Wedel v. Herman

McKee, J.: The main question in this case is, whether a defective certificate of acknowledgment to the deed of a married woman, purporting to transfer her .separate real property, can he reformed in a Court of equity ? In exercise of power granted by the Constitution of 1849, the first Legislature of the State enacted a law for regulating the mode of transferring or incumbering the separate real or personal property of a married woman. By Section 19 of an Act entitled “An Act concerning conveyances,” passed April 16, 1850, it was provided that a married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and her husband, and certified according to the requirements of the Act by the officer taking the acknowledgment. Execution, acknowledgment, and certification were, therefore, made, by the law, essentials of the conveyance of the estate of a married woman; and each was required to be made and done in the mode, and according to the form, which the law prescribed. Her acknowledgment had to be made to an officer, qualified by the law to take it, to whom she was personally known to be the person whose name was subscribed to the conveyance as a party thereto, or proved to be such by a credible witness; and upon being made acquainted with the contents of the instrument subscribed by her, she was required to acknowledge, on an examination separate and apart from and without the hearing of her husband, that she executed the conveyance freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she did not wish to retract the execution of the same. In construing the provisions of that statute, the Supreme Court regarded a married woman quoad her separate property as a feme sole, with power to dispose of her property, whether real or personal, in the mode prescribed, but in no other. Accordingly, they held that not only signing and acknowledgment by her of the execution of a conveyance, according to the statute, before an officer qualified by law to take the acknowledgment, but the certification by the officer of the execution and acknowledgment of the conveyance, — 512 — were each and all necessary parts of the conveyance; and that any instrument in writing, purporting to convey her real or personal separate property, which was not acknowledged and certified, or which was defectively acknowledged and certified, was absolutely void—a piece of blank paper, which could not be corrected or reformed in any particular in a Court of chancery, " because,” say the Court, “ her consent to contracts must he perfectly free. She can make no contract to bind her, except in the manner prescribed by law. The provisions of the statute must be .strictly pursued.” (Barrett v. Tewksbury, 9 Cal. 14; Selover v. A. R. C. Co., 7 Id. 267.) Both those cases involved transactions by married women as to their separate property, after the passage of the act of 1850. The last case involved a sale of the separate personal property of the wife in the year 1854, by an instrument in writing, which had not been acknowledged and certified at all. The first case involved a sale of the wife’s separate real property, in the year 1852, by a warranty deed, which was defectively acknowledged and certified; and both contracts were held to be of no binding validity upon the wife, and were unenforceable against her, although she had in each case received the purchase money from the vendee. Following those decisions, the Legislature of the State, by an act entitled “An act concerning acknowledgments of deeds and other instruments in writing affecting real estate,” passed April 13, 1860, gave to the County Judge of each county of the State jurisdiction to correct any defective acknowledgments to deeds or instruments in writing—affecting the title to any real estate in his county—which had been executed in good faith by husband and wife, or any other person of lawful age. Hpon proof of service, according to the statute, upon the parties to such an instrument, of a verified petition for the correction of a defective certification of the acknowledgment of the instrument; and upon satisfactory proof that the instrument had been, in fact, acknowledged according to law, before an officer qualified by law to take it, who had made a defective return of it, the County Judge was authorized to order the certificate to be amended; and such an order, when indorsed upon or annexed to the instrument, entitled it to he recorded. When recorded, the-conveyance became valid; and — 513 — its record imparted notice to third persons, and entitled it to be admitted in evidence, as if it had been originally, in all respects, properly acknowledged or proved. Those statutes of 1850 and 1860, as construed by the Supreme Court, continued to be the law upon the subjects of the execution, acknowledgment, and certificate of acknowledgment, of conveyances by married women of their separate real property, until the adoption of the Codes, January 1, 1873. In some respects the Codes changed the status of married women, and the mode of alienating or affecting their separate real property. By Section 158 of the Civil Code, a married woman was enabled to enter into any transaction or engagement with her husband, or any other person, respecting her separate property. The execution and acknowledgment of her conveyance, and the form of certificate of acknowledgment to be annexed to it, or indorsed upon it, were substantially the same as prescribed by the statute of 1850, except that the officer taking her acknowledgment was required to make her acquainted with the contents of the conveyance, on an examination without the hearing of her husband, instead of (as it might have been under the statute of 1850) in the presence of her husband. (§§ 1186, 1191, C. C.) But the legal effect of these forms of procedure was changed. Joint execution of a conveyance by the husband and wife, and a separate acknowledgment by each, according to the forms prescribed, were still required for the disposition of her estate. But execution, acknowledgment, and certification of acknowledgment, were no longer necessary to the validity of her conveyance. It was sufficient to pass her estate if she executed and acknowledged a conveyance thereof according to the requirements of the Civil Code. (§ 1093, C. C.) When thus executed and acknowledged, her conveyance had the same legal effect as the deed of a feme sole. (§ 1187, C. C.) Therefore the certificate of acknowledgment is not an essential part of her conveyance. That, under the codes, is regarded simply as record proof of the fact of acknowledgment. When acknowledgment has been made, according to law, before an officer qualified by law to take it, the party making it has done all that the law requires to make the instrument — 514 — her act and deed. Her deed thus executed and acknowledged may be valid, though defectively certified. The embodiment of the fact of acknowledgment, in the form of the certificate prescribed by law, devolves upon the officer who has taken the proof of it, and not upon the party making it. In taking the acknowledgment the officer acts judicially; and if he blunders in certifying to an acknowledgment duly made, or makes a defective or false certificate, he can not alter or amend. it, because, after taking the acknowledgment and delivering the return, his functions cease, and he is discharged from all further authority. (Bours v. Zachariah et Ux., 11 Cal. 281.) But what he can not do, may now be done by a Court of equity, for, by Section 1202 of the Civil Code, jurisdiction to correct a defective certificate of acknowledgment has been conferred upon the Superior Court. Leonis v. Lazzarovich, 55 Cal. 52, is not in conflict with these views. Every judgment of every court must, of course, be considered with reference to the facts which were before the Court for determination. In the facts and the principles of law applicable to them, the two cases are entirely dissimilar. In that case the object of the action was to correct an alleged mistake in the deed of a married woman. The deed had been duly executed, acknowledged, and certified, and the Court held, that it could not be reformed by adding to it any other property than what was described in it, because a married woman can not be divested of her real estate, except in the mode prescribed by the codes. Therefore the judgment of the lower Court, directing a married woman defendant, to execute and acknowledge, within a certain time, another deed conveying other lands than those described in her original deed, was adjudged erroneous. Certain expressions in the opinion as to the power of the Court to correct a defective certificate of acknowledgment to such a deed, though sustained by authorities of other States, and by the decisions in our own State prior to the adoption of the codes, went beyond the facts of the case, and are not applicable to the facts of this case; for in this the execution and acknowledgment of the conveyance were complete, but the certificate of the officer was defective. The facts, as found by the Court below, are that on June — 515 — 11,1875, the property in controversy was the separate property of Magdalena Walter—then a married woman, and the wife of Philip Wedel, Sr., and the mother of the plaintiff in this action, Philip Wedel, Jr. That on that day she executed in favor of the plaintiff a conveyance of the property, and acknowledged the execution thereof in every particular, as required by law, before a proper officer; but the officer, in annexing his certificate of acknowledgment to the conveyance, inadvertently and by mistake omitted to certify therein that, upon an examination without the hearing of her husband, he had made her acquainted with the contents of the conveyance. Upon this defective certificate the conveyance itself, completely executed and acknowledged, was recorded, and, after registration, delivered to the donee, who had been, since the commencement of the action, and for more than four years prior thereto, seised and possessed of the premises, and that the defendant Herman had actual notice of the conveyance and transfer of the property before the judgment taken against the grantor in the year 1880, under which and the execution levy and Constable’s sale he claims title to it as a subsequent purchaser. It is contended that these findings are contrary to the evidence; but they are fully' sustained by the evidence; and from them it results, as a conclusion of law, that the plaintiff was entitled to have the certificate of acknowledgment corrected; because, as we have seen, the conveyance was valid as between the parties to it and all the world, except bona fide subsequent purchasers in good faith without notice. But as the defendant had actual notice, he is not a bona fide purchaser entitled to the protection of a Court of equity; therefore the judgment of the Court below is correct. But it is contended that the Court below erred in overruling objections made to the offer in evidence of the deed to the plaintiff from his father, on the ground that it was not delivered. The deed was produced by the plaintiff. It was a deed from father to son; it showed that it had been duly acknowledged and recorded at the request of the grantor, and these constituted sufficient proof of delivery. It is next urged that the Court erred in admitting in evidence a deed from Philip Wedel, Sr., the father of the plaint — 516 — iff, to Magdalena, his mother. But it was admitted that the property belonged to the husband in 1869; and that he married Magdalena, the grantee, in 1873. The deed itself was executed in 1875; and showed on its face that it was made to the wife for a nominal consideration. But because it expressed a nominal consideration, it is urged that the premises conveyed by it became community property of the husband and wife. That is the legal presumption which arises from such a deed executed by a third person to a married woman, but it is a presumption which may be overcome by proof that it was her separate property. Whether a like presumption prevails in such a deed executed by the husband to the wife is doubtful, under Section 158, Civil Code, because by that section either husband or wife is enabled to enter into any engagement. or transaction respecting property which either might if unmarried. But it is not necessary to determine the question, because the evidence tended to prove, and the Court found, that it was a gift to the wife, and the deed vested the premises in her as her separate property. The objection that the second cause of action failed to state the appointment of a guardian ad litem, etc., was not made to the complaint in the Court below by demurrer or answer. The defect in the complaint was, therefore, waived. (§ 434, C. C. P.) When a defendant answers the complaint, and goes to trial upon the issues made by the pleadings in the case, and judgment is rendered against him, he can not, on appeal from the judgment, avail himself of defects in the complaint which might have been reached by special demurrer and corrected in the Court below. (Gale v. Tuolumne Water Co., 14 Cal. 25; Montifiori v. Engels, 3 id. 434.) Judgment and order affirmed.