Roy v. Bremond

Bell, J. 'Tbis was a suit by tbe defendant in error, against rtbe plaintiffs in error, upon a note and mortgage, executed in consideration of tbe balance due on a judgment in favor of Breimond, -tbe defendant in error, against E. S. Roy, one of tbe ¡plaintiffs in error. ‘There was judgment by default, a writ of inquiry awarded Iby tbe court below, and tbe verdict of tbe jury, establishing tbe liability of both tbe defendants on tbe note and mortgage. Tbe service on tbe defendants was insufficient, under tbe rule (established by tbis court, in tbe case of Graves v. Robertson, i('supra 130,) decided at tbe present term. But the insuffi■ciency of service is not one of tbe errors assigned; and as tbis court will not notice any errors except those assigned, unless they are such as go to tbe foundation of tbe plaintiff’s action, it follows, that tbe judgment of tbe court below cannot be reversed, for tbe insufficiency of tbe service. [627] There is a question, whether the allegations of the petition are sufficient to authorize the judgment against the wife, Jane Roy, for the foreclosure of the mortgage ? The petition alleges, that the mortgage was “duly acknowledged” by both F. S. and Jane Roy, and was recorded, &c. We are of opinion, that the allegation that the mortgage was “duly acknowledged” by the wife, must be held to mean, that it was acknowledged by her in such manner as to be legally binding on her, as her act and deed. It is true, that an acknowledgment of a deed by a married woman, in order to be binding on her, must be done in a particular manner, and before an officer authorized by law to receive such acknowledgment. She must be privily examined; she must make an acknowledgment, and a declaration. But we do not think it necessary that the petition should set forth all the particulars of the examination, acknowledgment and declaration. We think the allegation, that the wife “duly acknowledged” her deed, is sufficient to authorize the introduction of testimony, to show that the acknowledgment was in the manner required by law. To hold such an allegation to be sufficient, can never practically work an injury to the rights of married women. If, in point of fact, the acknowledgment is not in the manner required by law, the courts will always protect the married woman, if she will appeal to them for protection; and no requirement, in reference to strictness of pleading, will ever enable the courts to protect those who do not choose to appeal to them for protection. A majority of the court are of opinion, that there is no error in the judgment of the court below, and the same is therefore affirmed. Judgment affirmed.