West v. Best

Scott, Judge, delivered the opinion of the court. This is an action founded on two promissory notes. The payment of the notes was made dependent on the compliance with a condition contained in a collateral agreement. It is obvious that if the performance of the condition was waived by the party in whose behalf it was to have been done, he could not afterwards resist their payment. If the plaintiff had placed his right to a recovery on the ground of a waiver of the performance of the condition, and there had been a verdict in his favor, the judgment would not have been disturbed. But there were instructions given for him which renders a reversal of the judgment necessary. The third instruction given for the plaintiff was, we conceive, erroneous. It put the question of law to the jury. Whether the plaintiff had a good title to the tract of land, the price of which formed the consideration of the notes sued on, was a matter of law to be determined by the court. [555] The instruction was moreover wrong in this, that it put as a hypothesis to the jury a matter about which there was no dispute ; as it is clear that, if the case was made to turn on the validity of the plaintiff’s title as presented by the record, he must have inevitably failed. The fourth instruction given for the plaintiff is also exceptionable. A married woman can not convey her real estate by acknowledging her deed before a justice of the peace. The thirty-fifth section of the act concerning conveyances prescribes that a married woman may convey her real estate by acknowledging the conveyance and having it certified by some court having a seal, or some judge, justice or clerk thereof. (R. C. 1855, p.-.) These words, in our opinion, determine the court or officer who is to certify a a deed conveying a manned woman’s land. A justice of the peace has never had, under our statute laws, authority to take the acknowledgment of a conveyance passing the title of a married woman to her land. We are not of the opinion that the general words “ or other officer,” contained in the thirty-seventh section of the same act, were designed to change the general provision which fixed the tribunal or officer by whom the deeds of married women conveying their lands were to be certified. The thirty-fifth section determined those who were to perform such acts, and we will not presume that, by any general terms, that was unfixed which had been made firm and stable. We do not see the propriety in giving the fifth instruction for the plaintiff. His having a color of title did not affect the merits of the controversy. If the defects of his title were not waived by the defendant, then the defendant was entitled to a good title. The instruction was of a tendency to mislead the jury. We do not see the point of the objection to the deed of D. W. Davit, guardian, to the plaintiff. We see no impropriety in refusing the defendant’s second, fourth, fifth, sixth and seventh instructions. The certificate of Judge Hall, as to the state of the title [556] of tbe plaintiff, was properly admitted as evidence, it being-qualified with the direction that it was no evidence of title in him. It served to strengthen the evidence of the witness, who testified to the fact of a waiver of all objections to the title and furnished a motive to the defendant in making it. Reversed and remanded. Judge Napton concurs. Judge Richardson concurs in reversing.