Ludlow v. O'Neil

Welch, C. J. We agree with the court below, both in holding that the acknowledgment of the wife was in due- and legal form, and also in holding that this form of acknowledgment does not cast such a cloud upon the title, or render its legality so doubtful as to justify the defendant in refusing to execute the contract. [183] The statute in force at the time of executing the deed was that of February 22,1831 (S. & C. 458). It nowhere requires that the acknowledgment of a deed by husband and wife shall be made in the presence of each other, or be made at the same time or place. The first section requires all grantors, other than married women, to acknowledge the “ signing and sealing ” of the deed. The second section, •as we understand it, simply requires that the wife, “in addition thereto” — that is in addition to what is required of other grantors — shall “ declare,” on separate examination, and the contents of the deed being made known to her, that she voluntarily signed, sealed, and acknowledged it, and that she is still content therewith. It no more requires a simultaneous acknowledgment by the husband and wife than by any other two or more grantors. The provision requiring her separate examination is express and explicit. Had it been the legislative intent that the husband should be present at the time of her acknowledgment, it is but reasonable to suppose that there would have been a provision equally express and explicit to that effect. Nothing but a far-fetched implication can engraft any such meaning upon the statute, and there is no reason or necessity for it to rest upon. The husband can render the wife every needed protection by himself refusing to sign and acknowledge the deed. If she acknowledges it before the husband, it is presented to him with the wife’s signature and acknowledgment, and he has only to refuse to acknowledge. If he acknowledges it -first, he acknowledges it as a deed, to be executed by them both. Of course, the deed is not binding on her till executed by both, and, of course, the certificate must show, both that she acknowledged the “ signing and sealing,” and, also, that she was separately examined, and made the declaration required by the statute. Nor do we think the court erred in overruling the second ground of defense. There was no question of fact in regard to plaintiff’s title. It was a mere question of law — a question as to the construction of a statute. It will never do to say that a doubt in such a ease, however honestly enter [184] tained by the purchaser, will justify him in refusing to execute his contract. As I understand the rule in equity, it is only in cases where the court itself is in doubt as to the title, that a specific execution will be refused on the ground that the title is not marketable. The question is, not whether the defendant is to be excused for refusing the title when tendered, but whether it would be just to compel him to take it at the time of the hearing. If the court holds the title to be good in law at the time of hearing, there is no good reason in equity why the purchaser should not be compelled to take it, no matter how honestly and conscientiously he may have believed it defective at the time it was tendered and refused. Motion overruled.