Pickens v. Knisely

Johnson, President : On the 28th day of August, 1866, Stephen Arnold, of Barbour county, conveyed to his daughter, Sarah Jane Knisely, a tract of land in said county “ subject to this condition, that the same shall not operate as a conveyance of the legal title to said land or the right to the possession thereof until after the death of the said Stephen Arnold.” On the 15th day of December, 1868, L. M. Knisely and the said Sarah Jane Knisely, his wife, executed their joint and several bond to James Pickens for the sum of $1,650.00. On the ,9th day of September, 1871, the same parties executed and delivered to the said James Pickens their bond for $1,200.00. On the 15th day of December, 1868, Knisely and wife conveyed in trust to R. W. Daniels, trustee, to secure the payment of said $1,650.00 bond, the said tract of land conveyed to Sarah Jane Knisely by her father, Stephen Arnold. This deed was acknowledged by the grantees before Michael Simon, a justice, on the 18th day of December, 1868, and was recorded on the same day. The certificate of acknowledgment as to Mrs. Knisely is as follows: “ West Virginia, Darboicr County, to-wit: “ I, Milcel Simon, justice of Union Township, in the county aforesaid, do certify, that Sarah J ane Knisely, the wife of the above named L. M. Knisely, personally appeared before me in my township and being examined by me privily and apart from her husband and having the above deed of trust — 3 — ■date December the 15th, 1868, fully explained to her, she, the said Sarah Jane Knisely, acknowledged the said wrightly to be her act and declared, that she had willingly, acknowledged the same and did knot wish to retract it. Given under my hand this 18th day of December, 1868. “Michael Simon, Justice” On the 9th day of September, 1871, the same parties conveyed the same land to Nathan J. Coplin, trustee, to secure the said $1,200.00 bond, and on the same day acknowledged the said deed before Henson L. Hoff, justice. The acknowledgment is in almost the same words as the acknowledgment before justice Simon concluding as to Mrs. Knisely:— “ And being examined by me privily and apart from her husband and having the above deed of trust, dated September the 9th, 1871, fully explained to her, she, the said Sarah Jane Knisely, acknowledg the said wrighting to be her act and declared, that she had willingly acknowledg the same and ■did not wish to retract it.” At April rules, 1874, Pickens filed his bill in the Circuit Court of Barbour county.setting forth the above stated facts and praying, that the said deeds might be construed to ascertain, what interest Sarah Jane Knisely had in the land, and that all the interest of Knisely and wife therein might be sold, and the proceeds of sale be applied to discharge said trust-liens, and for general relief. Sarah Jane Knisely an swered the bill; and in her answer she admitted the execu tion of the bonds but averred, that she was only the surety of her husband, and that her separate estate could not be sold to pay said debts. She admits, she signed said deeds but says, she signed them by direction of her husband. As to her alleged acknowledgment of the deed of December 15, 1868, she says : — “ She utterly denies, that the same was ever acknowledged by her, and she says, that the certificate of acknowledgment and privy examination of and by her of justice Michael Simon of the date of the 18th day of December, 1868, as the same seems to be appended at the foot of the said deed, is wholly erroneous and contrary to truth and fact.” As to the acknowledgment of the second deed of trust she is silent in this answer. She filed an amended answer, in which she claimed, that the certificates of her privy ex4 animation to said deeds were fatally defective, and said deeds were not binding on her. L. M. Knisely answered the bill and in his answer said — ‘‘ Respondent did insist upon his wife and co-defendant, Sarah Jane Knisely, signing said obligation as respondent’s surety, which she thereupon did; and she also in like manner signed her signature to the said trust-deed; but he denies, that she acknowledged the same, and says, that the certificate of the justice to the facts stated in it as to his said wife’s acknowledging the said deed are untrue and were procured to be done by the plaintiff for the purpose of acquiring by fraud the real estate of his wife in security and discharge and satisfaction of his demand against this respondent, who was unable to pay him otherwise.” He says nothing about the certificate to the second trust-deed. He pleads usury in the debt and claims, that he is entitled to be relieved of all usurious excess. Depositions were taken. The cause was referred to a commissioner to state an account. The report was filed and exceptions endorsed, which were not passed upon by the court. On the 30th of October, 1883, the court dismissed the bill with costs. From this decree Pickens appealed. The court must have dismissed the bill, because in its opinion the certificate of acknowledgment of Mrs. Knisely to the two deeds of trust executed by her on her separate estate were fatally defective; for if they are not, one of the deeds-at least would be good, even if the other should be held void, on the ground that she never acknowledged it at all. Are the twc certificates above referred to fatally defective ? It is well established by our Court, that a literal compliance with the statute is not required, but there must be a substantial compliance with all the requirements thereof. (Watson v. Michael, 21 W. Va., 568). Do the certificates-substantially comply with the statute? We have but one case in our Court having any bearing upon the subject, and that is Watson v. Michael, supra, where it was decided, that-the words — “ and the deed being read to her ” — were not equivalent to the words required by the statute — “ being fully explained to her.” In all of the other cases there was a clear omission of one or more of the positive requirements of the statute. Here the omitted words are — “ willingly executed — 5 — the same —and the substituted phrase is— “had willingly acknowledged the same.” These certificates show, that the married woman personally appeared before the justice, and proceed — “and being examined by me privily and apart from her husband and having the above deed of trust date December 15,1868” (in the one case and September 9, 1871, in the other) “fully explained to her, she, the said Sarah Jane Knisely, acknowledged the writing to be her act and declared, that she had willingly acknowledged the same and did not wish to retract it.” In Boykin v. Rain, 28 Ala. 332, the statute required the certificate to show, “that she signed and sealed and delivered the same as her voluntary act and deed without any fear, threats or compulsion of her husband.” The certificate showed, “that she signed, sealed and delivered the above instrument of mortgage-deed on her own free will and accord and without any fear, persuasion or threats from her said husband, and for the express purposes therein stated.” The court decided, that the certificate was not either in words or substance the acknowledgment required by law. It was essential, that she should acknowledge among other things, that she executed the mortgage ‘-‘without any fear.” She has not acknowledged this nor anything in substance the same. It will not do to say, she acknowledged something like it. Resemblance is not identity. Fear may exist on the part of the wife, without any force, persuasion or threats from the husband. Her acknowledgment, that she executed the deed on her own free will and accord is not identical in substance with acknowledging, that she executed it freely without any fear of her husband. Fear may exist and often does exist in a degree so moderate, as not to destroy the freedom of the will.” In Pennsylvania the statute required, that the person taking the acknowledgment “should read to the wife or otherwise make known to her the full contents of the deed.” In McIntyre v. Ward, 5 Binn. 296, it appeared, that the certificate of acknowledgment showed, that the wife “acknowledged the indenture of bargain and sale to be her act and deed according to its true intent and meaning, and the land and premises therein mentioned to be bargained and sold — 6 — with all and every the appurtenances to be the right, title, interest, estate and property of the within named Samuel Todd, his heirs and assigns forever.” The court held that a substantial compliance with the statute. Tilghman, 0. J., for a majority of the court said: — “She knew then, that the land was conveyed to Todd in fee simple, which is the es-sentia] part of the deed; and it may be fairly presumed, that this was communicated to her by the justices, who took her acknowledgment, although I do not consider that to be material, provided it appears, she had the knowledge. * * * Considering the whole of this certificate then, it sufficiently appears, that the contents of the deed were known to her.” In Shaller v. Brand, 6 Binn. 435, it appeared, the statute directs the person taking the acknowledgment of a married woman “shall examine the wife separate and apart from her husband and shall read or otherwise make known to her the full contents of the deed; and if upon such separate examination she shall declare, that she did voluntarily and of her own free will and accord seal and as her act and deed deliver the said deed without coercion or compulsion by her husband, then the said deed shall be good and valid.” The certificate as to the wife showed only this : — “She, the said Catharine, being of full age, separate and apart from her husband by me examined, and the full contents made known to her, voluntarily consenting thereto.” In this case, Tilghman, 0. J., delivering the opinion of the court, said : — “It is not straining the expression — ‘voluntary consenting thereto’ — too far to say, that it implies, she declared, that she executed the deed voluntarily, and that is sufficient; for if the execution was voluntary, it was without coercion or compulsion. I am clearly of opinion therefore, that by this deed the estate of the wife was legally conveyed.” We do not say, that we approve those two decisions in their entirety, but cite them to show, how liberal the Supreme Court of Pennsylvania has been in holding words used to be the equivalent of those required by the statute. We shall not have to go to this extent of liberality to hold the certificates here a substantial compliance with the statute. In giving a construction to the language used we must look to the whole certificate, just as we would in construing — 7 — any other instrument. The justice certifies, that he has examined Mrs. Knisely separately and apart from her husband ; that during such privy examination he fully explained to her the said writing, that she then acknowledged the same, that she then declared; that she “had willingly acknowledged the same, and that she did not wish to retract it.’’ When it is said, she had willingly acknowledged the same, it seems clear to ús, taking the whole certificate together, it was not meant, that she had during the privy examination then being had “willingly acknowledged the deed.” There would be no meaning in that. It was not the duty of the justice to ask her, whether she was willingly then acknowledging the paper, or whether she was willingly then declaring, that she had “willingly” executed the same, and did not then wish to retract it. If we give the ceitificate the construction contended for by counsel for appellee, we would have to hold, that during her examination separate and apart from her husband she acknowledged the deed and declared, that she had willingly then acknowledged it, and she did not wish to retract the acknowledgment thus willingly made. What was it she declared, that she did not wish to retract? Certainly the execution of the deed. And when she declared, that she “had willingly acknowledged the deed,” she meant that she had willingly executed it; that is, she declared, that she had willingly signed and sealed the deed free from the control of her husband, and that act she did not wish to retract. This is the true sense and construction of the instrument ; and it would be technical indeed to hold, that this was not a substantial compliance with the statutory requirement. In the case of Boykin v. Rain, 28 Ala. 332, there were no words used, which by any reasonable construction could be held to mean, that she had executed the deed without any fear of husband. It was necessary, that such words should be used. Here, we think, it is plain, that every requirement of the statute was complied with. But as to the. deed of December 15,1868, a more serious question is raised. The answers of the defendants both plead the fact, that Mrs. Knisely never acknowledged that deed at all. This is sustained by her own deposition and also by the deposition of her husband, L. M. Knisely, and by the justice — 8 — Michael Simon; and there is not a particle of evidence save the certificate itself to contradict these witnesses. This raises the interesting question, — whether under any circumstances the certificate of the justice or notary to the examination of a married woman can be contradicted by parol, and the further question, whether, if so, the evidence of the justice or notary is competent to impeach it. The case of Harkins v. Forsyth, 11 Leigh, takes very strong ground against both propositions. In that case a bill was filed to enforce a deed of trust. Mrs Harkins in her answer admitted, that she signed the deed. She averred, that the two justices of the peace asked her in the presence of her husband, if she acknowledged it to be her act and deed and had willingly signed, sealed and delivered the same, and whether she wished to retract it. But she averred, and she charged the fact to be, that the justices did not read the deed to her nor in any manner whatever explain it to her. On the part of the defendants the depositions of both the justices were taken, and they say, that they did not read or explain the deed to Mrs. Harkins, it not being their habit to do so. The court decreed the land to be sold. Elizabeth Harkins appealed. Tucker, President, said the question was one of great importance and of first impression in that Court. After stating, that at common law a married woman could not by joining in a deed bar herself or those claiming under her of her own estate, he said: — “In process of time fines were adapted to this end, by which the rights of a wii'e might be successfully passed. But to prevent imposition upon her it was at length provided by statute, that, where a feme covert was one of the parties to a fine, she should be privily examined, and, if she refused her assent, the fine should not be levied. He says, this proceeding was the prototype of our privy examination. But though the privy examination was positively enjoined by statute, yet if a feme was allowed to acknowledge a fine without examination, it nevertheless bound her and could, not be reversed; for she could not contradict the record, which set forth her examination. He shows, that in Virginia as a substitute for the fine a deed accompanied by a privy examination of the feme has been adopted, which — 9 — •could, be either before a court of record or before two justices •of the peace. In both cases'the same requisitions exist. Where this examination is had in court, it must be conceded, that it is altogether conclusive, and that no allegation can ibe admitted to contradict the entry, however much that may be at variance with the real facts. The second mode of privy examination is by two justices of the peace; and it seems to be supposed, that, because it is a matter in pais, the certificate of the justices may be directly contradicted and the deed vacated by the testimony of witnesses and even by the depositions of the justices themselves. He says, such a position is at variance with the spirit and object of the law and also with the very terms of the law. He further says : “If the door be once opened to the contradiction of the magistrates’ certificates, where is the point, at which we shall stop ? The writing must be explained; and, if the certificate, that it was explained, can be contradicted, what shall prevent inquiry, whether it was truly explained? Por, if not truly explained, the condition of the feme is surely not better, than if the deed were not explained at all. * * * To me indeed it seems, that the demon of mischief could not suggest a notion better calculated to throw all things in relation to titles into their original chaos than the establishment of the principle here contended for.” He admits, that notwithstanding the conclusiveness of the certificate at law, the feme may be relieved in equity, when it has been obtained by the fraud of the party claiming under the deed. In that case there was no proof of fraud. At most it was the omission to carry out one of the requirements of the statute. It is a very different case, in which the married woman was not before the justice at all, or being there had positively refused to acknowledge the deed or make the declaration, that she had willingly executed and did not wish to retract it, and the justice wilfully or corruptly in the one case or the other certifies to falsehoods throughout. In Rollins v. Menager, 22 W. Va. this Court followed Harkins v. Forsyth, and decided, that in a case like that, wh ere there was no proof of fraud, the feme covert will not be permitted by parol evidence to contradict the facts set — 10 — out in the certificate of her private examination, acknowledgment and declaration, so as to avoid the effect of the deed of trust, unless she first establish by evidence satisfactorily, that with the concurrence of those claimiiig under the deed of trust the married woman has been defrauded or imposed upon by the pretended privy examination, acknowledgment and declaration. The authorities hold, that the certificate by a justice or notary of the privy examination, acknowledgment and declaration of a married worn an as to the execution of a deed by her is in its nature a judicial act and in the absence of fraud or duress is conclusive of the facts certified; that a purchaser bona ñde and without participation in or notice of the fraud is protected by it; but as to all other persons pa-rol evidence is admissible to show fraud or duress connected with the acknowledgment. White v. Green, 107 Mass. 325; Moore v. Fuller, 6 Or. 272; Singer M'f'g Co. v. Rook, 84 Pa. St. 442 (24 Am. Rep. 204); Johnston v. Wallace, 53 Miss. 331 (24 Am. Rep. 699); Stone v. Montgomery, 35 Miss. 83; Rocnovek v. Marak, 54 Tex. 201 (38 Am. Rep. 623); Williams v. Powers, 48 Tex. 141; Louden v. Blythe, 37 Pa. St. 22; Michener v. Cavender, 2 Wright 334; Jameson v. Jameson, 3 Whart. 457; Schrader v. Decker, 9 Barr 14; Baldwin v. Snowden, 11 Ohio St. 203; Hecter v. Glassgow, 79 Pa. St. 79; Ennor v. Thompson, 46 Ill. 214; Luckman v. Harding, 65 Ill. 505; Kerr v. Russell, 69 Ill. 666; Rollins v Menager, 22 W. Va. 461; Henderson v. Smith, 26 W. Va. 829). Schrader v. Dicker, 9 Barr, supra, was a very hard case, and yet it was held, that even under those circumstances, a bona ñde purchaser without notice could not be affected by the fraud ; but in that case the wife was relieved, because the grantee participated in the fraud. The circumstances, as stated by the judge, were as follows: The deed was given to a tavern-keeper partly in payment of a profligate husband’s debt contracted in a course of drunkenness and debauchery and was thus procured: Means, the grantee, attended by his wife and a man called Doninger, who had no proper concern with the business, and an inexperienced justice picked up by the way repaired to the house of tjie hus — 11 — band, while the wife was in the throes of child-birth. Means, his wife and Doninger entered the sick woman’s chamber and met in the first instance with a repulse, they had reason to expect. It was not until she had been badgered for two hours and worn out by the importunity of her husband as well as deceived with false assurances by the rest of the party of her husband’s right and ability to redeem the land, that they worked her to their will. The justice was then called in, and having first asked her in the presence of her husband, whether the instrument, she had executed, was her deed, he signed the certificate, which had been brought along for the occasion. Chief Justice Gibson then says : “If these circumstances are proved, particularly the crisis selected for the transaction, the instruments employed to bend her to their purpose and the deception eifected by the false assurances, they will show the existence of a conspiracy to strip her of her property by force and fraud, and the jury will have no more to do than to find for the plaintiff all the land, which had not been paid for to Means or his voluntary grantee, and all that may have been paid for with knowledge of the fraud. To do less would disgrace the administration •of justice.” The judgment was reversed and a new trial granted. In Central Bank v. Copeland and wife, 18 Md. 305, it appeared, that a wife was by threats and intimidation induced to sign and acknowledge a mortgage-deed. A bill was filed to foreclose, and the wife in her answer pleaded the threats and intimidation, and proof was taken, which clearly showed it. It did not appear, that the grantee participated in the fraud or had any notice of it, yet the Court held, that the fact, that the mortgagee took no part in the execution of the mortgage by the wife, does not strengthen his right to set it up as valid nor impair hers to avoid it. The acceptance of a mortgage implies adoption by the mortgagee of the husband’s agency in procuring it. This decision wé disapprove, as it seems to us to be against both reason and authority. As between the grantor and grantee, who participated in the fraudulent execution or acknowledgment of the deed, it is in a court of equity open to impeachment; but, where the grantor signed and acknowh — 12 — edged the deed, it can not be impeached as to an innocent purchaser. But how stands the case of a married woman, whose acknowledgment of a deed appears regular on its-face, yet she never appeared before the justice, who wrote-the acknowledgment. In Michener v. Cavender, 2 Wright 38, the Court decided, that, where in a mortgage of a married woman’s separate estate the alderman falsely or by mistake certified to the separate examination and acknowledgment of the wife, who-neither signed the mortgage nor appeared before him, the mortgagee will be affected by the fraud, though he was not present at the acknowledgment nor informed of what passed. He will not be presumed to be a bona dde purchaser; nor is-it necessary to prove notice to him of a fraudulent mistake. Woodward, J., after stating the law, as we have above, said: “Such is the doctrine of the cases in our books, and on the strength of it the learned judge ruled, that the gross blunder, if not fraud, of the alderman in certifying to the separate examination and acknowledgment of a wife, who had not signed the mortgage nor appeared before him, could not-affect Cavender, the mortgagee, because he was not present,, when the mortgage was acknowledged, and was never informed of what passed, and that he was to be presumed to be a bona ñde purchaser. If the doctrine of notice is to be applied in this manner, no married woman’s estate is safe, and the statutes, that have been passed for her protection, are as worthless as waste paper; for whenever her husband goes into a conspiracy to strip her of her lands, the tran s-action is not likely to be attended with any circumstances of notice, that are susceptible of proof. Here for instance is a mortgage upon Mrs. Michener’s separate estate made to a conveyancer and duly witnessed and acknowledged, which for aught that appears of record, she never saw nor heard of, until she was- sued upon it by this seire facias. Her name appears to the printed copy on our paper-books, but- when or by whom it was subscribed to the original instrument, does not appear. It certainly was not there, when the aider-man witnessed and acknowledged the mortgage. The statute requires the signature to precede the acknowledgment, and — 13 — without signature and acknowledgment according to the statute it is not and can not be a mortgage on her estate. To call the mortgagee a Iona fide purchaser, and to put her to proof, that he knew, she had been cheated, would be like making her right to reclaim stolen goods dependent on the receiver’s knowledge of the felony. Suppose the mortgage was a forgery out and out, and Cavender chose to invest his money in a purchase of it, must it be enforced, because he did not know, he was buying a forged instrument? An instrument known to be forged would not be purchased and would therefore be worthless to the forger. Counterfeit notes would never be issued, if a herald went before to proclaim their spuriousness. But, because they are taken without notice, do they become genuine ? Is every bank and individual to redeem whatever obligations, Iona fide holders may obtain against them, without regard to the question, whether the obligations have ever issued or not ? To carry the law of notice to such an extent would subvert all law and justice. * * * * The only excuse the alderman gives for his reckless conduct is, that ‘George told me it was a temporary matter, and that he would make it all right, if Mr. Cavender objected.’ To George and the alderman Mr. Cavender must look to. make it all right; but he must not touch Mrs. Michener’s separate estate by means of such a mortgage.” In Allen v. Lenoir, 53 Miss. 321, the bill was filed to foreclose a mortgage purporting to have been executed by both husband and wife and purporting to have been acknowledged by the wife. In her answer she stated, that “the deed was signed by her but was never acknowledged, because, when she went to Beulah for the purpose of acknowledging said mortgage, she was informed, that the clerk of the probate court, John B. Hunt, was intoxicated and declined to see her, and she left the mortgage in the store of Martin & Christmas adjoining the office of said clerk intending to return and acknowledge it; but she never did see said clerk, John B. Hunt, in relation thereto and never did acknowledge said mortgage before said Hunt or any other officer.” Thomas B. Lenoir in his deposition stated that he went to Beulah to get the mortgage, that it was then in the hands of — 14 — the clerk, and there was no certificate of acknowledgment to it. The clerk, John B. Hunt, stated to deponent, that “he had been told, Mrs. Lenoir had'been there, but he was not fit to be seen by a lady and did not see her and had not seen her since; but, as she had previously acknowledged a similar mortgage before him, and he knew her handwriting, he would not give them any further trouble but would certify to it.” Lenoir also stated in his deposition, that the certificate of acknowledgment by Mrs. Lenoir to the mortgage was made by the clerk, John B. Hunt, at deponent’s request. There was some other testimony. The Court ordered a sale of the mortgaged property; • and an appeal was taken. Campbell, J., delivering the opinion of the Court, said “We can not escape the conclusion after an earnest effort to avoid it, that the mortgage was never acknowledged by Mrs. Lenoir, and that the certificate, that she had acknowledged it is untrue. A proper acknowledgment is an essential part of the conveyance of her land by a married woman. The bill charges the execution of the mortgage by Mr. and Mrs. Lenoir. In the answer she denies, that she ever acknowledged it. There is nothing but the official certificate of her acknowledgment to contradict her answer, which is supported by a number of circumstances, which fully sustain it.” The decree was reversed. In Johnston v. Wallace, 53 Miss. 331, it was held, that a deed having been signed by a husband and wife, and she having appeared before an officer competent to take her acknowledment and having acknowledged it in some manner and he having certified on the deed, that she had acknowledged on a private examination separate and apart from her husband, that she had executed the deed freely and voluntarily without any fear, threats or compulsion on the part of her husband, the truth of the certificate as to its statements can not be questioned as against a bona tide purchaser. It. was also decided that the case did not present the question, whether a certificate of acknowledgment, can be shown to be a fraud and forgery, which was decided in the affirmative in Allen v. Lenoir, to which view the Court adheres. In this case Campbell, J., who also delivered the opinion in Allen v. Lenoir, draws a distinction between the case, in — 15 — which the married woman was not before the justice for the purpose of acknowledging a deed, and the case where she does appear and acknowledge it in some manner, and the justice certifies to parts of such acknowledgment, that are false. In the latter case the Court holds, that as against a bona fide purchaser the certificate can not be impeached, and in the other it can be impeached. The Court says as to the former case But, where the person never appeared before an officer to acknowledge the deed, but he falsely certifies, that she did, his act is wholly without authority of law and void m toto. All must be subject to the risk of an occasional forgery by officers authorized to take acknowledgments. Although liable to be deceived and imposed on by such an act no one can claim, that a married woman’s estate should be devested by forgery. And when she in fact did not appear before the officer to acknowledge, although he may certify, that she did, she may show, that she did not; for his act is wholly without authority, and she but rights herself and wrongs no one in proving the truth of the case; for no one can claim by virtue of a forgery. The law requires no other evidence of the acknowledgment of a deed by a married woman but the prescribed official certificate. Indeed no other evidence of acknowledgment, besides the official certificate can be received. A cloud of witnesses attesting the fact of the fullest acknowledgment will not supply the want of the official certificate of acknowledgment or an omission in it when made.” In all the cases the struggle has been to protect, the married woman in her right of property on the one hand and the innocent purchaser, who has parted with his money for her land, on the other, and to uphold the rights of land-owners, who must necessarily rely on the correctness of the records of land-titles for their protection. . Therefore it has been uniformly held, that as regards an innocent purchaser of the land of a married woman the certificate of her acknowledgment of the deed by .an authorized officer is conclusive of the facts, which are therein stated. This principle, it is contended, applies to every case, where the acknowledgment has been certified by an officer authorized to take it, whether the married woman ever acknowledged it or not, — 16 — But I have found no case, where it has been held, that, if it clearly appeared by proper parol evidence, that the married woman never in fact appeared before the officer to acknowledge the deed, and the certificate contains all the requirements of the law, just as though she had in fact appeared before the officer, the deed would operate to devest her estate even in favor of an innocent purchaser; but we have cited two cases, where it has been held, that under such circumstances her estate could not be devested. It does seem to me, that strong as may be the claims of innocent purchasers, who have been thus imposed upon, by the gross fraud and collusion of a wicked husband and a justice, who has no regard for the rights of property, yet the claim of an innocent wife, who without the least fault of hers has thus been the victim of such an attempted spoliation of her land makes a much stronger appeal to the Court. Our constitution requires the legislature to “ pass such laws, as may be necessary to protect the property of married women from the debts, liabilities and control of their husbands,” — (sec. 49, Art. VI.) The legislature has done so and thrown around the married woman many safeguards, one of which is the law, that no deed shall convey her property, unless she has been by a proper officer examined privily and apart from her husband in relation thereto, and, after it has been fully explained to her, she then acknowledges it and declares, that she willingly executed it and does not wish to retract it. It would give her but little protection, if a certificate of such privy examination, acknowledgment and declaration could take from her her estate, when in fact she did not know, that any such certificate was contemplated and did not appear before such officer at all. For reasons of public policy and to protect innocent purchasers it has been uniformly held, that, when a married woman appears before a justice for the purpose of acknowledging a deed and does in some manner attempt to do, what the law requires to be done, the certificate is conclusive of the facts therein stated as regards innocent purchasers. This is a uecessary rule of law and not a harsh one to her; because, if the justice has not asked her all the questions required or has omitted anything which the statutes requires, — 17 — as fully explaining the deed to her, she may notify the purchaser of that fact, before the deed is delivered to him, and thus prevent it from operating to pass her title to the property. But, where she has not appeared before the officer, she has no opportunity to save her property, any more than the man has, whose name is forged to a negotiable note. In the case of the note no one would hesitate to say, that it would be void in the hands of an innocent holder for value. Why then should it be said, that the married woman should be held for the act of the justice, which was as much without authority or warrant in law as the forgery of the man’s name to the note ? If this can be done, there is no protection to a married woman’s property, there is no protection to any man’s real estate; for it is just as easy for a justice, who has no fear of consequences, to forge the signature of a man to a deed conveying his farm to another and then make a false certificate of his acknowledgment thereof, as to make the false certificate of the acknowledgment of a married woman. The purchaser could then take it from the one, who had procured the justice to do the act, and be entirely innocent of the forgery and fraud. No one would for a moment suppose, that under such circumstances the man thus imposed upon should lose his farm. The innocent purchaser in such a case would have every reason to believe, that the deed had been signed by the grantor, or that it had been signed for him by another, because he had according to the certificate of the justice acknowledged it as his signature, which would be conclusive against him, if he could not impeach it in the hands of an innocent purchaser. A married woman’s signature to a deed amounts to nothing in any one’s hands as to her, until she has acknowledged the deed before a proper officer after privy examination, and he has certified, that all the requirements of the statute have been complied with, and the deed has been recorded. She ought to have the same right to impeach the certificate of her appearance before the officer making it, when in fact she did not appear before him, that a man has to prove a deed professing to be signed by him to ]be a forgery. The rights of property are too sacred to al — 18 — low them to be swept away without the knowledge of the owner, when he has made no contract of sale with the pretended purchaser. No consideration of public policy can justify the robbing of a married woman of her separate estate. If therefore it legally appears in this record, that the deed of the 15th of December, 1868, which apjjears to have been properly acknowledged by Sarah Jane Knisely by the certificate of Michael Simon the justice, was no.t acknowledged by Mrs. Knisely ; that is, if it appears by proper proof, that that certificate is totally false, that Mrs. Knisely never appeared before said justice to acknowledge said deed, the deed as to her is void even in the hands of an innocent purchaser for value. In a case of this character the proof to sustain the impeachment of the certificate should be of the clearest, strongest and most convincing character. (Hourtienne v. Schoorer, 24 Mich. 274; Kerr v. Russell, 69 Ill. 666). The proof should be almost, if not quite, as strong as that required to correct a mistake in a deed; thatis, it should not be loose, equivocal or open to reasonable doubt or opposing presumptions. (Jarrell v. Jarrell, 27 W. Va. 743). The reason for this is, that the writing itself is regarded as evidence so strong, that only other unequivocal evidence irresistibly conclusive is sufficient to overthrow it. It is not necessary that there should be no opposing or contradictory evidence; but the evidence, that the certificate is totally false, must be so strong as to remove every reasonable doubt. If the evidence in this cause is competent, it comes up to the full requirement of the rule, as we have stated it. There can be no 'doubt of the fact, if the evidence is competent, that Mrs. Knisely never appeared before justice Simon at all to acknowledge the deed of December 15, 1868, as certified by said justice in his certificate attached to the deed. Mrs. Knisely herself testifies, that she did not appear before him; and both Knisely and the justice depose, that the justice made the certificate in the absence of Mrs. Knisely, while he was sitting on his horse in the public road. The justice in his deposition, which was excepted to in the Court below for incompetency, says, that Mrs. Knisely did acknowledge before him a deed of trust to secure the $1,650.00 to Pickens, — 19 — which deed was executed to W. W. Daniels, trustee. He says, she never acknowledged but one deed of that kind. Being asked, whether, after he had taken her acknowledgment as stated, L. M. Knisley did not bring another deed of trust, bearing date as before stated to W. W. Daniels, trustee, to secure the plaintiff the said sum of $1,650.00, and, if so, what he did with said deed of trust, he answered : “Like a deed of trust was acknowledged this' morning, and the evening of the day after L. M. Knisely met me on the road and says to me : — ‘Squire, Pickens objects to the deed of trust on account of your certificate,’ and I asked him what was the matter with that: — ‘Well,’ says he, ‘you put both certificates of me and my. wife in one’ — and then he said: — ‘I have drawn up new certificates for you by an old one I had, and the deed of trust is all right with the exception of your certificate.’ Then I took the deed of trust and looked at it, and l saw his name and William Daniels’ name, which I thought to be the same one. The same amount at least was in it and her name. I saw the certificates were changed, and then I signed them. I had been in the practice of not drawing up the certificates to' the acknowledgment of a deed for perhaps a month or more after the acknowledgment. ■ I suppose, I did not have this particular deed of trust, when Mr. and Mrs. Knisely acknowledged the deed of trust, but it was one of the same date and the same amount. L. M. Knisely to the best of my recollection never acknowledged the deed, as .certified to.” But it is here insisted, that Justice Simon’s testimony was incompetent to impeach his certificate. In Harkins v. Forsyth, 11 Leigh, it was not only held, that the justice’s testimony was incompetent, but also that all testimony was incompetent to impeach the certificate in that case, because there was no fraud or duress claimed.- In a case like that, we have seen, the authorities generally hold, that evidence can not be heard to impeach the truth of the certificate. In Jourdan v. Jourdan, 9 Serg. & R. 268, it was held, that the deed of a married woman was void, where the certificate of her examination did not show, that she was examined separate and apart from her husband, and that the — 20 — parol evidence of the justice was inadmissible to show, that he in fact did examine her separate and apart from her husband. In Stone v. Montgomery, 35 Miss. 83, the deposition of the-justice was- taken to show, that the statements made in his-certificate were untrue, and the Court said: “We are of opinion, that the officer could not be examined for such a purpose. His. official acts are done and certified under oath, and it would be mischievous in the extreme to permit such a person to appear as- a witness- and falsify his own solemn act. Such a course would expose weak or dishonest officers to the most dangerous temptations, and render the tenure of property unsafe and precarious, by subjecting the evidences, of titles, under which it was held, to the frail and uncertain memory or to the corruption of officers, who have in due form certified to- the regularity of their acts.” In that case the only irregularity claimed was, that the examination of the wife was- “in the presence of her husband.” In Bank v. Copeland, 18 Md. 305, it was held, that the magistrate, who took the acknowledgment of a married woman to a deed, is. not from considerations of public policy, if from no other, a competent witness to contradict or impeach his certificate of acknowledgment. In that case it clearly appeared, that the wife was. before the justice; but it was insisted that by threats, &c., she was induced to acknowledge the deed. In Allen v. Lenoir, 53 Miss. 321, evidence of the declarations of Hunt, who took the acknowledgment, which declarations showed, that the married woman was not before him, were objected to, and the Supreme Court said : — “The Chancellor did err in not suppressing the evidence of what Hunt, the clerk, whose certificate of acknowledgment appears on the mortgage, told the witness about the certificate. It was-incompetent, both because it was hearsay, and because it impeached the official certificate of Hunt.” In the case of Michener and wife v. Cavender, 2 Wright 334, the only evidence to impeach the certificate was given by the alderman, who took the acknowledgment. He testified that the married woman was not before him to be examined at any time. His testimony was taken under ex — 21 — ception to his competency as a witness to contradict his own official act. Judgment was had against the married woman in the court below, on the ground that the certificate could not be impeached even under these circumstances in the hands of an innocent purchaser. The Supreme Court reversed the case and necessarily considered the testimony of the alderman, although the question of his competency was not alluded to in the opinion. The court quotes from his evidence without saying anything about his competency. In Rollins v. Menager, 22 W. Va. 461, the statement of the case (p. 465) shows, that the justice, who took the acknowledgment, was examined as a witness; but it appears, that his evidence was in favor of and not against his certificates. His evidence is also referred to in the opinion (p. 471). There seems to have been no exception to it, and there could be no legal exception to it, because it did not tend to impeach his certificate. It was formerly held, that attesting witnesses to a will could not contradict the facts set out in their attestation. (Goodlittle v. Clayton, 4 Burr. 2,224). But this Court has held, that the question of the execution of a will is to be determined like any other in view of all the legitimate evidence in the case; and no controlling effect is to be given to the testimony of the subscribing witnesses. Their direct participation in the transaction must of course under-ordinary circumstances give great weight to their testimony, but it is liable to be rebutted by other evidence either direct or circumstantial. But it was further held, that the testimony of a subscribing witness against the validity of a will must be viewed with suspicion. (Webb v. Dye, 18 W. Va. 376). It seems to us, that it is admissible to hear the evidence of a justice, who took the acknowledgment of a married woman, to prove, that she never did in fact appear before him to acknowledge a deed, although he has certified, that she did. It is of course permitting him to testify to his own baseness; but though his evidence must be by court and jury viewed with suspicion, yet, we think, it is competent in such a case and should be received for what it is worth, and, unless supported by other facts and circumstances in the case, it would not be regarded — 22 — as sufficient to impeach his certificate. Especially do we think, that in this State his evidence is competent, since even the parties in interest with certain exceptions are competent to testify in their own behalf. But it is insisted, that the testimony of Knisely and wife was incompetent. The. record does not show the date, at which their depositions were taken, but, the decree dismissing the bill was entered on the 30th day of October, 1883. On the 27th day of March, 1882, the legislature passed an act declaring, that “ in any civil action, suit or proceeding the husband or wife of any party thereto or of any person, in whose behalf any such suit or proceeding is brought, prosecuted, opposed or defended, shall be competent to give .evidence the same as any other witness on behalf of any party to such suit, action or proceeding, except that no husband or wife shall disclose any confidential communication made by one to the other during their marriage.” (Sec. 22, chap. 160, Acts 1882, p. 544). This act went into effect ninety days after its passage, on the 27th of June, 1882, so that it was in full force and vigor, when the decree of October 30, 1883, was heard on the depositions, &c. The language is the husband and wife "shall be competent to give evidence.” Within the meaning of said section the competency of the testimony taken is determined, at the time the Court reads it, and not at the time the depositions are taken. (Zane v. Fink, 28 W. Va. 693). So at the time these depositions were read, both husband and wife were competent to give evidence. Therefore the testimony of Knisely and wife was competent. The evidence all being competent leaves no doubt, that the married woman, Mrs Knisely, never acknowledged said deed, and it is therefore void as to her. The second deed of trust, we have found, is valid; but it is necessarily subject to the life-estate of Stephen Arnold, the grantor of Mrs. Knisely, as appears by the terms of the deed. (Love v. Teter, 24 W. Va. 745). It is claimed, that the land is subject to the curtesy initiate of the husband and father, that if the deeds were void, still the bill ought not to have been dismissed, because Mrs. Knisely signed the notes, and the rents and profits of her real — 23 — estate are subject to their payment. No such relief, as is claimed, could be had in this suit. The bill was not filed for any such purpose, and it could not be amended for such a purpose, as that would make an entirely new case. The debt of a general creditor of a married woman does not constitute a lien or charge upon her separate estate real or personal prior to the institution of the suit by such creditor to subject such estate to the payment thereof. General creditors of a feme covert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction. (Hughes v. Hamilton, 19 W. Va. 366; Piercy v. Beckett, 15 W. Va. 444; Lamb v. Cecil, 28 W. Va. 653). JohnsoN, President: ’ Since writing the preceding opinion, and since the dissenting opinion was written, I have found the following authorities sustaining the position, that where a married woman did not in fact acknowledge a deed conveying her property, and a notary or other officer has certified, that she did, and the certificate is in regular form, she may impeach such certificate, even when the property has been conveyed to an innocent purchaser ignorant, that such certificate is false and fabricated: Moore v. Holt, 37 Ark. 148; Meyer v. Gossett, 38 Ark. 377; Donahue v. Mills, 41 Ark. 421; Williamson v. Carskaden, 36 Ohio St. 664; Ford v. Osborne, Supreme Court Ohio decided March 17, 1887, 24 Reporter Sept. 21, 1887; Russell v. Baptist Theological Union, 73 Ill. 337; Smith v. Allis, 52 Wis. 337; Van Orman v. McGregor, 23 Ia. 300; Herrick v. Musgrove, 67 Ia. 63; Hourtienne v. Schnoor, 83 Mich. 274; Tilghman C. J. in Barnett v. Barnett, 15 Serg. & R. 72; Ins. Co. v. Nelson, 103 U. S. 544. We have examined the evidence and do not think, that the usury charged in the answer is proved. For the error, which we have pointed out, the decree of October 30, 1883, is reversed with costs to the appellant; and this cause is remanded to be further proceeded in according to the principles herein announced.