Harty v. Ladd

By the Court, Upton, J. The power of a married woman to divest herself of her interest in land by joining in the execution of a deed, 'is a power derived from the statute. By the common law she had not the capacity to thus- divest herself of her interest, and the statute concerning conveyances has not wholly removed the disability of a married woman to convey real estate by deed, but has qualified it, or created an exception to the rule by providing a special mode by which a wife may divest herself of her interest in lands. The affirmative provisions are in substance that lands may be conveyed by deed, signed, sealed “ and acknowledged or proved and recorded, as directed in this title.” “ A husband and wife may by their joint deed convey the real estate of the wife.” “ The acknowledgment of the wife shall be taken separately and apart from her husband.” “The officer, taking the acknowledgment shall endorse thereon a certificate of the acknowledgment thereof.” .The deed shall be recorded “with the certificate of acknowledgment.” Bor the reason that the deed of a married woman has no force or effect, except that which is derived from these provisions of statute, it follows that the deed must be made in [355] compliance with the statute. The statute can no more be deemed complied with, without the proper certificate being endorsed on the deed, than without the acknowledgment or without the signature of the wife. A femme covert derives her power to convey by deed from the statute, and a full compliance includes the specified acts on the part of the certifying officer. The statute contemplates that the specified certificate will be made, and sections 1 and 22 of the act concerning conveyances indicate that the recording of the deed, “ with the certificate of acknowledgment,” is essentia] to constitute a conveyance by a married woman. I think that the very language of the statute which confers on a wife power to convey, excludes the idea of proving her acknowledgment or her execution of the deed in a case where tthe certificate has never existed. * The objection to the defense last set out in the answer, is that the answer is uncertain as to the tract of land alleged to have been exchanged. If it was necessary to designate the tract, it should he described with certainty. The demurrer should be sustained as to each of the two defenses last set forth in the answer. Footnotes [*] Elliott v. Piersot, 1 Pet. 328; Brown v. Farran, 3 Ohio, 155; 3 McLean, 230.