March v. England

BRICKELL, C. J. — Acknowledgments, or proof of the execution of conveyances, may be taken by a notary public, and several other officers named in the statute. — Code of 1876, § 2155. The acknowledgment of execution proceeds from the party granting or conveying, and the proof of execution from subscribing witnesses. The registration of conveyances of real estate, in the office of the judge of probate of the county in which it is situate, is authorized; and when made, either upon an acknowledgment, or proof of execution, duly certified, the conveyance becomes admissible evidence, without further proof, in any of the courts of this State. Or, if it appears to the court that the original conveyance has been lost or destroyed ; or, if the party offering a transcript from the registration, duly certified, has not the control or custody of the original, the transcript is admissible in its place. — Code of 1876, § 2154. The chapter of the Code devoted to conveyances and their registration, and which contains the provision to which we have referred, as to the mode of proving them, also provides, that “ when the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed-, or must be certified in writing thereon; in the first case, the instrument, and in the second the writing, must be signed by the party whose consent is required.”- — Code of 1876, § 2215. The appellant offered in evidence a certified transcript from the registration of the deed from England, the trustee, to Thompson, and of the consent of Mrs. England thereon [281] indorsed. To its introduction, the appellees objected, because it was “insufficient and illegal.” The objection was general, not specifying any particular ground. The particular grounds of objection now specified are, that as the instrument by which the consent of Mrs. England was manifested, was executed subsequent to the completion of the sale and execution of the conveyance from the trustee to Thompson, it was not in execution of the power of sale with which the trustee was clothed, and does not render valid the conveyance he executed. This objection, if true in point of fact, is addressed to the effect of the instrument, rather than to its admissibility as evidence, and is reserved for future consideration. The next point of objection is, that its execution by Mrs. England should have been proved otherwise than by the certificate of her acknowledgment of the execution, made before the notary public. It is not now, and does not appear to have been in the court below, a ground of objection, that the original was not produced, or its loss or destruction shown, or that the appellant had control and custody of the original. If this ground of objection had been distinctly made in the court below, it may be that the appellant could have obviated it; and the opportunity of obviating it certainly should have been afforded him. Whether the answer of Mrs. England contains an admission of the execution of the instrument, as was supposed by the chancellor, and, if it does, whether such an admission is evidence against her co-defendants, we do not propose to consider. Confining the parties to the objection made to its admissibility — that its execution could not be proved by the certificate of the notary public — we must pronounce the objection not well taken. This instrument is essentially, by the very terms of the statute, and by its own terms, a part of the conveyance upon which it is indorsed — as fully and completely, as if it had been introduced into the body of the conveyance. The object of the statute is to provide a certain mode of manifesting the consent of a third person to the execution of a power, when such consent is requisite; and when the consent is manifested by expressing it in the instrument by which the power is executed, as matter of evidence, it is not distinguishable from any other part of the instrument. If that instrument is a conveyance of real estate, the registration of which is authorized, the acknowledgment or proof of its execution brings it within the statute which authorizes such conveyances, or transcripts thereof, to be read in evidence without other proof of execution. Or, if it be not expressed in the instrument, but certified thereon, the instrument, if a conveyance of real estate, is, without it, [282] incomplete. As a conveyance, it is completed only by the certificate of the consent thereon indorsed. When such certificate is signed by the party giving the consent, it is a part of the conveyance, and the fact of signing may be acknowledged, or proved, as the execution of the conveyance can be acknowledged or proved. The registration of it is authorized, because it is part of the conveyance; a part necessary to its life, validity, and operation; and its registration being authorized, the privilege of proving its execution, by the certificate of a proper officer, attaches, as it does to other registered instruments. The controversy between the parties, its real merits, rest upon the effect of the instrument purporting to have been executed by Mrs. England. The trustee was not clothed with an absolute, unqualified power of sale. It was only with the written consent of his wife that the power of sale could be exercised. Now, it is certainly true, that when the consent of any person, either a party or a stranger to the instrument creating the power, or with or without a beneficial interest in its execution, is a requisite to a valid execution, there must be a strict compliance with this, as with any other condition. — 1 Sugden on Powers, 370 (marg. 3 L9). íf a particular mode of manifesting the consent is required, it can not be manifested in another; as, in the present case, mere verbal consent would not satisfy the terms in which the power is created and conferred. The written consent of the wife is essential, and without it a sale and conveyance by the trustee would be unauthorized, and not in execution of the power. But, when the consent of a third person is essential to the execution of a power, we do not understand that it is an inflexible rule, that such consent must be given before or at the precise time of execution. In all cases, it is enough that it is so given as to form a part of the transaction by which the power is executed. — 1 Sug. Pow. 374 (marg. 324). In Greenham v. Gibbeson, 10 Bing. 363, it was said by Tindal, O. J.: “Whether, in all cases, a consent, when necessary, must be given before the execution of a power, or whether it will in some cases be sufficient to ratify the execution of the power by a subsequent consent, it is unnecessary at present to determine. It is sufficient to lay it down, that where the nature and object of the power, and the circumstances of the case, point to a previous consent, then such previous consent is necessary, although not required by the terms of the power.” The intention of the donor or grantor in creating the power, its nature, and objects, and the purposes for which the consent is manifestly required, are important and controlling [283] considerations, in determining whether it should precede, concur with, or may be given subsequently to its execution. There is not, in the terms of this instrument, any limitation as to the time at which the consent of the wife to the execution of the power of sale should be given. Nor is there in the nature and objects of the power, or of the manifest purposes for which the consent of the wife to its execution was required, any reason for limiting its expression to the period of the sale and conveyance by the trustee. The present power is distinguishable from the pow’er in Bateman v. Davis, 3 Madd. 59, which was to be exercised with the consent of the wife, for the sole benefit of the husband. A subsequent approval of the exercise of the power by the -wife may not, in such case, be the equivalent of her previous consent; and the apprehension of pressure upon her judgment by the husband, to induce such approval, may be a sufficient reason for pronouncing it not the equivalent; though it would seem there was as much reason for apprehending such pressure, in procuring the consent, as in procuring a ratification. The power of the trustee was not here to be exercised for his own benefit. No advantage or benefit could accrue to him from its exercise. The proceeds of a sale would become funds which he would hold as trustee, subject to all the trusts imposed on the land, and which he was under the duty of re-investingjon the same trusts. The wife has a life-estate in the premises, as to which, in a court of equity, she would be regarded as feme sole; and if she survived her husband she becomes a trustee, clothed with an unqualified power of sale. Having a life-estate, and the remainder being limited to her children, the concurrence of her judgment with that of the trustee, husband and father, in a sale, was the purpose of making her consent the requisite of a valid execution of the power. The power could be executed at any time, during her life and that of the husband. There is no time limited, within which it was to be executed. Now, it is difficult to perceive any good reason for a construction of the power, compelling her consent prior to, or at the time of the sale by the trustee; or of declaring she *bould not ratify and confirm a sale made before her consent was given. These are questions we do not find it necessary now to determine; for her consent was given before the sale and conveyance was complete — it was a part of the transaction. It was not given in the manner required by the statute — it was not incorporated in the conveyance by the trustee, nor was it certified in writing thereon, until after the conveyance by him was executed. It was subsequently certified, just as the statute prescribes; and with the certificate the conveyance was [284] delivered into the office of the probate judge, for registration, from that time taking effect as a registered conveyance. The certificate recites, that the sale was with the full consent, and at the written request of the wife. The written request, addressed, as it must have been, to the trustee, would be evidence, to all to whom it was shown, of the authority to sell in the exercise of the power. Until there was a sale and conveyance, tbe consent could not be manifested as the statute requires it shall be, by being expressed in the conveyance, or certified in writing thereon. Until it was manifested in the one mode or the other, the transaction would not be complete; and when manifested, it would form a part of the transaction — a part within the contemplation of all the parties. Eor it is apparent from this instrument, signed and acknowledged by the wife, that her consent in writing to the sale was contemplated ; and hence it is declared the sale was made with her full consent, and on her written request. The instrument was intended, doubtless, not as a ratification and confirmation of an unauthorized sale, but simply to manifest, in the mode prescribed by the statute, the existing fact, resting in another writing, of her consent to the sale. The request in writing to the trustee, to make the sale, must have been intended, either as an execution, or as a step preparatory to the execution of the power, so far as it depended upon the consent of the wife; and in favor of a purchaser for a valuable consideration, a court of equity would have interfered and supplied its defects, if she had refused to complete it. — 1 Story’s Eq. §§ 169-174. _ _ We are of the opinion, that the sale and conveyance by the trustee is shown to have been with the written consent of Mrs. England, and is a valid execution of the power with which the trustee was clothed. This bill is, therefore, without equity. It discloses no more than an unquiet and unfounded apprehension of the validity of the appellant’s title, and a false, clamorous assertion of a hostile title. A court of equity can not interfere to quiet the one, or to silence the other. — Rea v. Longstreet, 54 Ala. 291. Eor this reason, the decree of the chancellor, reaching the proper result, must be affirmed.