Miller v. Ruble

Chief Justice Mercury delivered the opinion of the court, November 13th, 1884. It is true at an early day in England signing was not considered essentially necessary to the validity of a deed. It is not stated as one of the things necessarily incident to a deed at common law: Co. Litt. L. 1, C. 5, Sec. 40, 35 b. A due sealing thereof was deemed a sufficient execution. This, however, was by reason of a very general inability to read or write: 1 Reeves’s Hist. of Eng. Law 184, in note. In 1 Blackstone’s Com. 305, it is said to be requisite that the party whose deed it is should “ seal, and now, in most cases, I apprehend should sign it also.” Pie proceeds to state that under Saxon rule seals were not of much use in England. Their method, for such as could write, was to subscribe their names, and whether they could write or not to affix the sign of the cross. On the conquest by the Normans they introduced waxen seals only, instead of the English method of writing their names and signing with the sign of the cross. These seals, however, generally had specific devices to distinguish them from each other. The Statute of 29 Charles II. and the first section of our Act of 21st March, 1772, indicated a necessity that all transfers of [400] land should be put in writing and be signed by the parties mating the same. This was deemed necessary for the prevention of frauds and perjuries. Our Act mates no reference to a seal for the purposes therein mentioned, but requires the writing to be signed. It was, however, held more than one hundred years ago that the signing of a deed was a material part of the execution thereof, and that the seal had become a mere form, and a written or ink seal, as it was called, was good: McDill v. McDill, 1 Dall. 64. The sufficiency of such a form of seal,when the deed is signed by the maker, was affirmed in Long v. Ramsay, 1 S. & R. 72. It is true in Maule v. Weaver, 7 Barr 329, Mr. Chief Justice Gibson did say that he did not entirely concur in what was said in those cases, that the signing of a deed was the material part of its execution, yet he admitted it to be the most powerful evidence of the joint or separate .ensealing thereof. In that case, however, the question was whether covenant could be maintained against the grantee in a deed when he had neither signed nor sealed it, but it concluded, “ in witness whereof the said parties have hereunto interchangeably set their hands and seals the day and year first above written,” and was signed and sealed by the grantor alone. In Leggett v. Long, 7 Harris 499, a Treasurer’s deed was held sufficiently executed where he had omitted to write his signature near the printed impression of a seal, but had put it on the deed to a receipt for the taxes and costs and for the bond, for the surplus purchase money, and had also acknowledged the deed in open court, which acknowledgment was entered on the records of the court, and duly certified on the deed. Cases may undoubtedly be found in which judges of this court have cited English authorities to prove that at common law, irrespective of Statute, signature was not essential to a deed. Hoffman v. Bell, 11th P. F. Smith 444, cited by counsel for plaintiff in error, is one of them. That case, however, was not ruled on the validity of a deed sealed and not signed, but on the fact that the evidence failed to prove that any deed had been delivered or executed. The great industry and careful search of counsel have not resulted in his being able to cite a case, since McDill v. McDill, in which it was held by this court, on a direct presentation of the question, that a deed professing to convey land was sufficiently executed without any signature of the vendor. On the contrary, in Watson v. Jones, 4 Norris 117, McDill v. McDill is cited approvingly by Mr. Justice Gokdoít. The recognition of any rule which dispenses with the necessity of [401] the signature of the grantor would be fraught with great mischief. Aided by a pliant Justice of the Peace, or by a false personation before an honest one, it would provide a convenient way to rob a man of his land without the trouble and danger of forging his signature. The case now before us relates to the question of what is necessary to make a valid conveyance of the real estate of a married woman. This is to be determined by the Statute, without which it could not be done. Section 2 of the Act of 24th February, 1770, declares when husband and wife desire to convey the estate of the wife in any lands, it shall be lawful for them to make, seal, deliver and execute a deed for the same, and after such execution to appear before a Judge of the Supreme Court, or Justice of the Common Pleas of the county in which the land lies, and acknowledge the same. This Act requires both husband and wife to join in the conveyance to pass the real estate of the latter. Its directions are imperative : Trimmer v. Heagy, 4 Harris 484. What specific acts must they both do ? The Statute answers, “ make, seal, deliver, execute and acknowledge the deed.” Sealing and delivering are not the only requisites which must precede the acknowledgment. They must first make the deed. This clearly imports the signing' thereof. Until that is done it would be a forced construction of this language to say they had made a deed. The manifest meaning of this word, in the connection in which it is used, is that the deed shall be duly prepared, and be signed by them. The sealing is referred to as a separate act. The Act of 1848 does not repeal or change the Act of 1770-so as to dispense with the necessity of both joining in the deed to convey the real estate of the wife : Peck v. Ward, 6 Id. 506; Ulp v. Campbell, 7 Id. 361. The Act of 1848 confers no power upon a feme covert to make a valid conveyance of her real estate unless her husband joins in the deed: Thorndell v. Morrison, 1 Casey 326; Stoops v. Blackford, 3 Id. 213 ; Glidden v. Strupler, 2 P. F. Smith 400 ; Dunham v. Wright, 3 Id. 167. She has no capacity to contract for the sale of her real estate, nor to convey it otherwise than in the precise statutory mode conferring the power: Innis v. Templeton, 14 Norris 262. While several Acts since that of 1770 have conferred upon other officials the power of taking the acknowledgment of a deed conveying the real estate of a wife, yet no one has changed the form of its execution, nor dispensed with the necessity of its being made by both husband and wife. As the deed offered in evidénce showed Mrs. Kuble to be a married woman when it was executed, and her husband did [402] not unite with her in its execution, it was insufficient to pass her real estate, and the learned Judge committed no error in rejecting the evidence. Judgment affirmed.