
    Hartley and others v. Frosh and Wife.
    Allegations in relation to the influence exercised by the husband over the wife in inducing her to execute a deed of trust upon her separate estate to secure an individual debt of his own, present no basis for equitable relief as against third persons who were not privy Thereto. x
    If the husband act unfairly or iniquitously towards his wife in a transaction involving the transfer or incumbrance of her separate property, he cannot join with her in a suit to repudiate such act to the injury of innocent third parties; the wife might have her remedy, but it would be adversely to, nob conjointly with, her husband.
    Where the certificate of the privy examination of a married woman is in due form, in order to impeach its veracity it is not sufficient to allege that there was no privy examination, that the contents were not made known to her, &o.; the certificate is conclusive in the absence of an allegation of fraud or imposition; as, for instance, that there was a fraudulent combination between the notary and the parties interested. (Note 34.)
    Appeal from Brazoria. This was a suit by the appellees for ari injunction to restrain the defendants from selling certain property of the wife under a deed of trust given to secure a debt of the husband. The petition alleged that the said Jane (tiie wife) was not aware either of the true contents of the deed of trust or of the legal effect thereof at the time of her signing and acknowledging it; that the said Lawrence (tiie husband) requested and directed this petitioner to sign and execute said instrument; that, being the wife of said Lawrence, she did comply with the request and obey the direction of him, said Lawrence, and did sign her name to the instrument or deed of trust aforesaid; that said deed of trust the said Lawrence represented to said Jane was to secure an individual debt which said Lawrence then owed on his individual account; and the Said Jane was told if she would become security for tiie debt of her husband, said Lawrence, by signing and acknowledging tiie instrument or deed of trust aforesaid, as she has since learned it to have been, she, said Jane, should have transferred to her and have under her control a large debt against tier husband, said Lawrence, amounting to more thau tiie sum of one thousand dollars; and the said Jane alleges that a't tiie time' of signingand executing said deed of trust she was not advised or informed of the nature of the instrument, or that the same related in any way to tiie premises mentioned in said deed of trust; said deed of trust was not read to her or in her hearing; nor did the said Rhodes (the notary) examine her or ask her any questions whatever in relation thereto separate and apart from her said husband; nor did she have any intercourse, conversation, or communication, relating to said instrument, with said Rhodes, except in the presence of her said husband.” There was no allegation of fraud on the part of any of the defendants or tiie notary, or that they had notice of what was alleged in contradiction of tiie notarial certificate.
    The defendants demurred and answered. It appeared from transcripts of judgments in the record and from the answers of the defendants that the defendants had recovered judgment against tiie husband in theUnitedStat.es District Court for this district, amounting in tiie aggregate to sixteen hundred dollars; that executions were issued upon said judgments and levied upon merchandise of the husband, who was a merchant; that tiie wife then executed tiie deed of trust for tiie amount of the judgments, in consideration whereof tiie judgments were assigned to a trustee whom she herself appointed; that the executions were returned “not executed, by order of the plaintiffs.” The defendants moved to dismiss the petition. At December Term, 1850, the court below overruled the motion to dismiss the petition, and perpetuated the injunction which had been granted in the first instance on the ground that the wife could not become a surety for a debt of the husband.
    The error assigned was that the court below erred ill perpetuating the injunction and in not dismissing the petition.
    
      O. C. Hartley, for appellants.
    I. Tiie ground on which tiie court below overruled the defendant’s motion to dismiss and perpetuated the injunction was that a married woman could not give a security on her property for a debt of her husband. The case of Hollis and Wife v. Francois and Border, which was decided at the last term of this court, had not come to the knowledge of the judge. It will therefore be taken for granted that the judgment must be reversed. (Hollis and Wife v. Francois and Border, 5 Tex. R., 195; Sampson v. Williamson, ante.)
    
    II. Ought the case to be remanded ? The statute makes it the duty of this court to “ proceed to render such judgment or decree as the court below should have rendered or pronounced, except when it may be necessary that some matter of fact be ascertained or the damages to toe assessed or the matter to be decreed is uncertain.” (Hart. Dig., art. 2913.)
    There is no uncertainty here neither as to damages nor matter to be decreed.
    Is it necessary that “some matter of fact” be ascertained?
    We understand that tiie “matter of fact” contemplated by the statute is “some matter of fact ” put in issue by the pleadings, or suggested by the record at least. So this court has decided by implication in several instances. (Swenson v. Walker, 3 Tex. It., 93; Linn v. Scott, Id., 07; Blair a. Odin, Id., 2SS; Erskine v. De La Baum, Id., 400; Wybrants v. Itice & Nichols, Id., 457.) Wo say there is no such matter of fact necessary to bo ascertained in this case.
    III. The acknowledgment of a deed may bo for the purpose of, 1st. Passing title. 2d. Entitling the deed to be registered.
    The ordinary acknowledgment of a grantor is generally of the latter description ; the private examination and acknowledgment of a married woman is always of the former. If the acknowledgment be merely for the purpose of registry, the certificate is conclusive for that purpose; but it is no evidence whatever of the passage of title, and therefore does not entitle the deed to be read in evidence without the usual proof. The Legislatures of different States have, however, provided for the sake of convenience that deeds so acknowledged for registry may be received as prima facie evidence without further proof; others have not done so, and full proof is required where such deeds are offered in evidence. (4 Johns. It., 161; 1 Bin. It., 016; 2 Id., 95 and 154; 1 S. & R., 102.) Ail the decisions where the court suffered the'certificate to be contradicted will be found to fall within the above class when the acknowledgment was not provided by law for the passage of title but for the purpose of recording.
    If on the other band the acknowledgment be for the purpose of passing title, and the certificate be in proper form, it is conclusive for that purpose, and cannot be contradicted. By these simple propositions all the cases upon the subject can be distinguished and reconciled. (1 H. & J. R., 14; 1 II. & McII. It., 211; 3 Wliart. R., 407; 3 II. & McII. R.. 321; 3 Yerg. R., 54S.)
    Of course the certificate is evidence of nothing which the law did not require the officer to certify. (4 Johns. R., 101; 2 S. & R. R., 80; 20 Johns. R„ 478; 2 Wend. R., 555; 2 Yerg. R„ 23.)
    Of course it may he shown that the officer had no jurisdiction. (4 Cow. R., 266; 1 Johns. R., 498.)
    And of course it- may be shown that the acknowledgment was obtained by imposition or fraud, always saving the rights of innocent third parties. (12 Johns. R., 469.)
    All the above propositions result naturally and inevitably from the following general principle: Where the law requires any officer to make a return or certificate of a matter in pais, the return or certificate is conclusive for (he purpose for which the law required it; but wherever the law requires any officer to make a return or certificate of a matter of record, the return or certificate is only prima facie evidence, and maybe contradicted by the production of the record itself. (2 Yates R., 418; 4 S. & R., 2S1; 6 Id., 94; 13 Pet. R., 498; 12 Id., 410: Hughes’ R., 43, 134; 5 Wend. R., 294; S Id., 393; 3 Pick. R., 404.) This proposition results from one still more general: that a higher degree of evidence cannot be contradicted by a lower, and that the best evidence will always be received. No cases can be found which impugn the above propositions; any which may appear to do so will bo found upon examination to proceed upon peculiar legislation.
    And the proof of the rule is that even in the ease of a certificate of the registry of a deed the court would not admit the testimony of a witness to prove that he had examined the records and no such deed was recorded — the only evidence admissible being the record itself, which must in such case be pro-’dneed in court. This shows the reason why the rule is different as to certificates of matters of record and matters in pais, the appeal being allowed from a lower to a higher degree of evidence.
    IV. There is no pretense that there was any fraud or imposition practiced in this case by the notary or the grantees in the deed of trust. . The case lias thus far proceeded upon entirely different grounds, as, for example, that the wife could not become a surety for her husband, and that the notarial certificate could be contradicted without an averment of fraud or imposition. Besides tlie record discloses enough to satisfy tlie court that there is no necessity for the remanding the case in order that “some matter of fact may be ascertained.”
    
      J. A. Sioett, for appellees.
    I. The first proposition is in effect a demurrer to plaintiff’s bill. In answer to tlie proposition that the notarial certificate is conclusive, we say that the notary is a creature of the statute, whose duty is to perform a mere ministerial act. There is no analogy between the statutory conveyance and the common-law mode by fine and recovery. Tlie one is a judicial and the other a ministerial act. If the certificate is conclusive in any respect, it is so for all purposes ; and if tlie doctrine contended for should obtain, the rights and property of every citizen would be secure or insecure in proportion to tlie honesty, integrity, and moral worth of the notary. As to tlie point that the certificate of the notary is not conclusive, this can be maintained on both principle and authority. (4 Johns. R., 160; 4 Kent, 454; 12 Johns. R., 469 ; 2 Serg. & R. R., 80; 2 Yerg. R., 23.)
    II. In order to ascertain the true extent of the rights of the real plaintiff (the wife) in this suit, considerations are involved affecting the nuptial relations. Those relations appear to be lost sight of by defendants or treated as not meriting any consideration. In the words of the court in 13tli Peters, page 118, “the court are asked to deal with the conduct of tlie wife living in harmony with her husband as if she was a third person;” in signing this deed she supposed, though ignorant of its contents, that she was obeying a lawful order and complying with a reasonable request of her husband; she\vas in his presence, and from that fact alone the law will infer under influence; hence the policy of her being “ separate and apart from her husband.” The harmony of the domestic circle required a compliance on her part. In this case, so far as the court could know, all the requirements of the law were disregarded. From the petition it appears that the wife only acted in presence of the husband, and therefore that her acts could not have been free and voluntary.
    III. But tlie consideration for the deed was not sufficient for the following reasons : First. That an attorney at law as such has no authority to assign a judgment. (1 U. S. Dig., pp. 329, 331.) Second. That this consideration was against public policy, as introducing a never-ending source of contention between the husband and the wife. Again, no principle is better settled than that a purchaser must look to every part of a title essential to its validity. (Brush v. Ware, 15 Pet. R., 93.) If this be so the purchaser must take care that all the requirements of the law are fulfilled, and that the consideration is such as the law permits. The law is peculiarly jealous of the rights of infants and femes covert. (1 Story Eq., secs. 95, 96.) ■
    IV. Again, the facts stated in the petition are substantial; they are sufficiently pleaded. It is not necessary to aver a fraudulent intent. If the facts and circumstances are set forth truly, that is sufficient even in pleading fraud. The facts and circumstances constituting the alleged fraud are all that it is necessary to state. Again, the suit was well brought by joining tlie husband as a nominal party complainant. (1 Daniel Ch. Prae., pp. 143, 144.) It was sufficient to set all the parties before tlie court in order that they might all be subject to the operation of the decree.
    It is every day’s practice in chancery to make parties plaintiff or defendant, as the ease maybe. If the jurisdiction of the court would be ousted by making a party complainant, lie is made defendant, and the jurisdiction exercised, it is only where the wife seeks redress against her husband that he is made a party defendant and a next friend appointed.
    A distinction exists between the certificate and the thing certified. The law requires, first, that tlie facts should exist; second, a certificate of the facts. If the facts do not exist, the certificate is of no avail.
   Hempiiill, Oh.' J.

The only questions deserving consideration are whether tiie notary’s certificate is conclusive of the facts therein stated, and if not so, whether the allegations of the petition are sufficient in law to authorize an inquiry into their verity.

The allegations in relation to the influence exercised by the husband over the wife, and as inducing her to execute the instrument, present no basis for equitable relief. If he has acted unfairly or iniquitously towards his wife in the transaction, he cannot join with her in a suit to repudiate such act to the injury of innocent third parties. She might have her remedy, but it would be adversely to, not conjointly with, her husband. In fact her, or rather their, statements in relation to the deceit practiced by the husband carry on their face an air of great improbability. It is alleged that she was not advised of the contents of the instrument, or that the same related in any way to th» premises mentioned in the deed of trust, hut it is admitted “that at the time of signing she was informed hy her husband that the deed was intended to secure an individual debt which lie owed on his individual account, and that if she would become security for this debt by signing and acknowledging the instrument, she would have transferred to her awl have under her control a large debt against her husband amounting to more than one thousand dollars.” Now the presumption is that every person of ordinary intelligence is aware of the liabilities of a surety, and that they constitute a general or special charge upon the property of the surety; and it may well be inferred that this lady, if not devoid of all curiosity, or of attention to her interests, would have made some inquiries before she assumed such responsibilities, and especially as a judgment for a largo amount against her husband ivas to be assigned to her by way of exoneration. She would not suppose that she was to have the benefit of this judgment for the mere use of her name, or that she wonld have any claim without first discharging the debt out of her own property.

But to the question whether the certificate of the officer is conclusive of the facts therein stated. This canse was argued at a late day, and I have been unable to give the subject the thorough examination to which it is entitled. But it seems to me, as well upon principle as authority, that the certificate must be conclusive of the facts therein stated, unless fraud or imposition is alleged.

To impeach the veracity of the certificate it will not be sufficient to allege that there was no privy examination; that she did not acknowledge the same to he her act and deed, &c. There must be some acts alleged showing fraud; as, for instance, that there was a fraudulent combination between the notary and the parties interested. The certificate in this case is in conformity with the statute, and cannot be impeached merely by saying that she was not examined apart from her husband. But few authorities have been examined, and the most important are not accessible.

In Pennsylvania, under a statute similar to our own, it is held that the certificate of the officer as to the acknowledgment of a deed by a married woman is to he judged solely by what appears on the face of the certificate itself, and parol evidence of what passed at the time of the acknowledgment is not admissible for the purpose of contradicting the certificate, except in cases of fraud or imposition. (3. Whartc. R., 457.) In Indiana the doctrine is that an acknowledgment in the usual form, by a feme covert, of a conveyance before a magistrate, estops her and those claiming under her from saying that she had not freely and absolutely executed the conveyance. (McNeely v. Rucker, 6 Blackf. R., 391.) In Yerger, 54S, it was ruled that a court of chancery had no jurisdiction to inquire into the irregularity of a privy examination of a feme covert to a deed executed hy her, unless for fraud. Such examination's are entered oil the minutes of the court in that State, hud the examination in the case cited was taken by the judge out of court, and does not difteria principle from an examination taken by an officer under onr statute. (See also 11. & McII. R., 211; 3 Id., 321; Id., 430.)

Note 34.—Shelby v. Burtis, 18 T., 644; Wiley & Co. v. Prince, 21 T., 637.

The rule above laid down disposes o£ this case, and it is ordered, adjudged, and decreed that the judgment be reversed and the suit be dismissed.

Beversed and dismissed.  