Cocke v. Brogan & Thorn , 5 Ark. 693 ( 1844 )

By the court,

Ringo C. J.

Upon the facts thus presented by the record, the plaintiff by her assignment of errors, questions, First, The correctness of the opinion of the court, excluding from the jury the said deed of Roswell Beebe and wife, to Ashley; and Second, The opinion of the court, instructing the jury to to find for the defendants “as in case of nonsuit.”

To the deed of Beebe and wife, to Ashley, there is no subscribing witness; but it was duly acknowledged by all of the parties to it, before a justice of the peace in and for the county of Pulaski, in which the lands thereby conveyed are situate, on the day of its date, and her dower interest therein duly relinquished by the wife of Beebe, and on the same day filed for record in the office of the clerk of the circuit court and ex-officio recorder for said county, and duly recorded by him on the 8th day of January, 1841. Does the deed thus executed and authenticated, transfer the legal title of Beebe in the lands thereby purporting to be conveyed to Ashley 1 Thát it does pass the estate as between the parties to the instrument, we think there can be no doubt, because the statute relating to conveyances of real estate, Rev. Stat. Ark. ch. 31, provides expressly for the acknowledgment of deeds or instruments in writing, for the conveyance of real estate, by the grantor personally appearing before any justice of the peace, and stating that he has executed the same for the consideration and purposes therein mentioned and set forth; and the relinquishment of dower by any married woman, in any of her husband’s real estate, “shall be authenticated and the title passed,” by her voluntarily appearing before the proper court or officer, and in the absence of her husband, declaring that she has of her own free will, executed the deed or instrument in question, or that she had signed and sealed the relinquishment of dower, for the purposes therein contained and set forth, without compulsion or undue influence of her husband. This is one of the modes prescribed by law, for the authentication of such deeds and instruments in writing, as are designed to convey any interest in real estate, which appears to us to be clearly indicated and directed by the 13, 16, 17, 18, 20, 21, and 22 sections of the statute cited above.

Another method of authenticating such deeds and instruments is, by the testimony of the subscribing witnesses thereto, and in such case, there must be two witnesses, who subscribe the same according to the provisions of the 12th section of the statute; that is, the deed must be executed in their presence; or when not executed in their presence, be acknowledged by the grantor in their presence, and whenever the witnesses do not subscribe the deed at the time of its execution, the daté of their subscribing the same must be stated with their signatures, and such deed being acknowledged by the grantor, or its execution proven by one or more of those so subscribing it as witnesses, before any court or officer authorized to lake such acknowledgment or proof, according to the provisions of the 13th, 14th and 15th sections of the same statute, the law regards as well and sufficiently authenticated, upon the same being certified by the court or officer taking it, and authorizes the deed together with such certificate of the court or officer to be recorded. Thus making such acknowledgment of the grantor before a court or officer authorized to take it, as effectual in every respect and for every purpose as the probate thereof by the subscribing witness, thereby in such cases dispensing altogether with the necessity of having such witnesses. The deed in question therefore appearing to have been properly acknowledged by the grantor, and the acknowledgment thereof to have been well and sufficiently certified by an officer authorized to take and certify it, certainly transferred the legal title to the lots in controversy from Beebe, to Ashley, and the same therefore, by mere operation of law, immediately vested in the person then entitled to the estate by tille derived from the previous grant or conveyance of Ashfey, according to the provisions of the 4th section of said statute, which declares that “if any person shall convey any real estate by deed purporting to convey the same in fee simple absolute or any less estate, and shall not at the time of such conveyance, have the legal estate in lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired, shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantee at the time of the conveyance.” This deed from Beebe and wife, to Ashley, was legitimate testimony for the plaintiff, as it would prove, or at least conduce to prove, in him a vested legal right to the lots in controversy; consequently, the court erred in refusing to permit her to read it in evidence to the jury, and for this error the judgment is reversed.

The second question, we consider of little importance, and free from difficulty. For although the language in which the instruction to the jury is couched, is not strictly appropriate, we cannot perceive how the plaintiff could have been prejudiced by it. Because it is perfectly clear that the testimony then before the jury, not only failed to establish in her any legal right to the lots in controversy, but proved it to be in a different person; consequently, she had no legal right'to recover them upon such testimony, and the court was bound so to instruct the jury, and such we understand to be the scope and object of the instruction as given. The addition thereto, that the finding should be “as in case of nonsuit,” not conveying to the jury any legal idea whatever, nor having any legal effect upon the rights of either party, although superadded to the verdict for the defendants. Judgment reversed.