Doe ex dem. Hughes v. Wilkinson , 21 Ala. 296 ( 1852 )

LIGON, J.

— Where the tfee of land is in the wife, she having received it by inheritance, the deed of the husband and wife, acknowledged in the ordinary form, as the first deed in this record seems to have been, would not pass it to the grantee, under the laws of this State; for, by these, as they existed at the time this deed was made, a married woman could part with her title to land in no other way than by deed acknowledged by her on private examination. Clay’s Dig. 155, § 27.

It is clear, that, if the title of the defendant depends upon the first deed in the record, with the certificate of acknowledgment immediately following it, it must fail. This proposition Avas not controverted on the argument, but it was insisted, that the acknowledgment which follows the deed by which Mrs. McBryde conveyed her dower estate in the premises to Homer Blackman, the grantee, Avas intended by her, and should be held by the court, to extend to the deed made by her husband and herself, Avhich purports to pass the fee to Blackman. This conclusion cannot be legitimately drawn from the record before us. .From all that appears in it, the facts are these: On the 16th of May, 1839, E. A. McBryde, the husband, executed and acknowledged the deed to Black-man, and on the 17th of the same month, Mrs. McBryde also executed and acknowledged it. This inference is drawn from the certificate of the justice, and the date of that deed, together with the date of the relinquishment of dower and the certificate of its acknowledgment. By reference to the deed of McBryde and Avife, it will be seen that it bears date May 16th, 1839 ; the certificate of acknoAvledgment is dated the 17th of that month, and recites that the deed Avas acknowledged by McBryde and wife on the 16th and 17th of May. On the latter day, also, Mrs. McBryde conveys her doAver by deed, separate from that made by herself and husband, and, on private examination before the same justice, acknowledges its execution. The inference is, therefore, irresistible that she had no connection Avith the deed until that day; Avhen, from the date of the first deed, McBryde’s connection with it seems to have commenced and terminated on the 16th. On no other hypothesis can Ave account for the singular certificate of the justice, Avhich recites an acknowledgment of the execution of a deed by the grantors on íavo separate days. The phraseology of the deed of relinquishment seems, also, to indicate, that it Avas AArritten on the back of the original deed; for it designates McBryde as “the grantor Avithin named,” and is itself a separate and distinct instrument, by its terms conveying the dotver interest of Mrs. McBryde, and that alone. It could not, in fact, have obtained a more distinct character, had it been engrossed on paper wholly separate from that containing the original deed.

With these facts before us, it is apparent that tbe certificate of the justice, which recites, that Mrs. McBryde, when examined “privately and apart from her husband, acknowledged that she signed, sealed, and delivered the foregoing instrument as her voluntary act and deed,” &c., must be held to apply to the de<^d immediately preceding it, or the deed conveying her dower, and not to the one which was made by her husband and herself, and which purports to convey the fee.

Under this view of the case, the fee still remained in her, and on her death, if she survived her husband, or on his death, if he were the survivor, it vested in her heirs at law, who could immediately assert it against the tenant in possession.

As these conclusions are directly opposed to those attained by the court below, the judgment must be reversed, and the cause remanded.