Nelson v. Bergman

Mr. L. D. Smith, Special Judge, delivered the opinion of the Court. The bill in this cause was filed by Abel Nelson and Erick Erickson, to recover from John Bergman a ten twenty-fourths interest in a five-thousand-acre tract of land in Grundy county, and also to recover from said Bergman and from Frazier & Hunt for timber cut and removed from said tract of land, Frazier & Hunt having purchased same from Bergman. — 379 — The chancellor decreed that the complainants were the owners of and entitled to recover said ten twenty-fourths interest in the land and timber, and from his decree the defendants have appealed, and have assigned numerous errors. It is conceded that the complainant, Abel Nelson, owns and is entitled to recover a five twenty-fourths interest in said tract of'land, and the timber wrongfully removed therefrom, so that the controversy upon this appeal is limited to the five twenty-fourths interest which the complainants, Nelson and Erickson, claim to own jointly by virtue of a deed which was executed to them by Helena B. Peterson and husband, dated March 25, 1907. This five twenty-fourths interest of Helena B. Peterson was purchased by her husband and paid for by him, but, at his direction, was conveyed to her, and thus it appears that she owns said tract of land as a separate estate. Ferguson v. Booth, 128 Tenn., 259, 160 S. W., 67, Ann. Cas., 1915C, 1079; Barnum v. Le Master, 110 Tenn., 638, 75 S. W., 1045, 69 L. R. A., 353. Upon the trial of the cause the defendants filed a number of exceptions to the deed which Mr. and Mrs. Peterson executed to complainants to said interest, which exceptions the defendants insist were not passed upon by the court, and they assign the alleged failure of the court to pass upon said exceptions as error. Under the view which we take of the case it is immaterial that the chancellor did not act upon these various exceptions. Upon said exceptions being filed questioning the validity of said deed because Mrs. Peterson’s privy examination was not in compliance with our statute, the complainants, over the objection of the defendants, were permitted to — 380 — amend the original bill so as to make Mrs. Peterson a party complainant. This amendment was not made with the knowledge or consent of Mrs. Peterson. But it is insisted by the complainants that, as a matter of law, they had a light to make her a party complainant, and to recover said interest in the land and timber in her name for their use and benefit. Two questions are, therefore, before us for determination : The first one being as to whether said deed is valid; and, second, if invalid, did the complainants have the right to make Mrs. Peterson a party complainant for the purposes stated? The validity or invalidity of the deed in question turns upon whether its execution was in accordance with our statute on the subject of conveyance of real estate by married women. The form of certificate prescribed by our Code (Shannon’s, section 3753) is as follows: “And-, wife of the said-, having appeared before me, privately and apart from her husband, the said-, acknowledged the execution of the said deed to have been done by her freely, voluntarily, and understandingly, without compulsion or constraint from her said husband, and for the purposes therein expressed.” The objection urged against the validity of the deed in question is that the certificate fails to show that the deed was executed by the wife “understandingly” and “for the purposes therein expressed.” That part of the certificate to the deed in question relating to the privy examination of Mrs. Peterson is as follows: “And the said Helena B. Peters on, wife of said John Peterson, having been by me examined, separate and apart — 381 — from and out of the hearing of her husband, and the contents and meaning of said instrument, and all her rights under the homestead laws of the State of Tennessee having been by me made known and fully explained to her, acknowledged it to be her act and deed, and that she had executed the same, and relinquished her dower and all other right, title and interest in and to the lands and tenements therein mentioned, and expressly waived and released all her rights and advantages under and by virtue of all laws of said State of Tennessee relating to the exemption of homesteads, all voluntarily and freely, and without the compulsion of her said husband and that she does not Avish to retract the same. “Given under my hand and notarial seal, this txventy-fifth day of March, A. D. 1907. “John P. Peterson, Notary Public, St. Louis County, Minn.” It is at once observable that this cerificate does not use the words “understandingly” and “for the purposes therein expressed.” While it is undoubtedly true that, in order to show that the deed of a married woman was executed in accordance with the requirements of our law, consequently in order to the validity of the deed itself, the certificate must show it was executed by the wife “understandingly” and “for the purposes expressed in the deed,” it is nevertheless equally true that it is not necessary to use the very words of the statute if other words equivalent in meaning are used. Edmondson v. Harris, 2 Tenn. Ch., 431. This is not only so under our decisions, but by virtue of the Code itself (Shannon’s, section 3757) which provides: — 382 — “The unintentional omission by the clerk of any words in a certificate of an acknowledgment or probate of any deed or other instrument, shall in no wise vitiate the validity of such deed, but the same shall be good . . . to all intent and purposes, if the substance of the authentication required by law is in said certificate.” Whether this statute is applicable to the certificate of acknowledgment of a married woman was questioned by Judge Cooper in the case of Edmońdson v. Harris, supra. But the principle of the statute has been applied in numerous cases, and it is quite evident from the language of the statute and other provisions on the same subject that it does so apply. The. following sections make provision for the correction of the omission of words in the certificate of a privy examination, as well as in other deeds, and we may safely infer that it was not intended that any correction was necessary where the certificate contained the substance of the authentication required. We may, therefore, properly examine the certificate in question, and, if we find the substance of the absent words in the certificate, it will be our duty to uphold the validity of the deed. We may be aided in this investigation by recurring to the provisions of the statute with respect to what is necessary to be done in the execution of a deed by a married woman to make the same valid and pass her title to the property conveyed by the deed. In order for a deed to bind the wife and her heirs and assigns it is necessary for her to be examined by the officer before whom the deed is executed privately and apart from her husband. This examination relates to her voluntary execution of the deed, and her knowledge of its contents and effect, and the statute says, “if she acknowledges or states that she exe — 383 — cuted the same freely and voluntarily and without any compulsion on the part of her husband, and the clerk or other officer is satisfied that she fully understands the same,” he shall put on the back of the deed, or annex to it, a certificate in the particular form prescribed. In other words, if a married woman showS by her privy examination that she understands the contents and effect of the deed, and that its execution is voluntary upon her part, and has not been brought about by any compulsion on the part of her husband, then she is bound by the execution of the deed, and it is the duty of the officer to attach to the deed a proper certificate, if he is satisfied from his examination that she fully understands the same. This means that, if the examination has been in accordance with the requirements of the statute, the purchaser is entitled to have a proper certificate attached thereto, and he may, under the provisions of the lawas found in the Code (Shannon’s, section 3759), have a certificate made, or an imperfect one corrected, to conform to the form required by the previous sections. But, if Ave can ascertain from the certificate attached to the deed that the requirements of the law have been complied with, then no correction is necessary, and the deed is valid and binding on the married woman. Of course we can only look to the certificate itself to determine Avhether the requirements of the law have been fulfilled. With this in vieAV let us examine the certificate in question. It does appear that the married woman Avas examined by the officer separately and apart from and out of the hearing of her husband. This is a substantial compliance with the requirement - that the officer shall examine the wife privately and apart from her husband. The statute prescribes that this examination of the wife — 384 — shall touch her voluntary execution and her knowledge of its contents and effect. The certificate says that the contents and meaning of the said instrument, as well as all the rights of the wife of the homestead laws of the State, were fully explained and made known to her. This language shows that the wife was examined touching her voluntary execution of the deed and of her knowledge of its contents and effect. It not only shows that the officer fully explained to her the contents and meaning of the deed, hut that its contents and meanings were known to her. The mere explanation of the deed might not show an understanding, but she could not have failed to understand it if its contents and meaning were made known. We might well conclude from this language of the certificate that the officer examining the wife was satisfied that she fully understood the same. If the certificate shows that she executed the deed and knew its contents and meaning, then the execution was done by her understanding^. This interpretation of the certificate in question does not find authoritative support in the case of Murdock v. Memphis & Ohio R. R. Co., 7 Baxt., 557, as contended by the complainants. In that case the certificate was as folloAVs: “The said Mary Murdock did sign, seal and deliver said indenture before me, out of the presence and hearing of said husband, and she being by me examined, out of the presence and hearing of said husband, whether she does execute and acknowledge the same freely, voluntarily, and. Avithout being induced to do so by fear of threats of, or ill usage by, her husband, or by fear of his displeasure, declareth and sayeth that she does.” The acknowledgment was taken out of the state in 1847. The court, in disposing of the case, set forth the essentials — 385 — of a privy examination, and held that prior to the Code of 1858 a privy examination in a foreign State, in compliance with the law of that State, was valid, and expressly held that the act of 1833 (section 3753 of Shannon’s Annotated Code) only applied to acknowledgments taken within the State. The court also intimated that since the adoption of the Code in 1858 our form for a privy examination had to he followed, whether the acknowledgment was taken within or without the State. The court further held that the certificate, when tested hy our statute, was defective because of the omission of the word “understandingly.” We also recognize that the court has adhered to a strict interpretation of certificates. The most extreme example of this strict rule may be found in the case of Roulston v. Darby (Tenn. Ch. App.), 52 S. W., 318. The opinion published is that of Mr. Justice Neil, of the court of chancery appeals, affirmed orally by the supreme court at its December term, 1899. The certificate involved in that case omitted the words “having appeared before me private and apart from her husband,” the word “acknowledged,” the word “understandingly,” and the words “without compulsion or constraint,” and the words “for the purposes therein expressed.” The only words contained in the certificate which it was argued supplied the meaning of the word “understandingly” were the words, “the contents and effect of said instrument being explained by me to the said Sallie B. Roulston,” etc. In the opinion of Judge Neil this was held to be insufficient to supply the requirements of the word “understandingly.” While the result reached by the court of chancery appeals in that case could well have been affirmed upon other grounds — and the — 386 — record does not show upon what ground it was affirmed— we might assume, for the purpose of this case, that this court approved of his opinion in this particular. In the certificate under consideration it not only appears that the officer fully explained the contents and effect of the deed, hut that the contents and effects were made known to the married woman, and these are words that imply more than words of mere explanation. At any rate, they may be thus reasonably interpreted. In our opinion the strict interpretation applied in that case goes to the extreme limit in that respect. This is especially true in view of our married women’s emancipation statute (Act 1919, chapter 126) and the act of 1919 (Pub. Acts 1919, chapter 48, p. 139) with respect to certificates of married women, which provides, in -section 2: “The acknowledgment of a married woman, when required by law, may be taken in the same form as if she were sole and without any examination separate and apart from her husband” — as manifesting a more liberal spirit with respect to the freedom of married women in dealing with their property. We are therefore of the opinion that the certificate in question complies substantially with the requirements of the statute that the deed be executed and acknowledged understandingly. The next insistence is that this certificate does not use words in substance the same as “for the purposes therein expressed.” We find that the certificate uses the words “acknowledged it to be her act and deed, and that she had executed the same, and relinquished her dower and all other right, title, and interest in and to the lands therein mentioned, and expressly waived and relinquished all her — 387 — rights by virtue of all laws relating to the exemption of homesteads.” The purpose of this deed, as appears upon its face, so far as the wife is concerned, was to convey and relinquish all her rights, title, and interest in the lands mentioned in the deed. The deed had no other purpose, and the certificate does specifically show the purpose of the execution of the deed just as fully as if she had said, “for the purposes therein expressed.” In other words, her acknowledgment specifies the purpose, instead of referring to the purpose mentioned in- the deed. The sufficiency of this certificate not being in other respects challenged, we are constrained to hold that it complies with our statute, and shows the deed to have been executed as required in order to be binding upon the married woman. We are therefore of the opinion that there was no error in the decree of the chancellor in decreeing that complainants were the owners and entitled to recover ten-twenty-fourtlis interest in the land and timber, and the liability of the defendants for timber wrongfully cut and removed will be for the full amount decreed by the chancellor. Having held the conveyance by Mrs. Peterson binding upon her, it will be necessary to notice the action of the chancellor allowing complainants to amend the bill by making her a party complainant to the same. As to the timber, we consider this is a proper case for the application of the harsh rule, and also that the defendant Bergman is not entitled to an accounting for alleged improvements. We concur with the chancellor in holding the defendant Bergman was guilty of gross fraud in dealing with the complainants relative to this land and timber. For this reason we tax him with all the costs of the appeal. — 388 — Under the law of this State timber is a part of the realty, and is dealt with as such. One eotenant cannot convey a good title to the merchantable timber on the land any more than he can convey a good title to the land itself, and the complainants had the right to recover its value from Frazier & Hunt. The decree of the chancellor will be in all things affirmed.