, it has been seen, is not essential to a valid certificate of acknowledgment. A certificate of acknowledgment of a married woman to her deed, showing that the statute has been substantially complied with,' is sufficient. The acknowledgment is required for her protection against the undue influence of the husband; and to do this the lawmaking power requires that she shall be examined privily and apart from her husband, and that the deed shall be explained to her; that is, the officer, in the absence of the husband, shall so explain the deed that the wife will understand its import and effect, and that she shall then declare to the officer that she freely and voluntarily signed the deed, and did not wish to retract it. When the certificate shows that these things have been done, without regard to the particular language used by the officer, the object and purpose of the law has been attained. This certificate shows that the deed was fully explained to her by the officer separate and apart from the husband, and that she acknowledged that she had signed the same as her voluntary act and deed, and did not wish to retract it. How, notwithstanding the acknowledgment was taken before the passage of the act dispensing with the use of seals, and the word “ sealed,” although used in statute and form, was omitted from the certificate, nevertheless she declared that she had signed the deed, and the scrawl appears appended to her name, and is acknowledged in the body of the deed as a seal; it could not be held that the omission of the word from the certificate would vitiate it, because it does show that all the substantial elements of the statute made for her protection have been fully complied with. We conclude that the court below erred in excluding from evidence the deed, and that on account of that error the judgment should be. reversed and the cause remanded. Reversed and remande!-. [Opinion delivered April 17, 1882.]