L. M. Wiley & Co. v. Prince

.Hemphill, Oh. J.

This is one of the numerous instances in which the folly fraud or violence of husbands, and the rapacity of creditors, have extorted from the wife a mortgage of her property to secure the debts and speculations of the husband. Such transactions must be guarded against with the most jealous vigilance, or they will defeat the benefits which the wisdom and policy of the law have secured to the ■ wife. Under our former jurisprudence, the wife could not become a surety for the husband. And although we have held that since the introduction of the Common Law, the wife, under her power of alienation, might mortgage her property to pay the debts of the husband without any consideration enuring to herself, yet, in the language of the boobs, every such transaction should be scrutinized with an anxious watchfulness and caution, and dread of undue influence. (2 Story Eq. Sec. 1895 ; 2 Roper, Husband and Wife, 216,217, 222,224; Pybus v. Smith, 1 Ves. Jr. 189; Bradish v. Gibbs, 3 Johns. Chan. 549.)

There is no relation in which more influence, more dominion can be exercised by one person over another than that exercised by the husband over the i wife. They are separate in this State as to property, but in other respects the legal existence, the powers of the wife, are merged in the husband, and his conduct in obtaining gifts or suretyships from her pro- *640 party should therefore be watched with the most scrupulous attention.

We have held that the certificate of the officer taking the acknowledgment of the wife to a deed of conveyance is conclusive of the facts therein stated, but may be rebutted by proof of fraud, mistakes or imposition, (Hartley v. Frosh, 6 Tex. R.; Burtis v. Shelby, 18 Tex. R.;) and it has been intimated in some of the cases that to invalidate the act as to third persons, a knowledge of the fraud, imposition, &c., must be brought home to the grantee, and this rule as to notice was in effect given in chnrge by the Court below. Where the property is alienated in fee, and a consideration passes, it is but reasonable, and it is necessary for the security of titles and the protection of property that the certificate of the officer should be held as conclusive, unless the fraud or wrong charged to impeach the instrument were known to the grantee, as the circumstances were such as should have impelled him to an inquiry which he neglected. But can this be the rule where no consideration passes ? Where the wife becomes the surety to pay the debts of the husband, antecedently contracted? To say the.least, this is doubtful. Under the circumstances, the dependent, defenceless, situation of the wife, the character and purpose of the obligations, &c., the rule should be that the creditor takes the security at the risk of its nullity from the malign influences under which it was created ; that for his own safety he must inquire into the circumstances surrounding the transaction, and before he touches the instrument he opened that it was not engendered in fraud and iniquity. But this point need not be decided in this cause. Here the agent of the creditors was not only apprized of the brutal threats and violence of the husband, but he conspired with him by his importunities to defraud the wife, and convert her lands, through the husband, to the benefit of his creditors.

At the time of this transaction this unfortunate wife was in *641 her bed of suffering, from a sprained ankle. The husband, leaving, the agent of the creditors and the witness in an adjoining room, importuned his wife most earnestly with flattering tales that by this mortgage he could maintain his credit, purchase more goods, and continue his business, and when she refused, for the most excellent reason, that he had gone through with his property, and she did not intend that he should go through with hers, he burst forth in violent threats that if she did not give the mortgage, he would burn her house down and carry off her children—threats alarming and agonizing to the heart of a wife and of a mother. The witness heard, and he thought that Keith also heard, these threats, when the husband coming out, the agent, at his request, went into the room and plied the wife with his tale of glozing deception, that the husband could get credit and a further stock of goods, &c., which, by the way, was not proven at the trial. The wife giving him the answer that she had before given to the husband, he retreated but on another occasion, the same day, the husband assured the agent that if she did not give the mortgage, he would burn the house and carry off the children.

There was another witness who heard threats of a similar character. Can there be any doubt of the invalidity of this mortgage that it was the offspring of violence? That no such free assent by the wife was given as the law requires for the validity of a contract ?

It is a matter of no consequence that the deed was not made for perhaps a day or two afterwards. There had been violence and outrage, and the jury might very well find that the undue influence continued up to the time of the act.

The rules in relation to duress as against strangers, apply with redoubled force in relation to a wife. In fact, acts and circumstances which would not relieve a stranger from his act, would be duress as regards the wife.

The jury were to judge from all the circumstances, whether *642 there was undue influence whether the assent of the wife was free.

They found, and we believe justly, that it was not free, audit is ordered that the judgment be affirmed.

Judgment affirmed.