Smith v. Elliott & Deats , 39 Tex. 201 ( 1873 )

McAdoo, J.

A tract of one hundred and sixty acres ■of land in Travis county, composed of two purchases, .acquired during the marriage of E. B. Smith and C. E. Smith, one of the appellants, is the subject matter of the •suit. The deeds to this land were made to the wife, C. E. Smith, at the request of E. B. Smith, the husband. 'There is no proof showing that any separate funds of the wife entered into the purchase. It was doubtless community property. We, however, deem it unimportant whether it was separate or community property so far as this case is concerned.

A part of the land was acquired from Cleveland in 1855, and a part in 1858 from Wall and wife.

After the first purchase Smith and wife occupied and lived on the land as a homestead for a year or more; and then, renting or leasing it, they first kept a boarding house in Austin, then in San Antonio, then in Hew Braunfels, then, in San Antonio, using rented houses all the while, and acquiring at no time other real estate of their own. There is proof that they regarded this land as their homestead at different times. Indeed, we do not regard the question of homestead as having any bearing on this case, in the attitude in which it now stands in this court.

E. B. Smith and his wife, C. E. Smith, to secure Elliott and Beats, who were sureties on an injunction bond, with E. B. Smith as principal, from loss on that account, made to N. O. Green, as trustee, a deed of trust upon the tract of one hundred and sixty acres involved in this suit. Judgment was recovered against Smith and his sureties, ■ and Beats and Elliott had the debt to pay.

Before the debt was paid, however, E. B. Smith died, insolvent. More than a year after his death, Green proceeded to sell the land, in accordance with the terms of the deed of trust, "and Elliott and Beats became the purchasers. This is a suit by them against C. E. Smith, the widow, and Mayfield, her tenant, of trespass to try title.

The first question presented on the record is, is the deed of trust from Smith and wife to Green a valid instrument? Boes it, on its face, confer any authority on the trustee? Is it properly executed?

The following is the form of the separate acknowledgment of Mrs. Smith, as certified to by the notary public taking the acknowledgment:

“And the said Catherine E. Smith, .wife of the said E. B. Smith, having been examined by me, privily and apart from her said husband, and having the said deed fully explained to her, she, the said Catherine E. Smith, acknowledged the same to be her act and deed, and de-, dared she had willingly sealed and delivered the same, and that she wished not to retract it,” etc.

It will be observed that the certificate does not show that she willingly signed the instrument; nor is there in the acknowledgment any equivalent word or expression. There is a clear omission of a material substantive part of the necessary acknowledgment to bind a married woman, whether the conveyance be of her separate property or of a homestead.

Article 1003, Pas. Dig., reads as follows: “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, or of the homestead of the family, or other property exempted by law from execution, 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 or 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,” etc. ■

It is evident that the legislative intent was to so hedge in the separate property of the wife and the homestead, that it Would be impossible that she part with either, without her free, voluntary and uninfluenced action ; that the whole transaction be voluntary, and every part of the transaction be so; and further, that she be cautioned by the officer, that she be by him fully advised of the contents and consequences of the transaction, and being so advised, that she then shall say that she did everything, that she willingly signed, sealed and delivered the same for the purposes and considerations expressed in the instrument, and that then she wished not to retract it. So intent was the Legislature on this subject, that a form was prescribed, so full, so carefully worded and specific, that it would be impossible for the ■ party making the acknowledgment to be ignorant of her rights, or of the consequences of her acts, or that any part of her acts could possibly have been otherwise than voluntary.

It is true the very form of words laid down in the statute need not be followed, but no form that leaves out any substantive ingredient of the form laid down will be sufficient.

A femme covert cannot convey a title to her lands, nor a homestead, except by a deed executed upon her private examination, made as the law directs / her signature to a deed without such examination is a nullity. (Thompson v. Phelps, 6 Dana., 390; Perry v. Calhoun, 8 Humph., 556; Bern v. Randall, 23 Ala., 514; Berry v. Donley, 26 Texas, 744; Rice v. Peacock, decided at this term.)

If the property in controversy were the separate property of the wife, or the homestead of the family, in legal contemplation, under the foregoing reasoning and authorities, this case is decided. If it were neither the separate property of the wife nor the homestead, but simply community property, then the case would be determined by the rule laid down in the case of Robertson v. Paul, 16 Texas, 472—unless this court shall overrule that and other cases involving the sam,e rule. This we are not prepared to do.

It is insisted that the lien created by Smith by reason of the deed of trust secured a vested right, and that the power being coupled with an interest, is irrevocable; and. that, therefore, the construction of the statute in Robertson v. Paul if applied to this case is ’ repugnant to the tenth section of the first article of the Constitution of the United States.

We answer, that the deed of trust in this case was executed long after the act of the Legislature upon which the rule is based became a law. Not only so, but that statute had been construed, in that very case, long before this deed of trust was executed; and it is well settled, that whenever a statute affects a contract, not only the statute itself, but the legal construction of the statute by the courts of the State, .enter into and form a part of the contract.

He who takes a deed of trust from the husband and wife, takes it with the contingency, that sffould the husband die before the execution of the trust, his remedy, if any he has, must be sought in the probate court, and not through the separate action of the trustee.

That the laws which exist at the time and place of the making of a contract enter into and form a' part of it, embracing alike those which affect its validity, its construction, its discharge, and its enforcement, forms a rule recognized by numerous authorities of the highest character. (The People v. Rond, 10 Cal., 570; Von Hoffman v. The City of Quincy, 4 Wallace, 550; Green v. Biddle, 8 Wheat., 92; McCracken v. Hayward, 2 Howard, 612; and Bronson v. Kinzie, 1 Howard, 319.)

In the case of Von Hoffman v. The City of Quincy, above cited, Mr. Justice -Swayne says: “It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to, or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement. Illustrations of this proposition are found in the obligation of the debtor to pay interest, after the'maturity of the debt, where the contract is silent—in the liability of a drawer of a protested bill to pay exchange and damages, and in the right of the drawer and endorser to require proof of demand and notice. These are as much incidents and conditions of the contract as if they rested'Upon the basis of a distinct agreement.

In the case of The City v. Lamson, 9 Wallace, 485, Justice Nelson says: “Itis also urged that the Supreme Court of Wisconsin has held that the act Of the Legislature conferring authority upon the city to lend its credit and issue the bonds in question was in violation of the provision of the constitution above referred to. But at the same time this loan was made and these bonds were issued, the decisions of the courts of the State favored the validity of the law. The last decision therefore cannot be followed.”

In regard to .this contract, at the time of the execution of it the statute in question itself was in force, and its validity had been adjudicated by this court distinctly in Robertson v. Paul. It follows, therefore, that in .either case, whether the property involved in this case was the homestead of the family or the community property, not homestead of Smith and wife, the sale by the trustee, Green, to the appellees, was a nullity.

The judgment therefore is reversed, and the cause dismissed.

Reversed astd dismissed. .