McBryde's Heirs v. Wilkinson , 29 Ala. 662 ( 1857 )

RICE, C, J.

-By the old law, a married' woman could only convey her lands by fine or common recovery, both of which were alienations by matter of record of great solemnity. Our statute of 1803 (Clay’s Digest, 155, § 27) abolished that mode of conveyance, and provided, that “ no estate of a feme covert, in any lands, tenements, or hereditaments, lying and being in this State, shall pass” except by her deed or conveyance, and then only upon the compliance with the two following requisites, to-wit: 1st, that she should make a previous-acknowledgment, on a private examination apart from her husband, before the proper officer, that she signed, sealed, and delivered the deed, as her voluntary act, free from any fear, threats, or compulsion of her husband ; and. 2d, that a certificate of such private examination and acknowledgment shall be written by the officer, on or under the deed, and be signed by him. A compliance with both these requisites was essential to the passing of the title. The design of the first was, to secure the wife against any improper influence on the part .of the husband. The intention of the second was, to provide additional protection'to her rights, by a cotempora-neous entry by the officer, of the examination and acknowledgment; which entry would prevent that prejudice to her rights that might result from the uncertain recollection of witnesses. If the court could dispense with the certificate, it might declare the examination and acknowledgment unnecessary, and thus completely destroy the statute. The certificate of the officer can no more be dispensed with under the statute, than could an entry of record of the flue under the old law.

In the present case, there is the deed of the husband and wife, and then follows the certificate of the justice, that they both appeared before him, and “ acknowledged the above instrument to be their own free act and deed.” Then follows a relinquishment of dower, signed by tlie.wife ; and then the certificate of the justice, to the effect that he had examined the wife, privately and apart from her husband, and that on such private examination she “ acknowledged that she signed, sealed, and delivered the foregoing instrument, as her voluntary act and deed, freely, without any .threat, fear, or compulsion of her said husband.”

It the -words “ the foregoing instrument,” as used in the last-mentioned certificate, refer to the deed, and not to the relinquishment of dower, the estate of the ’wife in the lands mentioned in the deed passed by the deed and certificate. But, if those words refer to the relinquishment of dower, and not to the deed, the estate of the wife in the lands did not pass. In a case at law between these same parties, reported in 21 Ala. 296, this court, upon the agreed facts then presented, decided that those words referred, not to the deed, but to the relinquishment of dower. But in that ease, the decision was based on the deed, the certificate which followed it, the relinquishment, and the certificate’ which followed it, without any parol evidence tending to show the extrinsic circumstances under which the last-mentioned certificate was made, or that the words of reference therein used related or applied to the deed, and not to the relinquishment.

When that case' ivas remanded by this court for another trial, the bill in the present suit was filed, to enjoin its further prosecution, and to correct the mistake in the last-mentioned certificate, which, the complainant alleges, was made therein by the justice, and to apply the words of reference therein to the deed instead of the relinquishment. The bill expressly states that, by the mistake or want of skill of the justice, he so drew the certificate, as to make it apply to the relinquishment, although it was really intended by him, and by the married woman, that the certificate should apply and refer to the deed. The bill is, in effect and substance, one for reforming the certificate, and aiding or supplying the defective execution of a power created by statute. It is, therefore, totally destitute of equity ; for, although a court of equity may relieve against the defective execution of a power created by a party, yet it cannot relieve against the defective execution of a power created by lawr nor dispense with any of the formalities required thereby for its due execution.— Bright v. Boyd, 1 Story’s Rep. 487 ; Moreau v. Detchemendy, 18 Missouri Rep. 522; Chauvin v. Wagner, ib. 531 ; 1 Story’s Equity* §§ 97, 177.

The line which separates between simple interpretation of the instrument, and direct evidence of intention independent of the instrument, must be kept in view, especially in cases like this, in which the disposition of property can only operate by writing, and to which the equity doctrine, of correcting mistakes, or aiding the defective execution of powers, does not apply. — 3 Phil. Ev. (edition of 1839,) 1423, 1424, 1425,1426. We do not deem it our duty now to decide, whether in such cases, if one instrument refers to some other, parol evidence is or is not allowable to show what the reference means, or to apply the terms of the reference. If such evidence be allowable for any such purpose as between these parties, in relation to the instruments above noticed, it is allowable in the case at law between them. — Addison on Contracts, 146-151 ; Doe v. Burt, 1 Term Rep. 703 ; 3 Phil. Ev. 1399, 1409, 1423, and “Parol Evidence” in the index thereto ; Hogan v. Reynolds, 3 Ala. 59 ; Bibb v. Reid, 3 ib. 91; Osgood v. Hutchins, 6 New Hamp. Rep. 374; Wood v. White, 32 Maine Rep. 340 ; Findley v. Ritchie, 8 Porter’s Rep. 452.

As the bill is without equity, the chancellor erred in not dismissing it. His decree is reversed ; a decree must be here rendered, dismissing the bill ; and the complainant must pay the costs of the appeal, and of the court below.