Ingoldsby v. Juan

Baldwin, J., delivered the .opinion of the Court—Terry, C. J., concurring. This action of ejectment was brought to recover a tract of land, lying in Santa Cruz county, being part of the Soquel Ranch. The plaintiff claims, under a deed, made by one Martina Castro to plaintiff, and one Labaria, dated January 22,1855, and a deed from Labaria, on the tenth of September, 1855, to plaintiff. The record shows that the grantor claimed to be entitled to the premises in dispute, by virture of a grant from Figueroa, the Governor of the late territory of California. It shows, also, that the defendants were in possession, claiming by virtue of a deed, made by the same Martina Castro (or Depeaux) on the twenty-ninth of August, 1850. At this time she was the wife of one Lewis Depeaux; but she had been, before her marriage, with Dupeaux, the wife of one Michael Lodge, who died previous to her inter-marriage with Depeaux. - The grant to her by Figueroa was made while she was the wife of Lodge. Many interesting questions are raised by the counsel, and they have been argued with learning and ability. We do not consider it essential to the disposition of this case upon its merits to pass upon them all-The main question which, we think, disposes of the question of title, rests upon the validity of the deed set up by the defendants in bar of the plaintiff’s action. This deed purports to be a deed of bargain and sale, executed by Martina Castro to her children, eight in number, conveying to each one an individual ninth part of the ranch. This deed — 574 — was signed and sealed by her, in the presence of T. R. Perlee and Peter Tracy, as subscribing witnesses. The deed was acknowledged, in proper form, before Peter Tracy, County Clerk of Santa Clara county, on the day of its date. The husband, Dupeaux, did not sign the deed in the body or at the foot of it, as usual in such cases ; but at the bottom of the deed, and after the certificate of acknowledgment, these words were added: “ I have read the foregoing, and fully agree with the conveyance made by my wife; Lewis Depeaux”—witnessed by the same persons as the deed. Then follows the certificate of acknowledgment by Depeaux before the same officer, that he executed the foregoing instrument freely and voluntarily, and for the uses and purposes therein expressed. All this was contemporaneous with, and a part of the execution of the original deed. The deed being the predicate of the title of the defendants was ruled out, because, under the statute of 1850, it did not convey the title of the grantor, Martina, in the premises. If this pretension could be maintained, probably no case could be found in which technical law so far prevailed over natural justice. The grant was made to Mrs. Castro for the benefit of her family. She sought unquestionably to carry out the true intent of the grant by securing to her children a portion of its benefits. The deed she afterwards executed to the plaintiff’s predecessor, evidently by the terms of it (whatever its strict technical meaning) was only designed to convey the interest remaining in her after the deed to the children. But it is charged that, by force of some general words after a particular description of the part intended to be conveyed, the whole tract passed, the deed to the children being inoperative, because, though the husband, Depeaux, assented to the deed, yet he was not, stricti juris, a joint grantor with her. We assume for the argument, and that only, that this property was the separate estate of of Mrs. Castro, and that a separate estate vested before the passage of that Act defining the rights of husband and wife. By the fourteenth section of the eleventh article of the Constitution, “ all property, both real and personal of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise — 575 — or descent, shall be her separate property.” The sixth section of the Act “defining the rights of husband and wife,” passed April 17th, 1850, provides that the husband shall have the management and control of the separate property of the wife during the continuance of the marriage; but no sale or other alienation of any part of such property can be made, nor any lien or incumbrance created thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination separate and apart from her husband, before certain officers—the County Clerk not being one. The Act of April 16,1850, (Wood’s Dig. 100) section two, provides that a husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried. Section three declares, that proof of acknowledgment of every deed of land may be taken by some Judge or Clerk of a Court having a seal. Section twenty—a married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and her husband, and certified in the manner hereinafter provided, by the proper officer taking the acknowledgment. Taking these Acts together, we think it cannot be contended that it was the intention of the Legislature to restrict the making of a contract respecting land by the wife to a formal deed. We do not consider these statutes as enabling Acts. They probably would be so if the common law operated upon the relations or marital contracts of the parties at the time of the contract. But, by the Mexican law and by the Constitution, the property was a separate estate in the wife. She could, before the statute, dispose of it, with the bare assent of the husband, as she chose, by any informal instrument, or, possibly, without any writing. The wife does not, therefore, look to the statutes as the source of her authority to sell or dispose of her property. On the contrary, the statutes are a limitation upon the power—prescribing a new and distinct mode of conveying the land or evidencing the sale or disposition of it. It disables her from disposing of her property as she could before have done. So far as the disability is clearly evidenced, the restraint exists; but it goes no further to restrain her than this manifest intent. She, of course, retains all her original rights — 576 — and powers over the subject, except such as are expressly taken away. The law neither presumes nor favors restraints upon alienations of property or upon contracts. One of the attributes of property is the power to sell and dispose of it. By the general law the sale may be absolute or conditional, partial or complete ; and the contract executory or executed. It may be evidenced in various forms; as, by mere memoranda in writing, or deed under seal, by agreement for a title, or mortgage, or on conditions precedent or subsequent. It has been seen, that the Act of April 17th, uses the term “ instrument” in writing. The Act of April 16th, in the twentieth section, the word “ conveyance.” By section thirty-six of the Act concerning conveyances (the Act of April l^th, Wood’s Dig., p 104) “ the term ‘ conveyance,’ as used in this Act, shall be construed to embrace every instrument in writing by which any real estate, or interest in real estate, is created, alienated, mortgaged or assigned, except mills,” etc. It is argued, that the words “ may convey,” especially in connection with the sixth section of the Act of April 16, which is prohibitory of any mode except that given, are to be construed as authorizing only a conveyance as therein provided; that is, that in order to make the deed of the wife effectual, the husband must join in the deed. It will be observed, that the estate is confessedly in the wife; her title it is that is to pass ; the joining of the husband is not for the purpose of passing title. It is only as a precaution against imposition, or to afford her his protection, or similar reasons of policy, or to evidence his renunciation of the right to manage or control it. [In this case, the contract having been made, and the right of the wife having vested under a different system, it is, to say the least, doubtful whether the Legislature could give the husband any power to control or manage such separate property, and more than, if he had it under the old system, the Legislature could take it away.] The deed was formerly executed by the wife and acknowledged. She signed and sealed it; but for the coverture it would have passed her estate. But the husband, it is argued, did not seal it, and was no party to the deed. But after the deed was signed and sealed, the husband did sign, at the foot of it, an express approval and adoption of it. In terms he agreed to the conveyance. It is true this agreement — 577 — was not under seal. The agreement did not convey any title, for he had none to convey. If he had signed and sealed the deed as an express party named in the premises thereof, the result would have been the same. All that his formal execution of the deed could have done, would have been a signification of his assent and agreement. Having no estate in the land, unquestionably the law would not require of him the vain act of pretending to convey title. It would have been enough if the deed had recited the title of the wife, and then declared that the husband united in the deed in pursuance of the statute. We know of no rule which requires a construction of this statute different from other Acts of the Legislature. Literal conformity is not, as a general rule, required. A substantial compliance is all that is necessary. When the end is answered, the mere mode is not usually of the substance of the Act. No prohibitory words are used in the clause (section nineteen) we are now construing. The language is, that a married woman may convey any of her real estate by any conveyance executed and acknowledged by herself and her husband. Prohibitory words are not used in the twenty-second section, as to the mode and fact of acknowledgment. The question now arises, what is a conveyance ? We know of no authority which holds that a conveyance of interest in land must necessarily be under seal; and, if it were so at common law, it does not follow that it is so required by our statute. On the contrary, the definition given by the thirty-sixth section, quoted before, shows that such was not the intention, for the language is, “ every instrument by which an interest in land is created” is a conveyance ; and we all know, that “ an interest in land” may be created in writing not under seal. The question is not—as we shall presently more fully explain—whether a paper unsealed passes the fee or strict legal title, but whether any right in or to the estate can pass without a seal. It is a familiar rule, recognized by this and all other Courts, that where several papers, concerning the same subject matter, are executed by or between the same parties at the same time, all are to be construed together as one instrument. Makepeace v. Harvard College, 10 Pick. 297; Stone v. Hansborough, 5 Leigh, 422. There is no peculiar form for the signing of a deed. It takes effect — 578 — from delivery. The old form required no signature even, but a sealing was sufficient; and now the signature is often good, if made by another and adopted by the grantor. Any writing which clearly shows that a party has adopted a sealed instrument as his own, intending to be bound by the contents of it, is, if not a formal, at least a sufficient execution, to satisfy the statute. We have seen that a formal execution of this deed by the husband, would only be a written expression of his assent to it. But surely, in equity, a contemporaneous expression, in writing, of that assent, is not the less effectual because it is expressed, not in the body of the deed, but on the same paper, a few lines below the signature of the wife. If he had added; “ The above is my deed,” no one would have questioned that it was a good execution. Is there any substantial difference, when he says, “ I agree to or with the foregoing deed,” especially when, as said before, all that his signature as a party to the deed could amount to, is that agreement ? But it is said that there was no execution of the deed by Depeaux, because the instrument is not sealed by him. We do not admit that the statute ever intended so great a strictness in the mode of execution by the husband. The fact of execution is indispensable, but we see no greater reason for holding to any more strictness in the manner of execution in this than in other cases. Could it be contended that if the deed were executed with a seal by the wife, and without a seal by the husband, that this defect would vitiate the deed ? We are at a loss to see upon what principle. If there had been no seal, the instrument would have been good, as creating an equity, if not good to cast the fee. But this memorandum, signed by Depeaux, adopts the entire deed, and with it the seal affixed to the signature of the wife. (3 Monroe, 377.) But it may well be doubted whether, in such a case as this, the seal of the husband is necessary, having no estate to convey, but merely assenting to the passing of the wife’s title. If the execution were defective in form, the substance of the Act having been complied with, it would be the common case of a defective execution of an instrument, which chancery might correct; but it would vest an equity in the grantees in possession under the deed. The vice of the whole adverse argument, is in supposing that because — 579 — there must he a joining by the husband in the execution of the deed, and an acknowledgment by the wife in the required form, that there must necessarily be a strict pursuance of the usual form of the execution of the deed; whereas, as to the mere mode of execution, there is no difference between this class of deeds and other deeds ; and as to the rules of construction, between this statute and other general Acts, no difference exists; the sense, policy and substance being the guides, and not the mere words. We think that in equity and practical effect, this deed was executed by the husband and wife ; the husband doing, by his agreement at the foot of the deed, (which was duly acknowledged by him) all he could do if he had signed and sealed it as a formal party. We have examined the cases cited against this view, but we can . find no one which, upon principle and analogous facts, opposes it. The sixth section of the Act of April 17th, 1850, already quoted, requires the acknowledgement to be made before the Judge, etc., and does not empower the Clerk to take it. As this Act was passed the day after the general Act of conveyances, and as the language is prohibitory, it is urged that the acknowledgment before the Clerk of the County Court is invalid. There is an apparent confusion in the statutes on this subject, but the cause is easily perceived. The Act of seventeenth of April was designed to fulfill the requirement of the Constitution, “ more clearly to define the rights of married women.” After declaring, in the sixth section, that the husband should have the control of the separate estate of the wife, it was thought necessary to qualify and prevent misconstruction of this language; and, therefore, the Legislature added, by way of proviso, that the husband should not sell—nor the wife—'except, etc. But the sixth section only relates to separate property acquired after the passage of the Act. No retrospective operation was intended, or, perhaps, could have been given to it. In such cases, (see Grimes v. Norris, 6 Cal. 621) the statute only operates upon future transactions and matters. The general Statute of Conveyances embraced as well deeds of separate property, existing before, as that acquired subsequent, to its — 580 — passage ; it did so by express terms—for the matter of the statute was the conveyance of estates—those annoyances being in the future, though the estates presently existed. But the subject of the Act of the seventeenth of April was the separate property itself, and that statute was passed to define and fix the relations of the parties to it; and, by the sixth section, the husband is made the manager of the separate property of the wife, and then the power of sale by him is denied, and the mode of sale fixed; but this ¡only, by obvious rules of construction, applies to separate property afterwards acquired, or to property held as separate by women married after the passage of the Act. The Legislature had no power to affect marital regulations or rights fixed by law previously; and if they had, we are not to presume, in the absence of an express declaration to that effect, that they so intended. See authorities cited in Grimes’ case. It is next objected that Tracy, the Clerk of Santa Clara, had no power to take the acknowledgment, because he had no seal of office. But this construction of the statute is too narrow. The Court of which he was Clerk, was entitled to a seal. This general phrase, “ having a seal,” was only intended to denote a Court of record, which is defined to be a Court having a seal. The power of the Clerk was never intended to be made to depend upon the fact of his having procured this article, or the care with which he preserved it. We have avoided the expression of any opinion upon many questions presented by the record, and have assumed some positions more for the purpose of argument than with a view to decide them, the real question passed upon being the validity of the deed from Martina and Depeaux. We expressly leave open the question whether a grant, made in the usual form and with the usual conditions, by the Mexican authorities, to a married person, creates a separate estate or common property. The Court erred in striking out the answer setting up this defense. The error in excluding this defense, founded on this deed, is sufficient to reverse the judgment below, and, probably, decides the entire controversy. Judgment reversed and cause remanded for further proceedings, in pursuance of this opinion.