First National Bank v. Paul

Staples, J., delivered the opinion of the court. The amended certificate relied upon by the bank is in no just sense of the word an official act. At the time it was given Mr. Gray had long ceased to be clerk. It is, therefore, the mere declaration of a private person, giving his recollection in 1880 of what occurred before him as clerk in 1869. We must assume, however, that the bank, had the opportunity been given it, would have proved by Mr. Gray every fact stated by him. The question then is, is it competent to show by parol testimony that the privy examination of the wife was regularly taken in the form prescribed by the statute; but that the clerk through accident, inadvertance, or mistake, has omitted some of the material statements required to be set forth in the certificate of privy examination. This question can be best answered by the provisions of our statute on the subject, found in chapter 117, Code 1873. It is there enacted /that the wife must be examined privily and apart from her husband; the writing must be fully explained to her; she must declare it to be her act; that she executed the deed willingly, and does not wish to retract it. The clerk or justice, as the case may be, is then required to certify such privy examination, declaration, or acknowledgment on or annexed to the deed, bind the certificate must be admitted' to record at the time of recording the deed. The statute then proceeds : “When the privy examination, acknowledgment, and declaration of a married woman shall have been taken and certified as aforesaid, and the writing to which such certificate is annexed shall have been delivered to the proper clerk, and admitted to [601] record, as to the husband as well as the wife, such writing shall operate to convey from the wife her right of dower in the real estate embraced therein.” It will thus be seen that the statute prescribes the necessary steps to be taken preparatory to a valid relinquishment of the claim for dower. The certificate must set forth her declaration and acknowledgment as prescribed by the statute; it must be on or annexed to the deed; it must be admitted to record along with the deed, and when all these requirements shall have been complied with, and not till then, the writing operates to convey from the wife her right of dower. The object of this statute is to provide a substitute for the proceeding by fine in England, which was never in force in Virginia, whereby the rights of the feme on the one hand might be carefully guarded, and a sure, indefeasible title and an unquestionable transfer of her right secured on the other. As was said by Judge Tucker, Harkins v. Forsyth, 9 Leigh, 301, “ The validity of the deed is made to depend, not upon the truth of the certificate, but upon its existence, and its delivery to the clerk.” It is the authentic and sole medium of proving that the feme covert has acknowledged the deed with all the solemnities required by the statute. In Hairston v. Randolphs, 12 Leigh, 459, Judge Allen said: “The certificate must show that everything is done which is required by law to be done.” And this upon the principle that where the law authorizes any one to make an inquiry of a judicial nature and to register the proceeding, the written instrument so constructed is the only legitimate medium to prove the result. 3 Stark, on Ev. 1043-4. ■ And although the numerous Virginia decisions on the subject of the wife’s relinquishment of dower do not determine this precise question, no one can read these decisions without perceiving that all the reasoning of the judges is [602] against the admission of parol testimony to prove or disprove the privy examination, or in any manner to affect the certificate of such examination. Fortunately, we are not without express authority in other States upon the point. The researches of the learned counsel for the appelleehave supplied us with a multitude of cases which speak with one voice, and leave no room for doubt on the subject- In Smith v. Ward, 2 Root, 378, reported in 1 American Decisions, 86, notes, the court says: “Again parol evidence will not be received to support a certificate where it is palpably defective by omitting to state some fact the law requires.” In Watson v. Bailey, 1 Binny, 470, it was held that where the certificate omitted to show a voluntary examination, parol declarations of the wife could not be omitted to supply the defect. In Jourdan v. Jourdan, 9 Serg. & Raw. reported in 11 American Decisions, 724, Tilghman, Chief Justice, declares the principle now firmly established is, that the requisities of the act of assembly by which the mode of conveyance by femes covert is prescribed, must appear to have been substantially complied with upon the face of the certificate-made by the magistrate by whom the acknowledgment was taken; and he emphatically declares, that parol evidence of the magistrate himself is inadmissible for the purpose of supplying the defects in the certificate. In Elliott v. Perisal, decided by the supreme court of the United States, and reported in 1 Peters, 333, the original certificate of the-clerk was radically defective. Ten years afterwards the same clerk amended his certificate, which showed a compliance with the statute relating to the privy examination of the wife. The decision of the court turned upon the-construction of the Kentucky statutes, which are taken from ours, and it was held that the privy examination and [603] acknowledgment of a deed by a married woman, so as to pass her estate, cannot be legally proved by parol testimony; that the authority of the clerk to make a record of the certificate is functus officio so soon as the record is made; and that he has no power thereafter to make another or amended certificate. The.court, in this connection, uses the following language : “ What the law requires to be done and appear of record can only be done and made to appear by the record itself, or an exemplification of the record. It is perfectly immaterial whether there be an acknowledgment or privy examination in fact, or not; if there be no record of the privy examination—for by the express provisions of the law it is not the fact of privy examinations merely—but the recording of the fact which makes the deed effectual to pass the estate of a feme covert.” It would seem, therefore, to be very clear that parol testimony is inadmissible to supply the absence of an entire certificate, or defects in an existing certificate. The same rule of exclusion necessarily applies in both cases. The citation of authorities in support of this doctrine may be multiplied almost without number, and in the absence of all authority upon principle, it would seem, to be very clear. We are therefore of opinion there is no error in the decision of the circuit court, and that decision must be affirmed. Judgment affirmed.