Laughlin Bros. v. Fream

Green, President, delivered the opinion of the Court: The question presented by the record for the decision of this Court is, whether there be error in so much of the decrees of April 15, 1875, and April 17, 1876, as has been quoted above in the statement of this case. The residue of said decrees are not before us for review. In such residue the appellant, Abby Fream has no interest, and it is not involved in her appeal. The portion of the decree of April 15, 1875, appealed from, contains what, so far as the record is before us, seems to be a false recital, that is, “that the lot conveyed by J. Asberry and wife to Abby Fream ivas her sole and separate property.” And on this apparently false assumption, this and the decree of April 17, 1876, are in part based. Syllal)us By the deed of Asberry and wife, they simply “grant unto the said Abby Fream with general warranty” these lots. There is not a word in the deed, which in any manner indicates, that the grant was to her sole and separate use. It was dated August 4, 1855 ; and she was then married. It is therefore unquestionable, that she had no sole and separate property in these lots by virtue of this deed. It is equally obvious, that the character of her interest in these lots is in no manner affected by the first section of ch. 66 of the Code of "W". Va., passed since. It simply provides, that all property hereinbefore conveyed to a married woman by any person other than her husband as her sole and separate property shall be and remain'her sole and separate property. But this section has no application obviously, as this property was not conveyed to her as her sole and — 332 — separate prop erty by the deed. The’other sections of this. " chapter have obviously no application to this case. Abby Fream admits apparently in her answer, that under this deed her husband had his marital rights originally; but she claims, that she is now entitled to hold the same free from the control, debts and liabilities of her husband. This claim ig, I suppose, based on the provisions of chapater 66 of Code of West Virginia, and if so, has no foundation. I presume the court below took the same view, that she did in her answer, and if so, committed an obvious error. If there be nothing in the entire record showing, that she basa sep-erate estate in the property conveyed to her, by Asberry and wife except the deed, then she has no separate estate in this property, but her husband has his marital rights in the same, and it is liable to the payment of his debts to that extent. If however there be anything else in the récord now, or anything else be brought into it hereafter, when the case goes back to the circuit court, it may determine then, whether she has a sole and separate estate in this property, as this question is not now intended to be finally determined by this court. The only other question to be determined by us is : Did Abby Fream, by the deeds of trust of April 29? Syllabus 2. 1858, and January 22, 1872, convey her interest in these lots, which had been so conveyed to her by Asberry and wife, or did she thereby relinquish her contingent right of dower in any other real estate named in these deeds as owned by her husband, and in which she would have had such contingent right of dower, had she not signed said deeds ? It is clear, that both of said deeds are totally inoperative, so far as she is concerned, and they can have no other effect than to convey the interest of her husband J. Fream,'in the lands owned by him, subject to her contingent right of dower. The land owned by the firm of Johnson & Fream, in which she would have no contingent right of dower, if it were really partnership property, and his life-estate, by reason of his marital rights, in the lots conveyed to his wife by Asberry and wife, — 333 — which life-estate may be during the joint lives of himself and wife or of her own life, as under the facts he may be entitled to curtesy or not. They must have exactly the same operation and effect, as if they had been executed by him alone. The deed of trust of date April 29, was not acknowledged by her in such a manner as to make it binding upon her. This deed was made April 29, 1858 ; and the law prescribing the proper mode of acknowledging it may be found in the Code of Virginia of 1849, chapter 121, section 4, page 513. It provides that, when a husband and wife have signed a writing purporting to convey any estate, she may appear before a notary public, or other designated officer, and if on being examined privily and apart from her husband, and having such writing fully explained to her, she acknowledge the same to be her act, and declare that she had executed it willingly and does not wish to retract it, such notary, or other officer, shall certify the same in a prescribed form or a form to that effect; and 7th section of chapter 121 of Code of Virginia of 1849, page 514, provides, that when the privy examination, acknowledgment and declaration of a married woman shall have been so taken and certified, and the writing delivered to the proper clerk and admitted to record, as to the husband and wife such writing shall operate to convey from the wife her right of dower in the real estate embraced therein, and pass from her and her representatives all right, title and interest of every nature, which at the date of such writing she may have in any estate conveyed thereby. At common law the execution of a deed by a married woman was entirely inoperative. All the effect, which the execution by Abby Fream of the deed of April 24, 1858, can possibly have must be due to this statute. Effect is given to such execution by her by the terms of the law, only when, in the words of the statute, “ the privy examination, acknowledgment and declaration have been taken and certified as aforesaid.” The ac — 334 — knowledgment that th'e deed was her act was taken and certified ; but neither the privy examination was taken, nor the declaration made, that she had executed the deed ■willingly, so far as the certificate attached to this deed shows. Our courts have always required a substantial compliance with all the requirements of the law in the deeds of married women; and if in any particular there has been a failure to comply substantially with the law, our courts have declared the deed inoperative against her. In Countz v. Geiger, 1 Call 193, President Pendleton says: “ A feme covert can not pass her title withoiit a deed accompanied by a privy examination to evince that she does not do it under her husband’s influence.” In Harvey v. Pecks, 1 Munf. 518, it was decided, that “a deed from a husband and wife, without her privy examination and relinquishment, is utterly void as to her, and furnishes no consideration to support a subsequent conveyance.” In Hairston v. Randolph, 12 Leigh 445, it was held, that the certificate of privy examination of a married woman was fatally defective, which failed to show, that the deed was explained to the wife. In Grove v. Zumbro, 14 Gratt. 501, it was held, that the certificate of her acknowledgment, even before the court of another State, must show her privy. examination, and that the omission of any statement in the acknowledgment of a deed by a married woman, that she did not wish to retract it, was a fatal defect and rendered the deed inoperative as to her.' And the same was 'held by our Court in Linn v. Paton, 10 W. Va. 198, and Bartlett et al. v. Fleming et al., 3 W. Va. 165. Our court has also decided, that an omission in the certificate of any statement of a declaration by the married woman, that she had willingly executed the same, rendered the deed totally inoperative as to her. See Bartlett et al. v. Fleming et al., 3 W. Va. 163; Leftwitch v. Neal, 7 W. Va. 569. — 335 — The authorities in other States establish the proposition, that the certificate must show that the law has been in all respects substantially complied with. See Gill & Simpson v. Fauntelroy’s heirs, 8 B. Mon. 177; Blackburn’s heirs v Pennington, 8 B. Mon. 217; Watson’s lessee v. Bailey, 1 Binn. 470; Evans v. The Commonwealth, 4 Serg. & R. 272; Jamison v. Jamison, 3 Whart. 457; Webster’s lessee v. Hall, 2 Har. & M. (Md.) 19; Heath v. Eden, 1 Har. & J. (Md.) 751. These authorities abundantly show, that the certificate of the acknowledgment by 'Mrs. Abby Fream, in this case, attached to the deed of trust of April 29, 1858, is fatally defective as to her. The portion of it intended, it is supposed, to show her privy examination simply says : “ Personally appeared before me Abby Fream, and being by me in accordance with the law in this case made and provided, acknowledged, &c.” It does not state that she was examined at all, much less privily examined apart from her husband. If it had even said “ being by me examined according to law,” it would still have been fatally defective; for the notary public was a ministerial, not a judicial, officer in this case, and whether the examination was made according to law, it was not his duty or province to decide. It was his duty to state the facts in regard to her examination, and leave it for the court to decide, whether she was examined according to law. Gill & Simpson v. Fauntelroy’s heirs, 8 B. Mon. 179. Again this certificate to the deed of April 29, 1858, totally fails to certify her declaration “that she had willingly executed the same.” And this has been expressly decided by this Court iu the case of Leftwick v. Neal, 7 W. Va. 569, to be a fatal defect in the certificate. It is therefore unnecessary to consider other matters, in which it is claimed that this certificate is defective. The deed of April 29, 1858, was clearly inoperative and void, so far as it undertook to convey any interest of the married woman, Abby Fream, though it was valid and — 336 — operative to convey her husband’s interest in the property thereby convoyed. The deed of January 22, 1872, was also totally inoperative and void as to Abby Fream. The certificate of her acknowledgment of it is in legal Syllabus 3. form ; but she is on the face of this deed not one of the grantors, nor is she in any way named in, or referred to in this deed, except in the concluding clause, which is “now, therefore, said Fream and wife do appoint and substitute Adolphus Armstrong trustee in the place of said Kimble, and do authorize and fully empower him to execute said deed of trust of April 29,1858, as fully- and effectually in all respects as said Kimble could have done, if living.” This provision professed only to substitute one trustee for another; and this deed of April 29, 1858, having failed to convey her interest in the property purporting to be conveyed by it, this last deed could have no effect on her, it was inoperative as to her interest in the Asberry lots, because that interest was not conveyed by the deed of April 29, 1858 ; and if she had any dower or other interest in the lands conveyed to her husband Jacob Fream by this deed of January 22, 1872, it was not thereby conveyed, as she was not a grantor in this deed. It was therefore totally inoperative as to her. I conclude therefore, that the decrees of April 15, 1875, and April 17, 1876, in expressing the opinion that the lots conveyed to Abby Fream by Asberry and wife were her sole and separate property, were erroneous, unless there is some evidence thereof contained in portions of the record not before this court; and that the circuit court in said decrees also erred in holding, that either the deed of April 29, 1858, or that of January 22, 1872, were operative and valid as to Abby Fream, or that any interest of her’s was by said deeds conveyed, or in any manner affected; and also so far as the court directed the sale of any of her interest in any of the property ordered to be sold; she never having conveyed any of her own property, or relinquished any contingent dower interest in any of her husband’s property by either of said deeds. — 337 — In the view taken by the circuit court, it probably regarded it as unnecessary to determine the question raised by the bill, whether the improvements on the Asberry lots were liable to the debts of Jacob Fream, because though put on his wife’s land, they were paid for by him and no decision of this question has been made by the circuit court, and it would be therefore improper for us to express any opinion on the subject till the circuit court has acted upon this question, which it may do when this cause is remanded to that court. So much therefore of the decrees of April 15, 1875, and April 17, 1876, as adjudged in the present state of this case that Abby Fream has a sole and separate interest in the lots conveyed to her by As-berry and wife by the deed of August, 4, 1855/and so much of said decrees as adjudged that the deeds of trust of April 27, 1858, and January 22, 1872, or either of them, constituted valid and subsisting liens on the interest of Abby Fream in any of the property, which was conveyed by said deeds, and also so much of said decrees as adjudged that her interest in the said lots conveyed to her by Asberry and wife, or her contingent dower interest in any of the real estate of her husband, was liable to be sold, or as ordered the sale of any of her said interest on certain conditions, are hereby reversed and annulled; and the appellant must recover of the appellees her costs in this Court expended ; andas to the residue of said decrees this Court decides nothing, as such residue of said decrees is not before this Court for review by this appeal; and this cause must be remanded to the circuit court of Preston county, with instructions that it be further proceeded with according to the principles laid down in this opinion, and further according to the rules and principles governing courts of equity. The Other Judges Concurred. Decrees Beversed. Cause Demanded,