Erskine v. Davis

Caton, C. J. When sifted down into a tangible shape, there are but two questions, as we apprehend, in this record requiring our consideration, although we shall notice one other, in conclusion. The first arises upon the execution of the deed by Margaret Gittings, who was the owner of one-sixth of one-ninth of the premises, and the other upon the execution of the deed by Henrietta Croxall, who was the owner of one-half of one-ninth of the premises. The objection to the execution of the deed by Margaret, is that her name in the body of the deed is written Margaret A. Gittings, and her signature to the deed is Margaret S. Gittings, which is the real name of the party who owned that interest in the land, and who designed to convey that interest by the deed she thus executed. If this was a mere question of identity of a paper described in a pleading which had misstated the middle name, and which could have but one correct description, it might be fatal as a misdescriptibn of the paper. This is a very different case. The middle name might have been wholly omitted in the body of the deed, or in the signature, and the conveyance still be held good, if the party actually owning the premises and intending to convey them was intended to. be described in the deed, and she actually signed it. In law the middle letter of a name is no part of the name. It may be dropped and resumed, or changed at pleasure, and the only inquiry is one of substance — was the deed in fact executed by the proper party ? It is unnecessary now to say whether this would be so had there been a misdescription of the Christian or surname, as Mary instead of Margaret, or Smith instead of Gittings. The next objection is, that there should have been affirmative proof that Henrietta Oroxall was solé at the time she executed the deed. The deed was executed in November, 1854. In May, 1856, the deposition of Ridgley was taken. He gives an account of all of the descendants and heirs of Harriet Gittings, from whom the grantors in this deed inherited the land. Among others, he states that Deborah Oroxall was a daughter of Harriet Git-tings, and that she died leaving two children, Eleanor A. Jamie-son, wife of W. D. Jamieson, and Henrietta E. Oroxall. Nearly two years after the execution of the deed, this witness, who was a relative of the family and intimately acquainted with them all, speaks of Henrietta by her maiden name, while he speaks of her sister as being married to Mr. Jamieson. Now we can hardly believe that had Henrietta at that time been married to Dr. Gibbs, he would have spoken of her by her maiden name, when he describes her sister as a married woman, and by her husband’s name. Against this pregnant inference arising from the testimony of this witness, and against the legal presumption that she continued single till she is proved to have been married, we are asked to presume that she was a married woman when she executed the deed in 1854, because Mr. Peters, whose deposition was taken in 1860, spoke of her as being at that time the wife of Dr. Gibbs. The presumption of coverture is prospective from the time when coverture is shown to exist, and not retrospective. If we shall presume, for the purpose of avoiding the deed executed by her in her maiden name, that she was married six years before we have any evidence that she was married at all, we might, with the same propriety, presume that she had been married sixteen years. Such is not the law. But much more than this, we are asked.to presume that Harriet Gittings must have been a married woman at the time she executed the deed in her maiden name, because we may reasonably infer from the testimony that she had for a long time been of a marriageable age, and in a great majority of cases we know that women do get married. Perhaps it may be unfortunate that it is so, but as we understand it, the law cannot make maiden ladies femmes covert by mere presumption, and against their consent. We must have some tangible evidence that they have actually been married before they can claim the benefits or be subjected to the burthens of that relation, and especially before strangers shall take any advantage on the assumption that they are married. We think the plaintiff showed title to seventeen-eighteenths of the land, and that the court erred in giving him only eight-ninths. The judgment is reversed, and the cause remanded. Judgment reversed.