Tubbs v. Gatewood , 26 Ark. 128 ( 1870 )

HaReisoN, J.

This was an action of ejectment, by William Tubbs and bis wife, Priscilla M. Tubbs, and George W. Sheppard, against James E. Gatewood, James S. Thomas, Nathaniel H. Burk, Nicholas Burnett, Mack Banks, Jonas McKindree and Stephen Forehand, for a block of ground, in tbe town of Bes Arc. Tbe defendants, except McKindree, who was not served with process, pleaded tbe general issue, and the verdict and judgment were in their favor.

Tbe block in controversy, was conveyed by George 0. Watkins to Sarah Sheppard, wife of Christopher Sheppard, on the 21st day of May, 1850, and she and her husband were in possession in that, and several years thereafter. On the 23d day of October, 1854, Christopher Sheppard, and his wife, conveyed lots three, four, five, eight, nine and ten, in said block, to Albert G. Ellis, under and from whom the defendants claim title.

The deed to Ellis, which was read to the jury against the plaintiff’s objection, purported to grant, bargain, sell, alien and convey the lots to him in fee simple; and, except that it contained, after the grant or conveyance of the property, a clause of relinquishment of dower by Mrs. Sheppard, was in every respect in the usual form of a deed of conveyance, of a-married woman’s real estate-, but the certificate of her acknowledgment attached to the deed was as follows: “I further certify that on this day, voluntarily appeared before me, Sarah Sheppard, wife of the said C. Sheppard, to me wpll known as the person whose name appears upon the within and foregoing deed of conveyance, and, in the absence of her husband, declared that she had signed and sealed the relinquishment of dower, and the foregoing deed of conveyance., therein expressed, for the purposes therein contained and set forth, without compulsion or influence of her husband. In testimony whereof,” etc.

Sarah Sheppard died in 1859, and her husband in 1861, and her heirs-at-law were her children, the plaintiffs, Priscilla M. Tubbs and George "W. Sheppai’d, Salina Sheppard and Frederick Sheppard. Salina Sheppard died, without issue, in 1863. Frederick Sheppard, on the 24th day of December, 1867, conveyed all his right and interest in lots one, two, three, four, five, eight, nine, ten, eleven and twelve, in the block in controversy, to Priscilla M. Tubbs.

Evidence was adduced to prove that the defendants were in possession of the property at the time of the commencement of the suit.

The two following instructions, asked by the plaintiffs, were refused by the court :

1. “If the jury believe the evidence before them, the plaintiffs are, upon the construction and legal effect of the deed from Christopher Sheppard and. wife to Albert G-. Ellis, entitled to recover the property therein described.”

2. “If they believe the evidence, the plaintiffs are, upon the construction and legal effect of the deed read in evidence, entitled to recover an undivided half of the property described in the deed from Christopher Sheppard and wife to said Ellis.”

The main question for our decision, and upon which all others depend, is as to the sufficiency of Sarah Sheppard’s acknowledgment of the deed to Ellis. If properly acknowledged, no serious doubt can exist that it conveyed the fee in the lots described in it, which was in her, to Ellis; for it is a familiar and well settled rule in the construction of deeds, that where there are two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected. Besides, being herself the owner of the property, she had no right of dower to relinquish, and we cannot presume that she intended a nullity.

Section 21, chapter 57, Digest, prescribes the manner of authenticating conveyances of real estate by married women, as follows:

“The conveyance of any real estate by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated and the title passed by such married woman voluntarily appearing before the proper court or officer, and, in the absence of her husband, declaring that she had, 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.”

In taking the acknowledgment of a deed, as well as that of a married woman as any one else, a literal conformity with the statute will be dispensed with, when there is a substantial compliance with its requirements. Trammell v. Thurmond 17 Ark., 216; Jacoway v. Gantt, adm’r., 20 Ib., 190; Alexander & Belt v. Merry, 9 Mo., 510; Webster’s Lessee v. Hall, 2 Har. & McH., 19; Dex v. Geiger, 4 Halst., 225, Nantz v. Bailey, 3 Dana, 111.

Though signing and sealing, without delivery, is not a complete execution of an instrument, the phrase “signed and sealed,” in the certificate, was obviously used agreeably to the common understanding and acceptation of its meaning, as an equivalent expression for “signed, sealed and delivered,” or '“executed.”

Mrs. Sheppard’s object and purpose was, as stated in her acknowledgment, to make a conveyance of the lots described in the deed, and the officer, by whom it was taken, must have understood her as declaring that she had executed it, for we cannot conceive that he intended to certify to so nugatory an act, as that she acknowledged the signing and sealing only of the instrument.

It is further contended that if an execution of the deed is shown by the certificate of acknowledgment, she did not declare it to be of her “own free will.” The certificate does not so state, in those words, but she declared that it rvas “ without compulsion or undue influence of her husband.” The wife is under subjection to no one except her husband, and her freedom from the constraint and control of all other persons is presumed, and need not be shown, and the free will with which :she is required to act in the disposal of her real estate is, free■dom from the constraint and undue influence of her husband. That appearing by the certificate, we are clearly of the opinion that her voluntary execution of the deed is sufficiently stated therein.

Holding, then, that the provisions of the statute were substantially complied with, and that the deed conveyed Mrs. Sheppard's interest in the lots described in it, there could be -no valid objection to its being read to the jury, and it must, for the same reason, likewise follow, that the court did not err In refusing to give the jury the instructions asked by the plaintiffs.

The judgment of the court below is affirmed.