Laidley v. Knight

Woods, Judge : It is unnecessary to consider all the errors assigned by the plaintiff. Two questions meet us at the threshhold demanding our consideration; if these be determined in favor of the plaintiff, all other questions discussed by her counsel become immaterial. — 740 — Whatever rights the executrix of Edward C. Burton may he supposed to have, for the security of her debt, must depend upon the validity of the deed of trust to the defendant Knight; and this in turn depends upon the validity of the deed made by Alexander T. Laidley and wife on June 23rd, 1866. It is apparent that all the property mentioned in both of said deeds, was the property of the appellant. It is equally clear that the appellant and her husband, on June 23rd, 1866, intended to vest -the legal title to all of her estate in Wm. A. Quarrier to hold the same for her sole and separate use from the debts, control or liabilities of her husband, and that thenceforth he was-to have no interest in, or control over it, except in so far, as certain privileges were granted him by said deed, which we need not consider. The trustee Quar-rier was to hold the legal title for her sole use, and was bound to convey, and- could only convey, whenever, and to whom, and for such uses, and upon such trusts, as the appellant might request in writing, signed by herself and attested by one respectable witness. It the deed to the said Quarrier was valid, then it becomes wholly immaterial whether the said deed of trust to Knight ■was executed by the appellant and her husband or not, provided only that she requested said Quarrier in a writing signed by her, and attested by one respectable witness, to execute the said deed of trust to secure said debt, and that in pursuance of such request he did execute the same, for in that case, as was held by this Court in Norvell v Hedrick, 21 W. Va. 523, the deed of trust to Knight by Quarrier, under said power to convey from appellant and her husband, would operate as a grant from themselves, and it would be wholly unnecessary for them to join said Quarrier in the execution of said deed of trust to Knight. Was the deed of the 23d of June, 1866, a valid deed, and did it effectuate the intention of the grantors and vest the legal title to said lands in the said Quarrier, for the uses therein mentioned ? Being the real estate of the wife, does the certificate of her acknowledgment of this deed, show that all the requisites of the statute in that case made and provided, have been substantially complied with? .What are — 741 — these requisites.? • 1st. That she must appear before the proper officer; she must be by him examined privily and apart from her husband; the deed must be fully explained to her; then she must acknowledge the deed to be her act; she must then make two declarations, viz: that she had willingly executed the same; and that she does not wish to retract it; and all this must be reduced to writing and certified by the officer taking the same, either on the deed or annexed thereto, and recorded with the deed. All of these things are absolutely necessary before a married woman can pass the title to her real estate, and the certificate of the officer who took the acknowledgment must show on its face that every one of these things has been substantially done, and if the certificate fails to show they have been done, it matters not that they have in fact been done, for the deed will nevertheless be void as to her. The first in order and the first in importance is, that the wife shall be examined privily and apart from, her husband, and all the other essential acts must be done, while she is thus separate and apart from her husband; and it must appear from the certificate of the officer who took the acknowledgment, that every one of these acts was done, while the wife was being examined primly and apart from her husband, and unless it does so appear her acknowledgment will be insufficient to convey her title. The first cerifícate appended to the deed of the 23d of June, 1866, while good as to Alexander Laidley, was clearly insufficient as to his wife. The certificate of the acknowlment of said deed made by the appellant on the 27th day of August, 1873, shows that while she was being examined separate and apart from her husband the deed was fully explained to her, and that she declared she had willingly signed, sealed and delivered the same, and did not wish to retract it, but it does not show that she acknowledged it after it had been, fully explained to her, and when she was being examined privily and apart from her husband. Tor aught that appears she may have acknowledged it in the presence of her husband, and before she understood or was informed what was the meaning of the deed, or what''effect it would have upon the title to her lands. This whole question has been fully considered by this Court in the cases of McMullen v. — 742 — Megan, 21 W. Va. 233, and in Watson v. Michael, Ib. 568. In the first of these cases the certificate of acknowledgment showed' that the husband and wife together acknowledged the deed, and although it showed that the wife was examined privily and apart from her husband, and had the deed fully explained to her, and that she declared she had willingly executed the same, and wished not to retract it, yet this Court upon a full review of all the authorities held, that because the certificate failed to show that she acknowledged the deed while she was being examined privily and apart from her husband, and after the deed was fully explained to her, her acknowledgment was insufficient, and the deed inoperative to convey her lands; and Judge Green, in delivering the opinion of the Court, says: “The language of section 4 of chapter 73 of the Code of "West Virginia, seems clearly to indicate that the privy examination of the wife, separate and apart from her husband, and the full explanation of the deed to her must frece,de the acknowledgment of the deed by her.’'’ In the case of Watson v. Michael, Judge Johnson, delivering the opinion of the Court, says: “The first requirement is, that the wife shall be examined privily and apart from her husband touching the execution of the deed. While she is undergoing this private examination four things are by the statute absolutely required. First, the. deed must, be full] explained to her. After it has thus been fully explained to her, she must therl acknoioledge it. After this she must make two declarations. First, that she had willingly executed the same; and the second, that she does not wish to retract it. All these things must appear in the certificate.” We are therefore of opinion that the certificate of the acknowledgement of the appellant to the deed of June 23rd, 1866, is fatally defective, and that the said deed is inoperative to convey to the said Quarrier her title to the lands therein mentioned. It follows therefore that the said Quarrier, by the execu-cution of the deed of trust to E. 13. Knight, at the written request of the appellant, conveyed to him no title to the two parcels of land therein mentioned. But as we have seen, that the appellant on the 12th day of January, 1875, was still the owner of said two parcels of land, it was competent for her and her husband on that day, to execute the said deed — 743 — of trust to Knight, to secure, the payment of the one thousand and fifty dollars due the executrix ot Edward 0. Burton. The fact that Quarrier who had no title joined with them in said deed, would not impair its force or effect. Is the appellant hound by this deed? Here again she insists she is not bound, because the certificate of her acknowledgment to this deed is insufficient to pass her title to the two parcels mentioned therein. Here the certificate is precisely like the certificate in McMullen v. Eagan, supra. The acknowledgment is made by the appellant and her husband jointly, and although it appears in the same certificate, that “ being examined privily and apart from her husband, and having the deed fully explained to her, she declared she had willing signed, sealed and delivered the same, and did not wish to retract it, yet it does not appear, that she acknowledged the same, while she was being examined privily and apart from her husband, and after the same had been fully explained to her, and for these reasons we are ot opinion that the said certificate of acknowledgment is also fatally defective, and that the said deed of trust of Knight is inoperative to convey to him the title of appellant to the two parcels of land therein mentioned. Wo are further of opinion that the decree of the circuit court of Kanawha county, rendered in this cause on the 7th day of April, 1882, is erroneous and must be reversed, with costs to the appellant. And this Court now proceeding to render, such decree as the said circuit court ought to have rendered, it is adjudged, ordered and decreed, that the said deed of trust dated the 12th day of January, 1875, to E. B. Knight, trustee, to secure to Helen M. Burton, executrix of Edward C. Burton, deceased, the sum of one thousand and fifty dollars, is, as to the appellant, Dulce Rowena Laidley, inoperative and void, and that the injunction heretofore awarded to the appellant restraining and enjoining the said E. B.,Knight and Helen M. Burton, executrix of Edward C. Burton, from selling the said parcels in said deed of trust mentioned and described, be, and the same is hereby, made perpetual, and that the said Helen M. Burton, executrix as aforesaid, out of the assets of her testator in her hands to be administered do — 744 — pay to the appellant her costs by her about the prosecution of her suit in' the said circuit court, and in this Court expended. REVERSED.