Schrader v. Decker

Gibson, C. J. There was not even a plausible objection to the evidence proposed, except the supposed impolicy of allowing the certificate of a wife’s separate examination to be falsified by parol evidence. Such evidence is undoubtedly attended with a greater or less degree of risk in every case; but it is indispensable to the detection of fraud, even in a record against which the law allows of no direct averment. Our statutory provision for a wife’s conveyance by joinder with her husband, and acknowledgment on separate examination, is a substitute for a fine, by which alone the common law allowed her to part with her land; and it is true, as we read it in Sheppard’s Touchstone, p. 9, that “ if there be any woman that hath a husband (and) that doth join with her husband in the conveyance, the judges or commissioners must take [16] care that they do examine her whether she be willing, and do part with her right in the land willingly or by compulsion of her husband ; for albeit she may be made to do it by compulsion of her husband, yet hath she no way to relieve herself from it when it is done.” But it is said in 1 Madd. Ch. 266, that if fraud were practised, equity would relieve against it; which is certainly true, for no separate examination can guard against that. The principle is no more than the rudimental one, that fraud vitiates every assurance whether by matter of record, or in pais; and even had the conveyance in this instance been by fine, it would have been open to 'impeachment on that ground. But as the equity side of our courts of law is not broad enough to admit of relief by bill, we are compelled to give effect to the principle by pleading or evidence, as the court below ought to have done. But we would deprive married women of all substantial protection, did we give to the separate examination of a judge, or a justice of the peace, the conclusive effect of an examination by commissioners to levy a fine, which is much more private, careful, and searching. Every one conversant with the subject, knows the inutility of a separate examination under our statute, even by the most careful, and how often the form of it is hurried over almost in the presence of the husband, or, as in the case before us, dispensed with altogether. Even where the magistrate is too conscientious to be satisfied with less than full and unreluctant acquiescence, the husband may take her to a less scrupulous one. The necessities of justice therefore demand that the transaction be open to objection, not only for fraud, but concealed duress; and the case presented is a rank compound of both. The deed for a part of the property, being executed while the wife was an infant, is absolutely void; and the deed for the residue is open to objections as decisive. It was given to a tavern-keeper, partly in payment of a profligate husband’s debt, contracted in a course of drunkenness and debauchery; and it was thus procured: Means, the grantee, attended by his wife, a man called Dininger, who had no ]p>per concern with the business, and an inexperienced justice piclfftd up by the way, repaired to the house of the husband, while the wife was in the throes of child-birth. Means, his wife, and Dininger, entered the sick woman’s chamber, and met, in the first instance, with the repulse they had reason to expect. It was not till she had been badgered during two hours, and worn out by the importunity of her husband, as well as deceived with false assurances by the rest of the party, of her husband’s right and ability to redeem the land, that they [17] worked her to their will. The justice was then called in; and having barely asked her in the presence of her husband, whether the instrument she had executed was her deed, signed the certificate which had been brought along for the occasion. In addition, the land was of much greater value than the price which was paid for it in worthless accounts and charges. If these circumstances are proved, particularly the crisis selected for the transaction, the instruments employed to bend her to their purpose, and the deception effected by their false assurances, they will show the existence of a conspiracy to strip her of her property, by force or fraud, and the jury will have no moré to do than to find for the plaintiff all the land which had not been paid for to Means, or his voluntary grantee, and all that may have been paid for with knowledge of the fraud. To do less, would disgrace the administration of justice. Judgment reversed, and a venire de novo awarded.