Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-09
SUPREME COURT.
Condensed Decisions, Reported for
the Appeal by H. Clay King, Esq.

o 5000 u ~ -
The. bill in this cause was filed in
the Chancery Court of Memphis, and
the following facts are established in
the case:
On the 18th day of June, 1913, the
defendant, Ann II. Kesterson, with
John Kesterson, her husband, eXecu-
ted and delivered to Ann S. Keeling q
deed of conveyance of lot No. 356 in
the city of Memphis, said lot being
the individual property of Mrs. Kes-
tersOn. Said lot was afterwards con-
veyed to Robertson Topp, who sold il
to NJ. J. Wicks, E. w. Munford, w.
B. Greenlaw, j. o. Greenlaw, through
whom complainant Mount claims title
to a portion of the lot. On the 9th o.
June, 1866, the defendant, Ann II.
K~esterson, her husband being deceased
or supposed to be so, commenced an
action of eiectment against Mount fol
the recovery of that portion of the LOT
held by him. Her claim to recover
the lot is based upon the alleged fact
that the certificate of her privy exam
nation and acknowledgement an
nexed to the deed of herself and hus-
band to Mrs. Keeling is defective, and
not such as is required by law; and il
is claimed that in consequence thereof
the deed is Intellectual and void as to
her. The bill alleges these facts, with
Others not necessary to be stated here.
and prays that the suit in ejectment
be pe~rpetually enjoined; that the said
lost deed be set up and established,
and that if necessary the title to said
lot be Invested out of Mrs. kestersOn,
and for general relief. The original
deed of Mrs. KesterSOn and her hus.
band has been lost, and a copy from
the Registers office is exhibited
with the bill. The answer Of Mrs,
KestersOn admits the making of the
deed by her husband, and that a copy
thereof is exhibited with the bill, and
also admits that she signed the same,
and that a futile effort was made tC
take the privy examination on the
18th of June, 1913, the said eXamiRa.
ton being nugatOry because the said
Rose, deputy clerk, etc, omitted to
recite and show in the privy eXamina-
ton and in his probate that he was
personally acquainted with respond
emit
Subsequently TO the execution of the
original deed by Mrs. Kesterson and
her husband, a deed was executed by
her, intended to confirm the sale and
to remedy the supposed defect in the
title. In the view which we have Ia
ken of the questions involved in the
case, it becomes unnecessary to decide
upon the effect of this deed of confirm
alton, and our decision will be confined
to the effect and operation Of the Origi-
nal deed. Upon the final hearing the
bill was dismissed by the Chancellor,
and the complainant appealed. Pre-
YiOus to the passing of the act of 1888,
ch. 90, all deeds of femmes covert in
this State were required to be ac-
knOwledged by the femme upon a
private examination before some court
or Judge of q court, or in certain
cases before commissioners to bef ap-
pointed by the court TO take the ac-
acknowledgement, and the only mode
provided for the acknowledgment Of
any deed of real estate was before some
court, or Judge or commissioner. The
act of 1881, Oh. 90, introduced 4 mate
rial change in the system of providing
that deeds of persons sui juris might
be proved by witnesses or acknOWl-
edged by the grantOrs before the clerk
of any County Court. This act has no
reference to deeds of married women.
1t is the first statute of this State
which provides a form for the certifi-
cate of acknowledgment. Under the
provisions of all these statutes, how
ever, deeds other than those of femmes
covert, instead of beingacknOwledged
by the grantors, might be proved by
the subscribing witnesses before the
proper court or officer, and Il copy of
the record of such probate endorsed.
The act of 1881 provides that when
the person executing the instrument
wishes to acknowledge the same, it
shall be lawful for any of said clerks
to receive said acknowledgment if he
is personally acquainted with the per-
son wishing to make said acknOwl-
edgment, but not otherwise; in which
case he shall put on said deed the fol-
lowing acknowledgment; g. COun-
~. Personally appeared before me,
CLERK, etc, the within named (the bar
gainOr, ObligOr, etc., with whom 1
am personally acquainted, and who
acknowledged that he executed the
within deed, bond, etc. for the pur-
poses therein contained" The act
also provides for the probate of the
deed by the testimony of the Subscrib-
ing witness instead of the ackn0Wl-
edgment, and prescribes a form of GER
tificate of such probate to be Endorsed
upon the deed by the clerk taking
such pEobGte.
In 1888 was passed an act entitled
an act to amend the act of 1881, ch. so.
This statute provided that all deeds of
conveyance heretofore made, or here
after to be executed by husband and
wife, may be proven by the subscrib-
ing witnesses thereto, or acknowledged
the clerk of any County Court
in this State, which probate or ac-
acknowledgement of the deed, execution
of said deed by the said husband and
wife shall be made in the same man.
ner; and the form of the certificate of
such probate or acknowledgment shall
Ge the same as is pointed out in the
said act which this is intended TO
amend; and il stall be the duty of the
clerk before whom said probate or &C.
acknowledgement is SO taken, and after
the said deed is so proven or acknOWl-
ChSNh ~ CAdlAAllAC kllC VIC pllNl lN anu
apart from her said husband touching
her voluntary execution Of the same;
and if she acknowledges or states that
she executed the same freely and vol
lntarily, and without any cOmpulsiOn
On the part of her said husband, them
and in that case the said clerk, in adj
1ition to the certificate or acknowledge
nent prescribed In the above reeited
lct, shall also put the following certiti-
ate on the back of said deed: "And
A. b. (the femme covert having per-
appeared before me privately
and apart from her husband, the said
acknowledged the execution of
he said deed to have been done by
her freely, voluntarily and understand
ngly, without cOmpulsiOn or restraint
rom her said husband, and for the
purposes therein expressed" The
statutes of 1881 and 1888 were in force
this State at the time of the eXecu-
ion of the deed now in question. The |
certificate of acknowledgment upon
he copy deed in question is as follows: |
: State of Tennessee, Shelby county.
Personally appeared before me, VIM.
=. DawoOdy, Clerk Of the County
,ourt of said county, John K~esterson,
nd Ann II. Kesterson having also
ppeared before me, privately and
part from her husband the said john
testerson, acknowledged the eXeeu-
ion of said deed to have been done
her freely, voluntarily and under
without compulsion from
Ter said husband, and for the purposes
herein contained. Witness my hand
{ Office, June IL, 1913,