Bartlett v. Fleming

Brown, President, delivered the opinion of the court. This is an appeal from the decree of the circuit court of Taylor county, dismissing the complainant’s bill for specific performance. There is but one question of law presented in the case, and that is whether the certificate of the justices of the execution of a deed by a married woman, which omits to state that she had the "deed fully explained to her, or had willingly executed the same and wished not to retract her execution of it, is evidence of the execution of such deed. This certificate is radically defective and the deed inoperative as to the wife. Hairston vs. Randolph, 12 Leigh, 445; Countz vs. Geiger, 1 Call, 190; Harvey vs. Peck, 1 Munf., 518. Upon the whole facts of the-case it is manifest that the complainant was entitled to the relief■ sought, and that the court belowq therefore, erred in dismissing his bill. [165] The decree of the circuit court must, therefore, be reversed, with costs to the appellants here, And this court proceeding to render such decree as the court below ought to have rendered, doth adjudge, order and decree that the said Johnson C. Fleming and John W. Sinsel convey, by proper and apt deed of conveyance with covenants of general warranty, to the complainant Robert Bartlett the said lot or parcel of laud in the bill mentioned, with mill' and appurtenances and everything connected with said lot and mill, according to the tenor and effect of the title bond from said Johnson C. Fleming and the said John W. Sinsel. And it further appearing that the said title bond has been destroyed by the said Fleming, so that its contents cannot be seen and inspected by the court; but its contents being fully proven by the evidence in the cause to the tenor and effect, viz: a certain lot or parcel of land lying on each side of Berry’s run, described in said title bond to contain one and a half acres more or less, but containing by survey one acre and fifty-seven rods, of which one acre and seventeen rods lie on the north-west side of the run and forty rods on the south-east side thereof; the former having the mill on it and the latter the Goodwin house, aud which said lot is bounded as follows: “Beginning at a white oak on the south-west side of said run, thence S. 8, E. 9 poles and 171½ links to a stake, thence S. 85, W. 7 poles and 17| links to a stake on the east bank of Berry’s run, thence S. 47-J, W. 10 poles and 5 links to a stake, thence N. 13|, W. 9 poles and 4 links to a stake, N. 24J, E. 8 poles to a stake, N. 40£ E. 14 poles to a stake, S. 60, E. 4 poles and 8 links to a stake, S. 26, ~W. 6 poles and 14J links to a stake, S. 59, E. 2 poles and 12J links to the beginning containing one acre and fifty-seven rods, together with the appurtenances and everything connected with said lot and mill, including therein the privilege and use of the dam and the race and water leading therefrom to the said mill, (also the road and necessary right of way along said race to said dam, and of ingress and egress over the land of said Fleming), and the further privilege of repairing the said race and dam, pro166 vicled, however, the said dam shall not be raised higher than it was on the 21st day of May, 1858; also the nse and privilege of the log-yard theretofore used in connection with said mill across the.race, to have and to hold, use and enjoy the same free and unobstructed by the said Fleming and his heirs and assigns. And it is further adjudged, ordered and decreed that the complainant Robert Bartlett recover against the said defendants Johnson 0. Fleming and John W. Sin-sel his costs by him about his suit in his behalf expended in the court below. Deoree reversed.