¶1The trial court found that the deed from Allen Thompson and Susan F. Thompson to the defendant Johnson did not convey the title to the land, the same being the separate property of the plaintiff Susan F. Thompson, because the acknowledgment to the deed was insufficient. The acknowledgment is as follows:
¶2"The State of Texas, County of Kaufman. — This day before me, Thos. C. Griffin, notary public of Kaufman County, came Allen Thompson and Susan F. Thompson, to me well known, and acknowledged that they signed the foregoing deed for the purposes and considerations therein set forth; and the said Susan F. Thompson, wife of the said Allen Thompson, being examined privily and apart from her said husband and having had the said deed explained to her, declared that executed the same freely and with constraint on the part of her said husband, and that she did not wish to retract the same.
¶3"Witness my hand and seal of office at office in said county, this 17th day of January, A.D. 1870. THOS.C. GRIFFIN, "Notary Public, K. C."
¶4The trial court found the certificate of acknowledgment insufficient in the following respects:
¶51. That the officer's certificate does not show to whom Susan F. Thompson acknowledged that she signed the deed.
¶62. That the officer's certificate does not show who examined Susan F. Thompson.
¶73. That the officer's certificate does not show that said deed was fully explained to Susan F. Thompson by the officer.
¶84. That the officer's certificate does not show that Susan F. Thompson ever acknowledged the execution of the deed to be her act and deed. *360
¶95. That the officer's certificate does not show that Susan F. Thompson ever willingly signed, sealed, and delivered the deed to the defendant Johnson, or to any one for him.
¶10The court further found, that if the separate acknowledgment of Mrs. Thompson was sufficient under the statute to pass title, then the judgment should he for defendants. This deed was executed and the acknowledgment taken when the statute of April 30, 1846, Paschal's Digest Laws, article 1003, was in force, and must be construed with reference to that statute. It has been held that the present statute is more rigorous in its requirements than the statute of 1846. Sowers v. Peterson,59 Tex. 220.
¶11In reference to the first objection to the acknowledgment, it has been held that the certificate of the officer is to be construed as reciting what transpired between the officer and the married woman at the time such acknowledgment was taken. Clark v. Groce, 41 S.W. Rep., 669; Coombes v. Thomas,57 Tex. 322. The recitation in the certificate that, "this day, before me, Thos. C. Griffin, notary public of Kaufman County, came Allen Thompson and Susan F. Thompson, to me well known, and acknowledged that they had signed the foregoing deed," etc., fairly shows that they acknowledged the same to the officer.
¶12The recitation in the certificate that "Susan F. Thompson, wife of Allen Thompson, being examined privily and apart from her husband, and after having said deed explained to her," etc., will, in the light of the above decisions, be construed as meaning that the examination was, conducted by the officer, and that he explained the deed to Mrs. Thompson.
¶13In reference to the finding that the deed was not fully explained to Mrs. Thompson, it has been held, construing the statute, Paschal's Digest, article 1003, that I literal compliance with the statute is not necessary. Belcher v. Weaver, 46 Tex. 294.
¶14The officer certifies that the deed was explained to Mrs. Thompson, and omits the word "fully," which is contained in the form prescribed by the statute, but is not in the enacting clause. Pasch. Dig., art. 1003. The contention is, that the deed was not fully explained to her, and therefore her acknowledgment is not sufficient. If it can be gathered from the certificate that the deed was not fully explained to Mrs. Thompson, this contention is sound. But we do not think it so appears. If the officer explained the deed to Mrs. Thompson, we think this is substantially saying it was fully explained to her. If it was only partially explained to her the certificate would not be true, for then the deed would not have been explained to her, but only partially so.
¶15In the case of Clark v. Groce, supra, the Court of Civil Appeals for the First District held an acknowledgment good which omitted the word "privily" in the examination of the wife.
¶16We think that the certificate that Mrs. Thompson had the deed explained to her substantially shows that a full explanation was made to her by the officer, and is a substantial compliance with the statute. *361 Belcher v. Weaver, supra; Monroe v. Arledge, 23 Tex. 481; Butler v. Brown, 77 Tex. 344.
¶17It is further insisted that the certificate does not show that Susan F. Thompson acknowledged the execution of the deed.
¶18The certificate recites that Allen Thompson and Susan F. Thompson, to the notary well known, acknowledged that they "signed the foregoing deed," etc. And again, that Mrs. Thompson "having had said deed explained to her, declared that executed the same freely," etc.
¶19In the case of Durst v. Dougherty, 81 Tex. 653, it was held that the word "the" in a certificate of acknowledgment used instead of "he" (the maker) "executed the instrument," etc., did not make the certificate defective.
¶20In the case of Gray v. Kauffman, 82 Texas, the word "her" in the certificate of acknowledgment to a deed by a married woman was omitted before the words "act and deed;" and it was, held that this did not render the certificate defective.
¶21Again, it is held, if from the whole certificate it can be gathered that the requisites of the statute were complied with, the certificate will be held good. Belcher v. Weaver, supra.
¶22In the beginning of the certificate the officer certifies that Mrs. Thompson did acknowledge that she signed the deed. We think the certificate, fairly construed, shows that the word "she" was omitted before "had executed," and that Mrs. Thompson did acknowledge the execution of the deed.
¶23The contention that the certificate does not show that Susan F. Thompson willingly signed the deed, we do not think well taken. That part of the certificate objected to in this respect, reads: "she declared that executed the same freely andwith constraint on the part of her said husband, and that she did not wish to retract the same."
¶24It is contended, that notwithstanding Mrs. Thompson declared that she executed the deed freely, yet the certificate recites she did it with constraint. In the case of Durst v. Dougherty, supra, it was, held that a certificate of a married woman which recited that "she had freely and voluntarily, with fear and compulsion on the part of her husband signed the same, and that she wished not to retract it," was a compliance with the statute. The court, speaking of the certificate, use the following language: "It is apparent from the general sense and meaning of the certificate that the word 'without' instead of 'with' fear was the word intended to be written."
¶25We think that a fair construction of the entire certificate shows that the word "with" was a clerical mistake, and that the officer intended to use the word "without." In such a case we do not think the certificate should be held defective. Talbert v. Dull, 70 Tex. 677.
¶26Construing the certificate, as a whole, in the light of our decisions, we think it fairly appears that the requirements of the statute were substantially complied with, and the court erred in excluding the deed as a muniment of title. *362
¶27It follows from this holding, that the judgment of the court below should be reversed, and judgment here rendered for appellants; and it is accordingly so ordered.
¶28Reversed and rendered.
¶29Delivered June 11, 1898.