Talbot v. Simpson , 23 F. Cas. 644 ( 1815 )

WASHINGTON, Circuit Justice.

The only question, which the special verdict submits to the opinion of the court, is, whether the deed from Simpson and wife, to James Burd, is sufficient to pass the estate of the wife, in the land therein mentioned; the same having belonged to her, at the time of her intermarriage with her said husband. It was admitted, that the conveyance was made, for the purpose of enabling Simpson and wife to receive a reconveyance of the land; which was accordingly executed on the same day, to them, and to the survivor in fee.

The objection to the validity of this deed, to divest Elizabeth Simpson of her estate in the land, is, that the certificate of the justice, who took the examination and acknowledgment of the wife, does not conform to the act of assembly of this state, of the 24th of February, 1770 [1 Smith’s Laws, p. 307]. If the opinion of the court should be against the validity of the deed, then judgment must be entered for the lessor of the plaintiff; if otherwise, then for the defendant. The defects alleged against the certificate, are; that it does not state, 1st, that the justice communicated to the wife, the contents of the deed; and 2dly, that she freely and voluntarily acknowledged the. deed, separate, and apart, from her husband.

NOTE. The commission to William Mitchell, produced in the above ease, was under the great seal of the supreme executive council, dated the 10th of June, 1771; and appointed him a justice of the peace; “to execute and do all the acts and things, which any justice of the peace, in the county aforesaid, by the general commission assigned, lawfully can, may, or ought to do; both in the courts of common pleas, orphans’ court and elsewhere; as fully as if his name, amongst others, the justices in the said general commission nominated, had been particularly' inserted.”

The act of assembly, of the 24th of February, 1770, directs, “that the husband and wife, having executed the deed, shall appear before one of the justices of the supreme court, or before any justice of the county court of common pleas, for the county where the lands lay, and acknowledge the said deed; which judge or justice shall, and he is authorised and required, to take such acknowledgment; in doing whereof, he shall examine the wife, separate, and apart from her husband, and shall read, or otherwise make known to her, the full contents of such deed; and if, upon such separate examination, she shall declare, that she did, voluntarily and of her own free will and accord, seal, and as her act and deed deliver, the said deed, without any coercion, &c. of her husband,” then such deed is declared to be valid in law, in like manner, as if the said wife had been sole.

Both the questions arising in this cause, appear to have been settled in the supreme court of this state, upon great deliberation. We have attentively considered the cases of McIntire’s Lessee v. Ward, 5 Bin. 296, and Shaller v. Brand, 6 Bin. 435, and feel no hesitation in declaring our entire approbation of the fundamental principle upon which they are both decided. That principle is, that the form of the certificate is immaterial, provided the directions of the law, are substantially complied with; and what are they? That the wife should freely and voluntarily acknowledge the execution of the deed, by which she parts with her estate and interest in land, having a full knowledge of the contents of the same; and, that the magistrate should satisfy himself, upon these points, by examining her apart from her husband.

The enquiry then is, does it sufficiently appear, by this certificate, that these directions have been complied with? It is stated, that the wife acknowledged the deed to be her act and deed; that she knew the contents of it, and that she freely consented thereto; she being examined separate and apart from her husband. From the phraseology of this certificate, it would appear, that the acknowledgment of the wife was made; her knowledge of the contents- of the deed ascertained; and her free consent expressed, during her examination apart from her husband. It would seem to be perfectly reasonable to construe the sentence distributively, that is to say; that the husband acknowledged the deed to be his act; and also, that the wife made the same acknowledgment, < she being examined separate and apart from her husband.- But even if a stricter construction were adopted, so as to compel the court to say, that her acknowledgment was made in the presence of her husband; still her subsequent privy acknowledgment to the justice, that she had done it freely, or to use the precise words of the certificate, “that she consented thereto;” would, to every intent and purpose, and within the obvious spirit and meaning of the law, amount to an acknowledgment of the deed, apart from her husband. It would be a free and voluntary ratification, in the absence of her husband, of an act done in his presence.

As to her knowledge of the contents of the deed, it is manifest, that unless the magistrate made them known to her, or she to him, he has certified a falsehood, for he states it as a fact, that she knew the contents; which he could not truly certify, unless he had in some way, satisfied himself, that she did know them. And of what importance would it be, whether she obtained this knowledge from the magistrate, from her own examination of the deed, or even from the information of her husband, If the fact certified be true, that she knew the contents? This case is much stronger, as to this point, in favour of the deed, than the case of M’Intire v. Wood [Case No. 8,825], in which the same point was decided; and it is precisely the same, as the ease of Shaller v. Brand [supra], in which the other point was decided.

An attempt was made, and ingeniously supported by the plaintiff’s counsel, to weaken the authority of these cases in this court; by distinguishing between voluntary deeds, and deeds to bona fide purchasers without notice. The argument was, that a court of chancery will, in the latter ease, go far to supply the defective execution of powers, whilst it refuses to afford any aid, in the former case; and, that -as the courts in this state, exercise a mixed jurisdiction of law and equity, the judges have been influenced in their decisions, in the cases that were cited, by the above rule of the court of chancery. This argument admits of many answers. The first is, that the judges do not in their opinions, rely upon any such distinctions, as the counsel have mentioned; and in the next place, it would be inapplicable to one of the cases, that of Watson v. Bailey, 1 Bin. 470, in which the general principle was laid down, by which that and the subsequent cases were decided. But lastly, the principle decided in all the cases, depends - upon the construction of a law, the rules for which, are the same in courts of equity as in courts of law. Judgment for defendant.

The commission was admitted to be duly executed, and authenticated according to law; but it was insisted, that it did not constitute him a justice of the court of common pleas; but that he ought to have had a separate commission for that office; and to prove this, two commissions, to some other persons, as a justice of the peace, and as a justice of the court of common pleas, were produced. The court decided the evidence to be sufficient, as the commission clearly constituted him a justice of the court of common pleas, and it was for the executive council to establish such forms of commissions, as to that body might seem right. To this opinion, an exception was taken, by the plaintiff’s counsel, but no writ of error was prosecuted. Judgment for the defendant.