Dodge v. Hollinshead

By the Court. — Atwatee, J. The counsel for the Plaintiff in Error claims that the certificate of the acknowledg — 46 — ment to a deed, affixed thereto by an officer empowered to take acknowledgments, and regular upon its face, is conclusive evidence of the matters contained therein, and cannot be aided or disproved by parol testimony. Such a rule may have been adopted in some of the States, but certainly not in others, as see 4 John., 161; 12 John., 468; 2 Wen., 308; 1 Hill, 540. But in this State we think the Statute conclusive on the subject. Seo. 26, p. 400, Comp. Stat., provides that “ all conveyances and other instruments authorized by law to be recorded, and which shall be acknowledged or proved, as provided in this chapter, * may be read in evidence in any court within this Territory, without further proof thereof; Tout the effect of such evidence may be rebutted by other competent testimony.” In order to introduce the deed, &c., in evidence, therefore, it must have been acknowledged, when it becomes prima facie evidence of the matters to which it relates, but the Legislature has provided that such evidence shall not be conclusive. It was strenuously urged upon the argument, that to permit the certificate of the officer taking the acknowledgment to be contradicted by parol proof, would be productive of the most pernicious results, and greatly tend to unsettle the title to real estate. The objection is not without force, although strong reasons may be urged in opposition to this view; yet the regulation of this matter is, doubtless, legitimately within the scope of the law-making power, and where the Legislature has prescribed the rule which is to govern, courts are not at liberty to disregard it. As a married woman, at common law, is regarded as incapable of making any contract, so she, of course, can only convey her real estate as authorized by the Statute. The old method of alienation or grant by the wife, by fine and recovery, attended by all the formalities and solemnities usual in courts of justice, illustrates the extreme caution exercised with reference to these acts of the wife; or, rather, the protection thrown around her by the courts in the act of disposing of her real estate. For the main object of this somewhat troublesome and expensive proceeding was not for the purpose of restraining the wife in the disposition of her property, but to see that no improper influences were inducing thereto. — 47 — More recent legislation bas dispensed with the unnecessary forms which formerly obtained, but carefully preserved the substance, in providing in nearly, or quite all the States, that some public officer should certify to an examination of the wife apart from the husband, and that she executed the instrument of her own free will, and without fear or compulsion. And upon no branch of the law relating to the rights of persons, have the decisions of the courts been more emphatic and uniform than in holding that the conveyance of real estate by a feme covert must be strictly in accordance with Statute, in order to give it validity. This is an action of ejectment, and the Plaintiff must stand or fall upon his legal title, and cannot invoke the equitable power of the court to enforce the contract which it is claimed the Defendant, Mrs. Holiinshead, has entered into. And, indeed were the form of the action different, no equities are shown as against the Defendant in Error, since she received no consideration for signing the mortgage, nor, in fact, was the mortgage given in consideration of an advance of money, but- to secure an old debt or claim against the husband of Mrs. Holiinshead and another. Our inquiry herein, therefore, must be limited to the question as to whether the Defendant in Error has conveyed the premises in dispute in the manner required by law. Our own statutes have, in several instances, recognized the disability under which the married woman labors in the disposition of her real property, and the undue influence liable to be exercised upon her by her husband in regard thereto ; and have provided that she may dispose of it upon one condition, (the consent of the husband,) and have pointed out the manner in which such conveyance shall be made. The particularity with which the form of an acknowledgment of a conveyance of real estate by a married woman is described, and the fact that in the several instances- where such conveyance is spoken of, whether as made directly, or through the intervention of an attorney, this form of acknowledgment is required, is strong evidence to show that the Legislature considered this as of the essence of the execution of the instrument, and necessary to constitute a valid conveyance. In the execu — 48 — tion of a power by a married woman by grant, such grant shall be acknowledged by her on a private examination, as in case of deed, and shall not be valid unless so acknowledged. (Comp. Stat. p. 395, sec. 44.) The power to convey her real estate is given to the wife by sec. 2, p. 397, Comp. Stat., and the manner In which the instrument shall be executed is prescribed in sec. 12, p. 398, which provides that “ when any married woman residing in this Territory (State) shall join with her husband in a deed of conveyance of real estate, situate within this Territory, the acknowledgment of the wife shall be taken separately, apart from her husband, and she shall acknowledge that she executed such deed freely, and without any fear or compulsion from any one.” And the Act of February 24, 1857, authorizing married women to convey real estate by power of attorney, (Comp. Stat., p. 402,) makes the same provision with reference to acknowledgment by the wife, and legalizing conveyances theretofore made, where the examination of the wife had not been taken separate and apart from her husband. The fact that a special act was deemed necessary to legalize such conveyances, affords strong ground for the presumption, that in the view of the law-making power, at least, such conveyances were invalid.' Nor can there be any stronger reason for requiring such examination in the execution of a power of attorney authorizing another to convey, than where the conveyance is made directly by the wife. The object of the acknowledgment is the same in both cases. That the acknowledgment required by section 12, above quoted, is to be regarded as an essential part of the execution of the instrument, is, I think, further manifest from the language of the next succeeding section. This provides that “ when any married woman, not residing in this Territory, shall join with her husband in any conveyance of real estate, situate within this Territory, the conveyance shall have the same effect as if she were sole, and the acknowledgment or proof of the execution of such conveyance by her, may be the same as if she were sole.” I think the learned Judge who tried the case below, appropriately remarks on this provision, that “ this section is evidently based on the fact, that the law of other localities on this subject is not similar to our — 49 — own, and that it is proper to permit a married woman resident elsewhere to convey her property situated here in the manner in which she might convey it if she were unmarried, ■ But when she resides here, and her person is subject to the laws of this jurisdiction, no such liberty or right is given her. It has been thought best to surround her with safeguards, and to endeavor to counteract and render harmless those peculiar influences to which the marital relation subjects her, by provisions which enable her to have a will, and to exercise it freely.” At the common law two things were deemed essential to enable a feme covert to convey her lands : 1st. The concurrence of her husband ; and, 2dly, That the act be ascertained in the mode prescribed bj' law to be voluntary on her part, and not from fear or compulsion of her husband. (4 Coms., 9.) Now it will be observed that our Statute bas retained these two requisites in conveyances by married women, the only difference being that the Statute has changed the manner in which these requisites are to be ascertained, and there can be no more reason for holding that the private examination of the wife may be dispensed with, than that the husband need not be joined. And yet it is universally held, that the husband must join in the wife’s deed in order to render the same valid. It was held in New York (by a divided Court,) that the husband need not join in a mortgage of the wife’s property, but that was based on their statute, which materially differs from ours, aud even there it was not claimed that the common law rule requiring the concurrence of the husband, could be dispensed with, save as provided by statute. And such may be considered the settled rule in all or nearly all the States, as well as in England, at this time. Chancellor Kent, in treating of this subject, says : “ Upon this view of our American law on the subject, we may conclude the general rule to be that the husband must show his concurrence to the wife’s conveyance by becoming a party to the deed, and that the cases in which her deed, without such concurrence, is valid, are to be considered exceptions to the general rule.” (2 Kent's Com., 154). But, in fact, if either of these requisites might be dispensed — 50 — with, there is stronger reason for regarding the acknowledgment of the wife as much the most important, for by reference to the mode of conveyance by fine, it will be seen that the feme covert might bar herself and her heirs by a fine levied solely by herself, without her husband, if he did not enter and avoid the estate granted ; and the reason given is because she was examined and, had power of the land. (10 Coke, 43.) But I find no instance where a conveyance by the feme covert, under that form has been held good for any purpose without the private examination of the wife. The disability of a married woman to convey her lands by deed, was not supposed to arise from want of reason, but because by her marriage she was placed under the power and protection of her husband ; and it was upon that ground that the separate examination of such woman on a fine was good, because when delivered from her husband, her j udgment was supposed to be free. (3 Atk., 1191). The reason for this separate examination exists just as strongly at the present day as' ever, since the power and control of the husband over the wife is in theory, if not in practice, the same as it has ever been. And as the great object which the common law aimed at was to ascertain whether the wife, in the transfer of her estate or interest in real estate, acted under fear or compulsion of her husband, so has the same been the paramount object in legislative enactments on the subject, and has been recognized in all the judicial determinations which have been made on the question. In Gillett vs. Stanley, 1 Hill, 121, where the question arose as to conveyance by married women, Bronson, J., in delivering the opinion of the Court, says : “ There was no such acknowledgment as the statute required for passing the estate of a feme covertand that “ without an acknowledgment on a private examination, &c., the deed was a mere nullity.” In Meriam vs. Harsen, 2 Barb. Ch. 232, the question came directly before the Court as to the sufficiency of the acknowledgment by a married woman. The officer certified that iC the said Catharine, being examined by me, privately and apart from her husband, acknowledged that she executed the same without any fear, threat, or compulsion of her husband.” The word freely, required by the statute, was omitted, and it was — 51 — strenuously contended that this was sufficient to invalidate tlie conveyance. The Court held the acknowledgment sufficient, and that it was not necessary that the certificate should be in the precise words of the statute, but clearly intimating that unless the requirements of the statute had been substantially complied with, the conveyance would not have been good. The statute of New York, it may be remarked, with reference to the acknowledgment of deeds by married women, is precisely the same as our own, but there is a provision, declaring that instruments not so acknowledged shall be void, “We do not understand, however, that this added anything to the force of the statute prescribing the form of acknowledgment, but was only declaratory of the effect necessarily resulting from a failure to comply with the statute. As this right or power to convey is created by statute solely, so all the forms or restrictions imposed by the statute in order to its enjoyment, must be observed and complied with. The adjudications of the Courts of New York upon this question, are, therefore, entitled to the same weight as their decisions upon any other subject where the statute law of the two States is the same. And the same is true of the decisions in many other States, whose statutes are nearly, or precisely the same as our own in this regard. As these decisions are numerous, and nearly uniform, it is unnecessary to examine them at length, or to do more than cite some of the most prominent. Jackson vs. Cairns, 20, John., 301; Jackson vs. Stevens, 16 John, 109; Jackson vs. Schoonmaker, 4 John., 161; Martin vs. Dwelley, 2 Wen., 9; Meriam vs. Harsen, 2 Barb. Ch. 232 ; 2 Kent’s Com., 167; Elliott vs. Piersol, 1 Peters, 338; People vs. Galloway, 17 Wend., 540; Sanford vs. McLean, 3 Paige, 122; Knowles vs. McCamley, 10 Paige, 346; The Albany Fire Insurance Co. vs. Bay., 4 Coms., 9; Reeves’ Domestic Rel., ch. 8; Sibley vs. Johnson, 1 Manning, 383; Dewey vs. Campow, 4 Mich., 567; Doe vs. Howland, 8 Cow., 277; Clark vs. Graham, 5 Curtis, 173; Constantine vs. Van Winkle, 2 Hill, 240; Evans vs. Commonwealth, 4 Serg. & R., 272; Steele vs. Thompson, 14 Serg. & R., 94; Jourdon vs. Jourdon, 9 Serg. — 52 — & R., 268; Stevens vs, Doe, 6 Black., 475; Mott vs. Smith, 16 Cal., 533; Johns. vs. Reardon, 11 Mary., 465. It is claimed by the Plaintiff in Error, that even if tlie mortgage was insufficient to convey the legal estate of Mrs. Hollinshead in the premises, she ought not now to be permitted to set up such defence, having long slept upon her rights, and suffered the grantee to act upon the strength of his conveyance without asserting her claim to the property. It appears from the testimony that she first became aware of the fact that these lots were mortgaged in December, 1859, while in Pennsylvania, and that she thought it was then of no use to object. Aside from the fact that the Plaintiff claims only a legal interest, and sets up no equities against the Defendant, it does not appear that Mrs. Hollinshead has not asserted rights at the first opportunity afforded her, after her knowledge of the existence of the mortgage, nor that since that period the Plaintiff has suffered any injury from her neglect or failure to adopt active measures to have her rights litigated. It is unnecessary, therefore, to decide whether the Court would permit a feme covert to assert her legal rights, (in a case like the one at bar,) as against an innocent purchaser, but it certainly would bo most safe and prudent for the wife, as soon as informed that her rights are, or are likely to be prejudiced in this manner, to take such measures as may be in her power to prevent the injury to herself, and further loss to others. The evidence in the case is clear and conclusive, that the contents of this mortgage were unknown to Mrs. Hollinshead at the time of signing the same, that she supposed it to be other property than it actually was; that she never received any consideration for signing the mortgage; that her acknowledgment was taken in no manner whatever; and that she never had any intention of incumbering or conveying her homestead. On her part, not the first element existed as the foundation of a valid contract, unless the physical act of affixing her name to the instrument be considered such. It is true her signature does not appear to have been obtained through any fraudulent representations on the part of any one, yet she is, in fact, defrauded of her property by sustaining the mort — 53 — gage, and that species of property which the law most jealously guards. And in regard to the disturbance of titles likely to result from holding such a conveyance void, (which was strenuously urged as a reason for sustaining the mortgage,) we are unwilling to believe that many of the like false certificates have found place irpou the records of the State. But if such be the case, it is an urgent reason why the Legislature should interfere, by imposing penalties of such severity and certainty as to prevent so flagrant an abuse. And as remarked by the Judge who tried the cause, “ whatever hardships may exist in this cause,/ and it is undeniable that one party must suffer, is mainly attributable to the failure of the notary to perform his duty in the manner prescribed by law. And while I do not think that either the notary or the husband of the Defendant acted dishonestly in the matter, or artfully intended to deceive or defraud either the Plaintiff or Defendant, it cannot but be regretted that so grave a business transaction was so carelessly conducted, and so important an official act, was so unfaithfully pei'formed.” The judgment below must be affirmed.