Adams v. Medsker

SNTDer, Judge: Suit in equity brought July 6, 1876 in the circuit court of Harrison county by George Adams and other judgment creditors of O. L. Medsker against said Medsker, his wife and others, to subject to the payment of their judgments a tract of 251 acres of land lying in said county. The said land originally belonged to the estate of Philip Lyons who died intestate in the State of Pennsylvania in 1845, leaving six children as his heirs at law, one of whom is the appellant. The said Medsker and wife were living on said land when said Philip Lyons died and they have continued to reside thereon over since. The judgment of the plaintiffs and others, aggregating over $5,000.00, were recovered in September, 1866, and some, or, perhaps, all of them were entered on the judgment lien docket of said county in January, 1867. By a written agreement, dated June 13, 1847, the other heirs of Philip Lyons, in consideration of $2,000.00, sold and agreed to convey to the appellant, Mary Medsker, said land on or before April 1,1849. The consideration for said land was afterward paid out of the share of said Mary in her father’s estate. This agreement was never recorded. Subsequently by deed dated March 20, 1854, in which all the said heirs, their wives and husbands other than said Mary, except Morgan Lyons and his wife, are named as grantors, the said heirs so [129] named conveyed said land with covenant of general warranty to 0. L. Medsker, the husband of* said Mary. This deed was signed and sealed by all said heirs including said Morgan Lyons and his wife, except the said Mary Medsker and Thomas Campbell and his wife, and was on May 26, 1855, duly acknowledged by Elizabeth Herzog, one of said heirs and her husband, and as to the others the certificate of acknowledgment endorsed thereon is as follows: “Fayette County, ss : The 20th day of March, A. D. 1854, before the subscribers, two of the justices of the peace in and for said county, personally appeared the within named William Lyons and Agnes, his wife, Thomas Campbell and Nancy, his wife, John A. Lyons and Margaret, his wife, and Samuel Lyons, and in due form oí law acknowledged the within indenture to be their act and deed and desired the same might be recorded as such and the said Agnes, Nancy and Margaret being of full age, and separate and apart from their said husbands, being personally examined and the full contents of the within deed being by us first made known unto them, and thereupon declared and say that they did voluntarily and of their own free will and accord, sign seal and as their act and deed deliver the within deed, indenture or conveyance, without any coorsion or compulsion of their said husbands.” A similar cerficate of the acknowledgment of the deed by Morgan Lyons and wife is endorsed thereon. The authority of the justices to take these acknowledgments, is duly certified under the seal of the court of common pleas of Fayette county, Pennsylvania, and the deed was admitted to record August 81, 1856 in Harrison countyv After the plaintiff’s judgment had been recovered and docketed, the said O. L. Medsker, by deed dated November 25, 1867, and promptly recorded, conveyed all his interest in the said land to his wife, the said Mary, and his two daughters. In May, 1877, the said Mary exhibited her bill in said court against her husband, the heirs of her father, the plaintiffs in the original suit and others for the purpose of having a specific execution of the aforesaid agreement of June 13, 1847, and to compel the other heirs to convey to her the legal title of said laud according to said agreement and also [130] to require her husband to release to her any title he may liave acquired by said deed of March 20, 1854, to her. The two causes were heard together and the court decided that the said deed of March 20, 1854 to O. L. Medsker conveyed to him only the one-sixth interest of Elizabeth Herzog in said land, and that said one-sixth and the life estate of said Medsker in the one-sixth which descended to his wife were liable for the plaintiff’s judgment, but that the said deed did not vest the title to the other four-sixths in said O. L. Med-sker, and his wife was, therefore, 'entitled to a conveyance therefor from the heirs of her father. The court, thereupon, decreed that said one-sixth conveyed by Herzog and wife and the life-estate of her husband in the one-sixth descended to the said. Mary Medsker, should be sold to satisfy the plaintiffs judgment. A sale thereof was made and confirmed and the said Mary Medsker brought this appeal. The appellant insists that the court erred in holding that her husband had any interest in said 251 acres of land which could be subjected to the judgments against him ; while on the other side, the appellees, the judgment creditors, contend that the court erred in holding that the two-sixths only were liable for the satisfaction of their judgments. It seems to me, then, that the real question to be decided, and the only one is, what portion, if any, of said land is liable to said judgments? And the answer to this depends very much, it not entirely, upon the effect of the aforesaid deed of March 20, 1854, from the heirs of Philip Lyons to O. L. Medsker. For, I cannot doubt, whatever interest was vested by said deed in said Medsker, together with the interest he held as tenant by the courtesy in the share of his wife, was clearly liable for the payment of said judgments. The said deed has hereinbefore been fully described, and the certificate of acknowledgment, claimed to be defective and insufficient, is given at large. I have no hesitation in deciding that said deed did not convey the interest of Morgan Lyons. "While he signed and acknowledged it as his deed, he is nowhere mentioned in it or made a party to it. Neither his signature to, or acknowledgment of it state or indicate whether he so signed and acknowledged it as grantor or grantee. But if this were otherwise, and it appeared that he [131] intended to be a grantor, it could not be held to be his deed. It is elementary law that every deed must have a grantor as well as a grantee. No one who is not a party to the deed can be bound by it or by its covenants. And no one can be a party who is not mentioned or referred to therein. The mere signing and acknowledging it, when there are grantors named in it, is insufficient to make the person so signing it a party to it, even though it appeared by extrinsic evidence that he intended thereby to make it his deed. The said deed is equally bad as to Thomas Campbell and Nancy his wile — the latter being one of the children and heirs of Philip Lyons, deceased — because it is not signed by either of them. They are named as grantors in the deed, but to make it their deed it must not only have been signed but sealed by them. Cromwell v. Tate, 7 Leigh 301; Pratt v. Clemens, 4 W. Va. 443. The acknowledgment of the deed is plainly insufficient for the relinquishment of the contingent dower rights of Agnes and Margaret Lyons, they being, as the certificate shows, married women. Watson v. Michael, 21 W. Va. 568. But it seems to me, there ought to be no question about the sufficiency of the acknowledgment as to the two heirs, William and John A. Lyons. The certificate does not show , on its face ‘the State, but the deed shows that the parties resided in the State of Pennsylvania, and the certificate accompanying it, under the seal of the court of common pleas of Fayette county, states that the justices who took the acknowledgment were then justices of Fayette county, in the State of Pennsylvania. This is sufficient to show that the Fayette county mentioned in the certificate is in the State of Pennsylvania. The appellant objects that it does not state that the parties signed the deed nor give the date of the deed. It is sufficient that the deed shows that these parties signed it. The usual form gives the date of the deed, but that is only done to identify it, and this certificate identifies it as “the within indenture,” which refers to and identifies the deed as fully as if its date had been given. I think, therefore, said deed was duly acknowledged by the said William and John A. Lyons, and that it vested in the said O. L. Medsker their two-sixths of the said 251 acres of land, and [132] that tbe circuit court erred in not bolding said two-sixtbs liableto sale for tbe plaintiffs judgments against said Medsker as well as tbe one-sixtb acquired from TIerxog and wife and bis life estate in the one-sixtb of bis wife. The doctrine of the wife’s right to an equitable settlement does not. arise in this cause. She is entitled to such settlement only in cases where tbe husband or bis creditors are seeking in equity to recover or subject tbe wife’s property not in the possession of the husband but which be is entitled to jure m.ariti. In silabeases courts of equity will grant rebel only upon condition that such settlement is made of a reasonable portion of such property. 1 Bart. Ch. Pr. 9 ; Browning v. Headly, 2 Rob. R. 871. Tbe appellees claim that according to tbe decision of this court in Cooey v. Porter, 22 W. Va. 120, tbe adverse possession of flic land by tbe husband under tbe deed of March 20, 1854, to him, would give him title to tbe whole of it including. tbe interests of those of tbe heirs who were married women during the whole time. In that case the adverse possession commenced more than twenty years before tbe suit was brought, and continued up to that time, but in this case tbe husband, on November 25, 1807, conveyed tbe land by deed of that date to bis wife. After that time his possession ceased to be adverse. lie was then bolding adversely only from March 20,1854, to November 25, 1867, which was less than fourteen years and, therefore, tbe doctrine of tbe case of Cooey v. Porte,r has no application here. Tbe decree of the circuit court must, therefore, bo affirmed as to tbe sale of tbe one-sixtb of tbe said 251 acres of land in fee and tbe life estate of O. L. Medsker in one-sixtb which descended to his wife; and so far as s aid decrees deny tbe right of tbe appellees, tbe plaintiffs below, and other judgment creditors, to subject to tbe payment of their judgments tbe two-sixtbs of said laud conveyed by Williaui and John A. Lyons to O. L. Medsker they must be reversed with costs to said appellees, they being the parties substantially prevailing. And this case is remanded to the said circuit court for further proceedings according to tbe principles hereinbefore announced. Beveiised ih Past. BemaNded.