Davis v. Kennedy

Citations

• 58 Tex. 516
• 1883 Tex. LEXIS 57

Syllabus

<p>1. Ekaud—-Sefabate 'acknowledgment of wife.— In a suit by the husband and wife to recover property occupied by them as a homestead at the time of its conveyance, in which they sought to set aside their deed on the ground that the certificate of the notary to the wife’s separate acknowledgment, which was formal in its terms, was in fact untrue as to such separate acknowledgment, and also as to her privy examination, and the making of the explanation of the contents of the deed, as required by law, it was also charged that a fraudulent combination to swindle and deceive the wife,existed between the notary public and the purchaser. Held,</p> <p>(1) A charge of the court to the effect that the certificate of the officer to the wife’s separate acknowledgment, made in compliance with the statute, is not conclusive of the facts certified to, but may be attacked by the wife, even though the purchaser had completed the purchase innocent of fraud, and ignorant of any wrong or neglect on the part of the officer, was error.</p> <p>2. Cases approved.— Hartley v. Frosh, 6 Tex., 208; Shelby v. Burtis, 18 Tex., 644; Wiley v. Prince, 21 Tex., 637; Williams v. Pouns, 48 Tex., 146, and Kocourek v. Marak, 54 Tex., 205, approved.</p> <p>3. Separate acknowledgment op wipe. — The wife cannot impeach for fraud the certificate of her acknowledgment to a deed when the same is in conformity to the requisitions of the statutes, and when there is an adequate consideration paid to support the deed, if the purchaser neither participated in the fraud or had knowledge of its existence.</p>