Shrawder v. Snyder

[6] Opinion, Mr. Justice Williams : The farm in controversy in this case belonged prior to 1846 to Hannah Ouster and Catharine Shrawder (nee Custer), who were sisters. They conveyed it in that year to John Shrack by their deed in which Joseph Shrawder, the husband of Catharine, joined. Soon after, Shrack made a deed for the same farm to Joseph Shrawder. Both deeds were properly recorded. Forty years later, in 1886, Shrawder made a mortgage covering the same land to George W. Oliver for the sum of twelve thousand five hundred dollars. On default being made in the payments provided for, proceedings were had upon the mortgage which resulted in a sale of the mortgaged premises by the sheriff in 1888. Snyder, the defendant in this action, went into possession under the purchaser at sheriff’s sale. Mrs. Shrawder, the plaintiff, claimed to recover an equal undivided one half of the property, on the ground that the deed made by her and her sister to Shrack in 1846 did not show that she had been examined by the magistrate separate and apart from her husband, or had separately acknowledged the deed, and that the deed was for this reason inoperative and void as to her. The certificate of acknowledgment is clearly wanting in the particulars mentioned. It does not meet the requirements of the act of assembly that prescribes the form in which the acknowledgment of a married woman must be taken, and the learned judge was right in so holding. If the deed had been executed since 1850, the conclusion which he drew as to its effect in binding a married woman would have been inevitable. But the form provided by law may be modified or dispensed with altogether by the law-making power, and there is a series of statutes, beginning in 1770 and extending down to 1850, in which this right has been asserted and exercised. The acts of 1848, 1849, and 1850, with which the series of curative or validating laws ends, were modeled upon that of 1826. That act declared that no deed which had been executed in good faith prior to a date named therein, by husband and wife, and acknowledged before an officer authorized by law to take acknowledgments of deeds, should be defeated or held to be defective as a conveyance because the certificate of the officer failed to set forth the particulars necessary to show a full compliance with the statute in taking the acknowledgment of the wife. [7] The effect of this statute came under consideration in this court in Tate v. Stooltzfoos, 16 S. & R. 35. The constitutional power of the legislature in the premises was affirmed, and the act was held to cure just such defects in the certificate of acknowledgment as appear in this case. The certificate of the acknowledgment did not show a separate examination of or acknowledgment by Mrs. Tate, but the deed was held to be a valid and effective conveyance of her title, because it was within the operations of the act of 1826. The same question was again raised in Mercer v. Watson, 1 W. 330, and Tate v. Stooltzfoos was recognized as the law, and followed in that ease. The deed now before us has a defective certificate of acknowledgment by the officer before whom the parties appeared to acknowledge its execution. It fails in the same particulars .as the deed in Tate v. Stooltzfoos, but it was executed in 1846. The curative acts of 1848, 1849, and 1850 are each and all applicable to it, and they operate to relieve against the defective certificate, and to give validity to the deed. Without this legislation, the deed would not bind Mrs. Shrawder, but with the aid thus afforded it becomes a valid and binding conveyance. Her title passed under it, because this legislation made what would otherwise have been a defective certificate of her acknowledgment a sufficient proof of her execution of this deed to vest her title in her grantee. The learned judge overlooked, or, what is a better statement of- the fact, counsel failed to call his attention to the curative legislation applicable to this deed. The question is, however, fairly raised by the reserved point, and it is conclusive of the plaintiffs’ title. The judgment on the reserved point is now reversed ; and judgment is entered thereon in favor of the defendant, non obstante veredicto.