Wehrle v. Price

Williams, Judge: To a bill of review filed in the circuit court of Kanawha county by Elsie Price, an infant, by Jessie James her next friend, to review and set aside a compromise decree made on the 29th of May, 1912, in a chancery suit brought by H. L. Wehrle against A. E. Price, trustee, and others, the defendants demurred. The court overruled the demurrers, and, pursuant to the provisions of See. 1, Ch. 135, of the Code, as — 667 — amended by chapter 69, Acts 1915, at the request -of the parties, certified to this court for its determination two questions of law arising on said demurrers: (1) Whether the compromise decree was binding on the infant, Elsie Price; and (2) Whether a certain deed of date April 18, 1902, from James A. Price, trustee, and Mary J. Price to Ethel Price is a valid conveyance. This court was formerly of the opinion that the demurrers had been properly overruled and, at a former term, to-wit,. on the 13th of February, 1917, entered an order sustaining the action of the circuit court. Petition for a rehearing was filed and a rehearing granted. If the contention of demurrants, that the deed mentioned in the second question operated to pass to Ethel Price a fee simple title to the land involved in the litigation, the answer to the question first propounded becomes immaterial, because, in that event, Elsie Price is clearly not prejudiced by the compromise decree of which she complains. In 1865 Archibald Price, and others, conveyed to James A. Price, trustee for Mary J. Price 98 acres of land in Kana-wha county. No powers were expressly conferred upon the trustee by the deed; he was merely a dry trustee holding the legal title for Mary J. Price, and her heirs. On the 18th of April, 1902, Mary J. Price and James A. Price, trustee, executed a deed to “Ethel Price and the heirs of A. 0. and Ethel Price,” for 31 acres, part of the 98 acre tract. The bill avers that James A. Price was husband of as well as trustee for Mary J. Price, but the marital relation does not appear either on the face of the deed or in the certificate of acknowledgment thereto. The deed purports to be made by Mary J. Price and James A. Price, trustee, and is so signed and acknowledged. It is contended by counsel for the infant, Elsie Price, that the deed is inoperative to pass the title of Mary J. Price, because she was a married woman, and it is not made to appear either on the face of the deed or in the certificate of acknowledgment thereto that her husband joined her in the execution thereof. It is averred in the bill and, for the purposes of passing on the demurrers, must be taken as true, that James A. Price, the trustee, was — 668 — also her husband. On the other hand, counsel for demurrees contend that it should appear from the deed itself, or the acknowledgment thereto, that he joined in the execution of it in his capacity as husband. It is well settled that a married woman’s deed has no effect to pass her estate in land unless her husband joins her in the execution thereof. This court has decided that it is not necessary the relationship should appear on the face of the deed itself; that it is sufficient evidence of his consent if he signs the deed with his wife and acknowledges it. Morgan v. Snodgrass, 49 W. Va. 387. Was it necessary for James A. Price to sign the deed in his dual capacity as trustee and also as husband in order to evidence his consent as husband? We do not think so. Being both trustee and husband, it is inconceivable that he should have joined his wife in the former capacity for the purpose of conveying the legal title to land in which his wife had the complete equity, and not thereby have intended to express his consent in the latter capacity, which was indispensable to the validity of the wife’s conveyance. It was not necessary for him to designate the capacity in which he signed in order to give effect to his signature in whatever capacity it ivas necessary for him to act. Does the acknowledgment show a substantial compliance with the statute respecting acknowledgments by husband and wife? The statute nowhere expressly declares that the relationship must be certified. But Sec. 4, Ch. 73, Code, says it must be to the “following effect”, and then in the form given uses words showing the marital relation. But if the relation does in fact exist, is the failure to certify it fatal to a married woman’s deed? If a married woman should fraudulently induce someone to impersonate her husband in order to give effect to a deed in the execution of which her husband was not willing to join, and the officer taking the acknowledgment should certify that they were husband and wife, his certificate would certainly not be conclusive of the fact, although, under our law, the officer’s certification is a quasi judicial act. Even when the privy examination of the wife was necessary, the certificate was conclusive, when not fraudulent, of every material fact required by the statute to — 669 — be certified. If Ms certificate is not conclusive, as to tbe fact of relationsMp, how then can the omission of it from his certificate be material? If the relationsMp, even though certified, can be successfully denied, when it does not exist, and the deed thereby avoided, why then, for like reason and with equal propriety may it not be shown to exist, when the certificate is silent as to the fact? We are cited to no authority, nor have we, after diligent search, found any to support the proposition contended for, which, upon careful reconsideration, we think is hypertechnical. We are of the opinion that so much of the form of acknowledgment by a husband and wife, as provides for certifying the marital relation, is merely directory; and the omission thereof from the certificate does not vitiate the deed of a married woman, in which her husband has actually joined. Although not directly in point the case of Shumate v. Shumate, 78 W. Va. 576, 90 S. E. 824, is apropos. We there held that a writing purporting to be the deed-of a married woman, though not acknowledged in'the form required by the statute for the acknowledgment of a married woman, living separate and apart from her husband, was nevertheless a binding contract on her to convey, it being proven that she was in fact at the time living separate and apart from her husband. If it was proper to show the fact that Mrs. Shumate was living separate and apart from her husband by evidence dehors the writing in order to give it some effect, why is it not equally proper in this instance to prove the relationship between Mary J. Price and James A. Price in order to give her deed the effect which they both evidently intended it should have? The conveyance to ‘ ‘ Ethel Price and the heirs of A. O. and Ethel Price, ” A. O. Price and Ethel Price being husband and wife, vested in Ethel Price an equitable estate in tail, which by the statute, Sec. 9, Ch. 71, was converted into a fee simple. The word heirs in this instance is used in its technical sense. Irvin v. Stover, 67 W. Va. 356; and Tomlinson v. Nickell, 24 W. Va. 148. A. O. Price died leaving Ethel Price a widow. She after-wards married one P. H. Odell. During her widowhood, to-wit, in November, 1906, she leased 26 acres, a part of the — 670 — 31 acres aforesaid, to tbe United Fuel Gas Company for oil and gas purposes. On November 28, 1911, Mary J. Price and James A. Price, her husband and trustee, made a deed confirming the oil and gas lease- made by Ethel Price on the 26 acres of land, and conveying all their right, title and interest in said 26 acres to A. E. Price, trustee for Elsie Price who was the only child and sole heir at law of Ethel Price, then deceased. After the death of Ethel Price’s husband, A. 0. Price, and after she had executed the oil and gas lease above mentioned, she married P. H. Odell, who survived her. Claiming a life estate in the said 26 acres by the curtesy, he conveyed it to H. L. Wehrle, plaintiff in the original suit, by deed 8th April, 1912, whereupon said Wehrle brought suit against Elsie Price and A. E. Price, as her guardian and also as her trustee, and also against the United Fuel G-as Company and the Ohio Fuel Oil Company. A compromise decree was therein entered, securing to Elsie Price the principal sum derived from the oil royalty from said lease, and providing for the paymént to her of a part of the principal sum, not to exceed $200 a year, after she became sixteen years of age, for the purpose of her education. The decree further provided for the lending of the money derived from the sale of royalty oil at 6% interest, and the payment to said Wehrle of a sum annually, equal to 4% on the principal. This decree was entered as. a compromise decree by consent of all parties, A. E. Price, acting as trustee, guardian and guardian ad litem for the infant Elsie Price, consenting for her. The court also expressly approved the compromise. This is the decree which Elsie Price attacks and seeks to have reviewed by her bill of review. Having already determined that the deed of Mary J. Price and James A. Price, her husband and trustee, passed complete title to Ethel Price, it followá that-Elsie Price acquired whatever interest she had in the land by inheritance from her mother, Ethel Odell, and not by the deed made directly to her in the year 1911 by Mary J. Price and James A. Price her husband and trustee. But she took subject to the oil and gas lease which her mother had executed in 1906. This lease, without regard to the time of its — 671 — operation, was valid and binding on the heir. Being fully executed by Ethel Price at a time when she was sui juris, her surviving husband became entitled to his curtesy in the royalties arising therefrom during his life. Koen v. Bartlett, 41 W. Va. 559; and Alderson’s Admr. v. Alderson et al., 46 W. Va. 242. The decree complained of is clearly not prejudicial to the infant Elsie Price and she can not complain. It is, therefore, unnecessary to determine whether or not she would have been bound by’ the compromise decree in any event. We hold that the demurrers are sufficient and should have been sustained, and will remand the cause for further proceedings. Reversed and remanded.