Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-05-06

the general public:
GoRTEN KEMPER VS.. CARVER
On the 18th of December, 1865, John A.
Sims made a conveyance to Mary A. Carver
OF the property in dispute. His deed was
silent as TO the power Of disposition in the
following recitation therein, to-wit: "The
land and premises hereinbefore conveyed 10
said Mary Ann Carver, is 10 her sole and
separate use, and 10 be held by her free
from the debt, Liabilities and contracts of
her present husband, William III. Carver, or
any future husband she may have" Ga the
10Th of October, 1868, Carver and wife exc
cuted mortgage to secure the three notes
of $4I66 66 each, and four other notes, each
for the sum of $3.50, all made by w. III.
| Carver alone. The deed was defectively ac-
| knowledged at first by the clerk who took
the acknowledgment, and when the origi-
nal bill was filed to foreclose the trust, it was
dismissed upon the motion OF the wife, the
court holding that the mortgage as certified
was void as to the wife and not binding on
her. After the decree dismissing the bill as
to Mrs. Carver, from which no appeal was
taken, she, in order to pay her counsel
made deed to Wilson & Beard for FIVE
acres of the property. The deed was dated
23d of April, 1873, properly acknowl-
the 9th day OF June, 1874, the mortgage to
complainant was properly corrected in the re-
citals of the certificate of the privy acknowl-
| edgment and again registered; and afterward
! an amendment was filed in the cause, max
ing Mrs. Carver party and seeking 10 SUBJ
ject the property under the mortgage so cor
rected. Upon an appeal the Supreme Court
| sustained the validity of the corrected mort
| gage, and the cause was remanded for answer
and further proceedings. Several questions
have been raised and strenuously urged by
| the defense, and the cause has been argued
with great ability and after great re-
search by both parties. Complainant relies
| upon his corrected mortgage, and seeks a
plain foreclosure, which is resisted by both
Mrs. Carver and Wilson & Beard, the latter
insisting that the mortgage TO complainant,
until properly corrected, was no incumbrance
| and not entitled to registration, and that
/ their deed having been correctly acknowl-
| edged and registered before such correction,
they have the superior and better title to the
| FIVE acres conveyed to them. Complainant
| insisS that Wilson & Beard had actual no.
| tice of the deed, and that when corrected, as
it could be by REALTORS, it related back TO its
| original executors, and cut out their subse-
quent deed. Suffice it to say that, under
] numerous decisions of this State, deed not
| entitled to registration is no notice, and
| especially is the deed of married woman
utterly void as between the parties, unless
| duly certified in exact conformity with the
L
| 8 Humphreys, 555; Selly Us. Rhea, Legal
Reporter, 298, and authorities there cited.
| This mortgage, therefore, was, until duly
certified, a nullity between the parties,
and would never have any vitality
unless acknowledged by the married
woman, or her acknowledgement corrected
rs permitted by law, and Wilson & Boards
| deed, being coniessedly executed before such
! correction, is valid. So much of the bill and
| pleadings as seek to call in question their
| title is dismissed and disallowed.
| EVIDENCE OF DUREss AND COERCION.
The next question and the main point
Of controversy as raised by defendant,
is want Of power in the married
| woman under the particular settlement
under consideration, to execute such
mortgageas is sought TO be enforced herein
| against her. She defends and makes several
minor defenses which will be disposed of be-
fore discussing the principal point in dis
pute. She in the frst place relics upon tho
fact that the mortgage was procured by fraud
and i'm proper influence on the part of her
| husband, she ayerriDg that he was the agent
of the mortgages, and hence notice to him
| of the means adopted to force from her the
mortgage was notice to them. A careful
examination of the proof convinces me that
the husband occupied no such relation TO the
mortgage, and that they loaned or agreed
to advance to him money or goods provided
he secured to them an existing indebtedness,
as well as the advance to be made thereafter.
This he agreed to do by getting his wife to
execute the mortgage, which he did in the
manner before stated. The means used by
the husband to force the wife to part
with her property was reprehensible
in the extreme, and would of necessity
avoid her mortgage could notice OF the
means resorted to by the husband to
procure its execution be charged to COM
plaintants. The authorities cited by
defendants counsel, if the proofs of
agency were as he contends, would force me
TO end the case here and dismiss the bill on
this ground alone, but 1 find that there was
credit given and to be given 10 him pro-
vided he furnished security, which he at
tempted to do in the manner indicated. But
another and controlling objection to this
feature OF the controversy is that the only
evidence OF duress and coercion comes from
Carver and wife, they both testifying that in
private conversation between them when
alone, that Carver told his wife when she
protested against executing the mortgage,
that if she refused he would then and there
blow his brains out, and that under this
duress she executed it. This testimony is
objected to by plaintiff upon the ground of
confidential communication, and hold that
the objection is we'll taken. Act of 1879,
chapter 200; Orv rs. Cox, 8 B. j. Lea, 6I7.
evidence of the fact, and relief on that
ground is denied.
A WOMAN CAN MORTGAGE PROPERTY DECIDED
TO HER SOLE AND SEPARATE USE.
The only remaining ground of defense is
that there was no power in the femme to make
the mortgage to secure the husbands debt
But that by fair construction of the instru-
ment, the intent of the grantor was manifest
that che should hold free therefrom, and that
in effect it was direct or express prohibit
ton upon the power of the wife in this re-
gard. The language of the deed is: "The
land and premises hereinbefore conveyed to
said Mary Ann Carver is to her sole and sep |
arate use, and to be held by her free from |
the debts, liabilities and control of her pres |
ent husband, w. III. Carver, or any future |
husband she may have" No express. power |
or mode of disposition is given in |
the deed, it being silent on the sub |
ton is sought to be met by complainant, |
who relies upon the power given to her by |
the quit claim from the trustee to whom it |
was conveyed, TO secure the original purchase |
money, but this is, in my opinion untenable, |
for the femme must hold according to the |
intent OF the grantor; and the trust having |
been made to secure a debt, upon its pay
ment no release was actually necessary, it
only being received in lieu of payment and
nothing more. Upon payment made the
title reverted without more, and what the
trustee may have inserted in the release, if |
to vary the terms of the settle
ment, could defeat its intention entirely. Such
a principle cannot be maintained under the
authorities. Had the conveyance under con-
sideration been executed since the act of 1869
and 1870, there could be no question in
the case, as the terms OF that statute |
have been construed, and unless the |
power is expressly denied, the power to mort
gage is expressly given to the femme, and she
can mortgage 10 secure the husbands debt,
although the deed of settlement provides
that the same shall be held free from the
debts of the husband" Malloy o. Clspp.
B. j. Lea, $50. In Clapp Us. Malloy, there
was no power of disposition, the deed being
silent; but the deed was made in September,
1871, and the court holds that the statute of
1869 and 1870 gave the power, there being
nothing in deed expressly prohibiting it. To
same effect see Lightfoot Us. Bass; MSS. jan
Iary 81, 1882, Supreme Court at Nashville.
In both of these cases the whole question is
upon the act of 1869 and 1870, and the court
seems to give unlimited power where the
Iced does not expressly prohibit 1t. The
Ease in hand being trust executed in 1868,
ioes not fall within the late cases decided by |
our court under the act of 1869 and 1870,
and one must revert TO see what the law Is
independent OF those acts, and upon the state
If the law as ii thus stood the decree should
De made. The case of Young %. Young,
Cald., 46l, has been adopted as the true rule |