Powell's Appeal

Mr. Justice Paxson delivered the opinion of the court, It was contended that the release of Joanna Powmll in her husband’s favor for the one half of the legacy of $3,000 charged upon his land was invalid for the reason that it was not properly acknowdedged. The acknowledgment w’as made before a justice of the pe'ace, who certified that before him “ personally appeared the within named Joanna Powell and acknowledged the foregoing instrument of . . . signed by her to be her act and deed, and that the same was done without any coercion [411] of her husband Benjamin M. Powell, and desired that the same might be recorded as such, . . . and further the said Joanna Powell acknowledged the release separate and apart from her said husband.” It is true the justice does not certify that the contents of the paper were made known to Mrs. Powell, as required by the act of Febuary 21st 1770. That this omission is a fatal defect in conveyances of real estate, is decided in numerous cases. I cite only two of the recent ones: Miller v. Wentworth, 1 Norris 280; Hornbeck v. The Building Association, 7 Id. 64. This, however, was not the case of a conveyance of land. Mrs. Powell had no dower in her father's estate and could have none. What she held was a mere legacy. That it was charged upon land makes no essential difference. A release of a legacy charged upon land is within the recording acts. The act of 15th of April 1828, authorizing such releases to be recorded, requires that they shall be executed “before at least, two competent subscribing witnesses.” The present release has but one subscribing witness, and does not corno within the act: Hellman v. Hellman, 4 Rawle 440. Section 24 of the Act of 26th April 1850, P. L. 581, authorizes the recording of such releases only when they “shall have been duly acknowledged or the execution thereof proved by the existing laws for the acknowledgment and proof of the execution of deeds or other instruments of writing concerning any lands or tenements,” &c. As the release of Mrs. Powell was not so acknowledged it is manifest the Act of 1850 does not apply, nor is the case affected by the Act of April 11th 1848. The acknowledgment by the wife referred to in said act is when the husband seeks to convey or incumber her separate estate. The ffrst section of the Act of 11th April 1856, P. L. 315, repeals so much of the Married Woman’s Act of 1848 as provides that the acknowledgment of a deed or mortgage conveying the separate estate of a married woman may be made differently from her acknowledgment when joining her husband in conveying his real estate. This release is not void, however, because not so acknowledged as to bring it within the recording acts. As before observed, it was not a conveyance of an interest in lands. It concerned personal property, was a mere chose in action, and as such within her own control with the consent of her husband. As this release was made to her husband, at his request, aud for his benefit, his consent is to be presumed. It was held in Bond v. Bunting, 28 P. F. Smith 210, that a married woman, her husband joining therein, could assign her dioses in action without acknowledgment of any kind, and the distinction is there pointed [412] out between a ebose in action and a mortgage; the latter, though a security for money, is a conveyance of land. This release is sufficient in form, however defective the acknowledgment may be. It was said to be invalid, however, for the reason that it was not executed by Mrs. Powell of her own free will; that she did not know what she was signing, and that she received no consideration therefor. And it was urged that if the release was invalid as to her husband it was equally so as to his judgment creditors who merely stand upon the foot of their debtor. The only wituess called to attack the release was Mrs. Powell herself, who, although - incompetent, was permitted to testify by agreement. Giving entire credit to what she says, she fails to show any fraud practiced upon her in the acknowledgment, or any coercion on the part of her husband prior thereto. The substance of what she says is that she did not receive any money; that her husband told her to sign the release, and that it would be all right. It is true the learned auditor finds that her husband told her if she did not sign it “ she must look out for herself.” In this the auditor made a mistake. The words referred to had reference to a deed of thirty acres of land her husband desired to convey, and not to this release. Mrs. Powell took the release to the justice, unaccompanied by her husband, and executed and acknowledged it in the presence of the former. The justice was examined, and testified that she acknowledged the release voluntarily, and that, when he commenced to explain to her the contents of the paper, she interrupted him and stated she understood it; that it was a release of her dower. Mrs. Powell does not essentially contradict him otherwise than by the convenient “ I don’t know.” There is not a scintilla of evidence to show fraud or coercion on the part of her husband, yet if Mrs. Powell is believed there was no consideration for the release. There certainly is no proof she ever received the $1,500, and the auditor does not find she intended it as a gift. 'We must, therefore, hold the release invalid as to her husband. Is it so as to his judgment creditors ? We think it very clear that so far as such creditors have loaned their money upon the faith of the release they are entitled_to priority over Mrs. Powell in the distribution of this fund. It is true a judgment creditor stands upon the foot of his debtor so far as title is concerned; but this rule has no application where a third person has misled the creditor as to the condition of the title and thereby induced him to lend his money on the faith of it. . Samuel M‘Creery had actual knowledge of the release, and took one of his judgments and [413] loaned the money on the faith of it. As to him Mrs. Powell ia estopped from setting up her release. It is true she was a married woman, and the general rule undoubtedly is that the doctrine of estoppel does not apply to such persons. But there are exceptions. The rule rests upon the fact that a married woman cannot contract. It follows logically that what alie cannot pass by contract she may not pass by estoppel. But where the law clothes her with the power to contract, to the extent of that power she is bound precisely as other persons are bound. The law gives her the right to dispose of her personal estate with the assent of her husband. In doing so she lias no more right to injure and mislead others than if she were sui juris. To hold otherwise would enable her to continue her operations with her separate estate so long as they were profitable, and then make reprisals for her losses upon those who had trusted her. Brown’s Appeal, 9 W. N. C. 329, distinctly recognized this principle. There a married woman who held a judgment against certain real estate agreed in writing that the lien of her judgment should be postponed to the lien of a subsequent judgment. After the money had been loaned on the faith of her agreement she attempted to repudiate it on the ground of her coverture. This court held that as she had the absolute control of her judgment, could satisfy it at will, she could also postpone, and, as an innocent party had acted upon the faith of her conduct, she was estopped from claiming a first lien. It does not appear that any of the other creditors loaned their money upon the faith of the release, nor that they had knowledge of it. Not having been duly acknowledged it must be treated as an unrecorded paper. lienee, no question arises as to constructive notice to the creditors, and actual notice is not pretended. We see no error' in the refusal of the court below to allow interest on Mrs. Powell’s claim. The authorities cited by him are sufficient to sustain his ruling. See May v. May, 12 P. F. Smith 206; Bachman v. Killinger, 5 Id. 414. The decree is affirmed and the appeals dismissed at the costs of the respective appellants.