Judson v. Porter , 53 Cal. 482 ( 1879 )

By the Court, McKinstry, J.:

Secs. 1202 and 1203 of the Civil Code are as follows: “1202. When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the District Court to obtain a judgment correcting the certificate.” “1203. Any person interested under an instrument entitled to be proved for record may institute an action in the District Court against the proper parties, to obtain a judgment proving such instrument.”

The question here presented is, whether, under these sections, an action can be maintained to correct the notarial certificate of the acknowledgment by a married woman of the execution of an instrument purporting to convey her separate real property, made prior to the adoption of the Civil Code.

At the date the defective certificate was made, sec. 19 of the Act of April 16th, 1850, “ concerning conveyances,” declared the law: “ A married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and her husband, and certified in the manner hereinafter provided, by the proper officer taking the acknowledgment.”

It was always held here that statutes like this were to he considered as relaxing the rule in respect to the incapacity of married women, and that the wife, therefore, could dispose of. or incumber her real estate only to the extent and in the mode authorized by such statutes.

By the language of the 19th section, above, cited, she could convey only by means of the signature, acknowledgment, and certificate. Neither the writing, nor the acknowledgment, nor both, passed the title. The deed was not fully executed until the proper certificate was attached.

Sec. 1205 of the Civil Code (which is found in the same chapter with 1202 and 1208) provides: “ The legality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument made before this Code goes into effect, executed, acknowledged, proved, or recorded, is not affected by anything contained in this chapter, but depends for its validity and legality upon the laws in force when the act was performed.”

By its terms this section provides that the legality of the execution of an instrument made before the Code shall not be affected by anything contained in secs. 1202 and 1203, but must depend upon the laws in force when the act was performed. It is impossible to construe this section but as declaring that no part of the chapter should be held proprio vigore to validate an execution invalid when it was attempted; and sec. 1205 (which refers to the whole chapter) can have no application to secs. 1202 and 1203, unless its effect is to prohibit any proceeding under those sections to make good a defective execution of an instrument attempted prior to the Code. The expressions, “ the legality is not affected,” and “the legality depends upon the laws then in force,” are very broad when applied to the execution of an instrument. It could hardly be said that nothing in the chapter affected the execution of an instrument, if by virtue of the provisions contained in the chapter a proceeding could be taken to render. perfect an execution previously defective, and therefore of no effect. In such case the legality of the execution would be affected by something in the chapter the moment proceedings to affect its validity were commenced under sections of the chapter.

The conclusion is that an action to correct a defective certificate of a Notary Public of the acknowledgment by a married woman of her execution of an instrument purporting to be a conveyance of her separate real property, cannot be maintained under secs. 1202 and 1203 of the Civil Code, when the defective certificate xvas made prior to the enactment of that Code.

Judgment and order reversed.

Mr. Chief Justice Wallace, being disqualified, did not sit in this cause.