Merrill v. Nelson

By the Court. Berry, J. On September 28th, 1857, Jennetta Orees, being the wife of J. W. Orees and owner of certain lands, executed an instrument, claimed to be a mortgage thereof, running to plaintiff. The instrument is in terms made “ by and between Jennetta Orees * * * party of the first part, * * and John J. Merrill,” her husband not being referred to by name, or otherwise, in the deed, except by his signature and seal after the in testimonium clause. The defendant argues that the mortgage is void because it does-not comply with sec. 2, ch. 46, Rev. St., (1851,) which provides that “ a husband and wife may by their joint deed convey the real estate of the wife, in like manner as she might do by her separate deed if she was unmarried.” We are of the opinion that this is not the deed of J. W; Crees, because it does not contain any apt words of conveyance on his part, or any words expressive of an intention on his part to be or to be bound as a grantor in the deed. Cathin vs. Ware, 9, Mass. 320; Melvin vs. Proprietors, &c., 16 Pick. 137; Bence vs. Wood, — 374 — 1 Met. 542; Greenough et al. vs. Turner, 11 Gray, 334; Wales vs. Coffin, 13 Allen, 216 ; McFarland vs. Febiger’s Heirs, 7 Ohio, 194; Ag. Bank of Miss. vs. Rice, 4 Howard, U. S. 225. But we think it is sufficiently executed under the provis ions of sec. 105, ch. 71, Rev. St. This section enacts, in effect, that the real estate of a feone coveo-t “ shall be and continue the real * * estate of such female after marriage, to the same extent as before marriage * * * Provided, that nothing in this section contained shall be construed to authorize any married woman to give, grant or sell any such real *. * property during coverture, without the consent of her husband.” The effect of these statutory provisions is to give a married woman the same authority to grant and convey her real property as if she Were sole, subject only to the condition that the grant or conveyance must be made with the conseoit of her husband. Kingsley vs. Gilman, 15 Minn. 59. This consent is' not required to be expressed by the husband by. joining as grantor Avith her in the instrument of conveyance. Without undertaking at this time to lay down any general rule as to the proper manner of signifying such consent, we have no doubt that it may be properly and effectually signified by the signing and sealing of the wife’s deed by the husband, as Avas done in this instance. We are quite unable to conceive what possible purpose could be ascribed to such signature and seal, unless it be a purpose to consent, at least,to the wife’s deed. So far, then, as the validity of the alleged mortgage depended on the action of J. W. Crees, there is no objection to it. Ingoldsby vs. Juan, 12 Cal. 564; Hills vs. Bearse, 9 Allen, 403; Wales vs. Coffin, supra. The objection to the certificate of acknowledgment because the official seal of the acknowledging officer — the register of deeds — was not attached, appears to be unfounded in fact; besides, no such objection was interposed below. — 375 — The certificate of acknowledgment is in these words: “ Territory of Minnesota, Fillmore county, ss. Be it known that on this 28th day of September, A. D. 1857, before the undersigned came Jennetta Crees to me personally known to be the identical person whose name is subscribed to the foregoing deed as grantor, and acknowledged the instrument to be her voluntary act and deed, and the said J. W. Crees, in absence of his wife, acknowledged to me that he subscribed the said deed voluntarily without fear or compulsion.” Signed, &c. It is argued that to be effectual the wife’s acknowledgment should be taken “ separately apart from her husband,” and that she must acknowledge that she executed the deed “freely and without any fear, or compulsion from any one,” and that it is necessary that the certificate should specially show these facts. Sec. 12, ch. 46, Rev. St. is referred to, which is as follows: “When any married woman residing in this territory 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.” The deed in this case, as we have already determined, is not the joint deed of the husband and wife, and therefore the section cited has no application in this instance. The statute appears to have provided two ways in which the separate real property of a feme covert may he conveyed; one by the joint deed, of herself and husband, the other by her deed made with the consent of, her husband. Similar provisions of law are found in Massachusetts. Hills vs. Bearse, supra. In the former case the joint deed was to be acknowledged as prescribed in section 12 above quoted. To the latter case, however, that section does not apply, and therefore an acknowledgment of the wife’s deed — 376 — executed with her husband’s consent might properly be taken as if she were a feme sole, and need not be taken “ separately apart from her husband,” and it was sufficient, as in ordinary cases, that she acknowledge the same to be her voluntary act and deed. Our conclusion, then, upon this branch of the case is that the mortgage was valid, both as respects its execution and acknowledgment. An interest in the mortgage appears to have been attempted to be assigned by plaintiff to one Findley, and by Findley re-assigned to plaintiff. The objections made to the re-assignment may be disposed of by the single remark that it is as good as the assignment. If the re-assignment passed nothing, neither did the assignment, and if the assignment passed anything, the re-assignment restored it, so that in either case the mortgage was plaintiff’s property. This is an action in the nature of ejectment, plaintiff making title through a statutory foreclosure of the mortgage aforesaid. The notice of 'sale states that the mortgaged premises will be sold, &c., &c., “ in front of the office of the register of deeds in the county of. Fillmore,” such county being before referred to in the notice as being in the state of Minnesota. It is claimed that this designation of the place of sale is too indefinite and uncertain to satisfy the statute which required the notice to specify the place of sale. The statute in force at that time (1859) sec. 132, ch. 7, Pub. Slat., required the register of deeds to keep his office at the seat of justice, where one was established, as in Fillmore county, and as the words “in front” must by any sensible construction be regarded as equivalent to “immediately in front,” or “ in front and near to,” we are of opinion that the notice will answer, especially when it is considered that, so far — 377 — as appears, nobody was misled and no objection taken to the notice until more than ten years .after the sale. The'objection that the certificate of sale was improperly admitted on the trial as evidence of sale, because it does not expressly appear in the body of it that the sale was made by W. C. Pickett as sheriff, although the certificate is signed “ W. C. Pickett (seal) sheriff of Fillmore county,” is too technical, since Pickett could make the sale only as sheriff., Sec. 6, ch. 75, Pub. St. ■ The objection made to the admission of the certificate and the endorsement of filing thereon, because the latter was signed “ G-. W. Willis, clerk,” was, we think, very properly overruled. Before these instruments were received in evidence, testimony was put in showing that Willis was at the time of such filing both clerk of the district court, and register of deeds, and that he used the, same room for his office, both as clerk and register; that the certificate was handed by the sheriff to the plaintiff, and by him handed to Willis, or one of his clerks, and that it was found in the package of certificates of mortgage sales in the register’s office, where it had been several times seen since originally filed. Manifestly under these circusmtances the designation “ clerk ” was an error purely clerical, not in any way affecting the fact that the certificate was filed in the office of the register of deeds as required by sec. 10, ch. 75, Pub. St. ' The objection made to the reception of the printer’s and sheriff’s affidavit, because they were not filed within Ehe time specified in sections 61 and 62, ch. 84, Pub. Stat., is disposed of by the decision of this court in Goenen vs. Schroeder et al., (ante p. 66), by which it is held that the sections cited have no application to the affidavits provided for in ch. 75, Pub. St. The only further objection which we deem it necessary to consider, is that made to the certificate, and, as we understand — 378 — it, to the' sale, because the premises sold consisted of two tracts of land touching only at a common corner. Defendant’s contention is that the two “ tracts should have been sold separately; that the certificate shows that they were not so ' sold, and the sale was therefore void.” Plaintiff’s answer is that the provisions of statute (sec. 8, ch. 75, Pub. St.) on this subject are directory only, and that a sale in gross of tracts which are distinct is voidable at the instance of a party aggrieved, but not void, and he cites Cunningham vs. Cassidy, 17 N. Y. 276, in which this view is taken and applied to the case of a judicial sale. Whether there is any such distinction between a judicial sale and a sale in pais, like that in the case at -bar, as would make the doctrine of Cunningham vs. Cassidy inapplicable to the latter, as some authorities appear to indicate, (See Lee vs. Mason, 10 Mich. 404) we will not now determine, as we think defendant’s objection may be very satisfactorily disposed of upon another ground. The provision of the statute (Sec. 8, ch. 75, Pub. Stat.) is as follows, viz.: “ If the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately, and no more farms, tracts, or lots shall be sold than shall be necessary to satisfy the amount due,” &c., &c. The statute speaks of three varieties of real property, to-wit: distinct farms; distinct tracts and distinct lots. Now if by “ distinct farms ” was meant no more than was meant by “ distinct tracts,” then the former expression is superfluous^ adding ‘nothing whatever to the statute. This absurdity in legislation is not to be presumed. Our construction of the statute is, that it. recognizes the fact that there may be distinct tracts of land which constitute in their relation to each other and in the way in which they are used but one farm, and that when the sale to be made is of land used for farming purposes, the inquiry is whether it constitutes distinct farms, or — 379 — a 'single farm. If, though made up of distinct tracts, (as in the case at bar, according to Kresin vs. Mau, 15 Minn. 116) it constitutes but one farm, it may properly (so far as the statute is concerned) be sold in gross, and instances are common in which the best interest of all parties would require such sale in gross. Anderson vs. Austin, 34 Barbour, 321. Plaintiff is correct in saying that it does not expressly appear from the certificate but that the two distinct tracts were sold separately. But admit that they were not, and as it does not appear, and no evidence is offered to show that though the tracts were distinct they were not one farm, (so that they might properly be sold in gross,) and as the presumption here, as elsewhere, is that the sheriff performed his duty, there is no ground for supposing or presuming that the sale was not made in strict accordance with the • requirements of the statute. The certificate in this case states that Pickett (the sheriff) sold to plaintiff “ for the sum of $38*5.00 * * * the following land, to-wit: the southeast quarter of the southeast quarter, of section eleven, (11) and the northwest quarter of the southwest quarter of section twelve, (12) town one hundred and two, (102) of range eleven, (11) west.” Upon the whole then, we are. unable to see how the court erred in denying defendant’s motion for a nonsuit, or in instructing the jury to find for plaintiff. The order refusing a new trial is accordingly affirmed.