Rigler v. Cloud

The opinion of the court was delivered by Coulter, J. — Bigler has not the shadow of interest as tenant by the curtesy. The clause in the deed made by him to Catharine George, in trust for his wife, effectually shuts him out. That clause is as follows: “ To the use and benefit of Maria Bigler, (wife of the said Henry Rigler,) and her heirs for ever, so that the same shall not be subject, in any wise, to the future control, debts, qr liabilities of her present or any future husband.” It conveys an estate for her sole and separate use, free and clear of [364] all claims, incidents, or liabilities consequent upon the marital state. This case is not within the class which require trustees to give security in court, under the act of 14th June, 1836. The original appointment of trustee is made by the grantor of the estate, and not by the fiat of the law. In certain contingencies, every trustee may be compelled to give security, or be removed from his office. Cloud, the present trustee, was appointed, merely because Catharine George, through age and other circumstances, had become incapable of discharging the trust. Neither the original appointment, nor the appointment of Cloud by the court, was void for want of surety. The crowning fact, in the execution of a deed, is its delivery. But it is not necessary to prove the actual manual investiture. The delivery may be inferred or presumed from circumstances. Thus, the signing, attested by witnesses, the acknowledgment by the grantor, and the recording of the deed have been considered full prima facie evidence of delivery. All these circumstances were present in this case. But it is contended that the acknowledgment was made out of the State, before the Mayor of Trenton, in New Jersey, and duly certified by him, and recorded, where the land lies, in Philadelphia county. It is to be observed that it is the person who made the deed, the grantor, and the person who acknowledged it, who now, after a period of some fifteen years, objects to the acknowledgment as insufficient. It is, however, good and sufficient to protect the heirs of the wife in the estate, as against the grantor. The question might have been somewhat different between a subsequent alienee for value, before the death of Mrs. Rigler, the first alienee. I do not, however, say that it would. My opinion is, that this acknowledgment is fully covered by the act of 23d March, 1819. It is against the spirit and genius of our government to extend nice technical objections to the acts of magistrates and other functionaries of the law, who are called periodically, from the mass of the people, to discharge such duties, without previous legal learning or experience, and thereby disturb estates long settled and purchased for full value, and thus revest the estate in the hands of the original vendor by a legal quirk. But the legislature have expressly validated deeds defectively acknowledged by husband and wife in other States, so as to divest their estates retrospectively, by the fifteenth section of the act of 1840. And the words of that section are so very general, that they might be interpreted to include this ease, which was a deed from a husband to a trustee for the benefit of the wife. But the great and primary object of recording deeds is to give notice. And how can the plaintiff in this suit allege, in a court of justice, that he had no notice, when he executed the deed himself, and selected the officer before whom he chose to acknowledge it. To allow the success of such a scheme [365] •would be to give effect, knowingly, to fraud, deceit and chicanery. The Mayor of Trenton had authority to receive proof of the deed by one of the subscribing witnesses, and to certify it for probate. Herd he received the open acknowledgment of the parties that they executed the instrument, and he duly certifies that fact. I hold that, under the circumstances, to be more than equivalent to the testimony of one of the subscribing witnesses, and a substantial compliance with the act, as against the grantor. No subsequent alienee is present here, alleging that he had not notice. But the whole scope and spirit of the legislation, of modern years, discountenances these formal objections to record of deeds long acquiesced in. And so do the decisions of this court. If a substantial defect can be pointed out, which reaches the merit and justice of the case, it will be attended to. But the security of estates, the tranquillity of society, and the public good require that objections, merely formal, should be disregarded. The remaining objection, to wit, that there was only one witness to the deed, is of no account, and requires no notice. Judgment affirmed.