Linsley v. Brown , 13 Conn. 192 ( 1839 )

Huntington, J.

The motion states, that the name of the defendant subscribed to the deed under which the plaintiff claims title, was written wholly by her husband, in her presence and by her direction, without any manual acton her part, and that she then acknowledged the instrument to be her free act and deed, in the usual form of such acknowledgments in this state.

The case presents two questions for our determination. 1. Was this deed duly executed according to the requirements of the statute ? 2. Is the defendant estopped, by her acknowledgment, from claiming that the deed was not her own act ?

1. By an act passed in October, 1660, it is declared, that after the 1st of May, 1661, all grants, bargains, sales and mortgages of houses and lands, shall be in writing, and subscribed by the grantor, with his own hand or mark, unto which mark his name shall be annexed, and also attested by two witnesses, with their own hands or marks, unto which marks their names shall be annexed. The statute of 1672 enacts, that after the 1st of September, 1673, all grants and deeds made of houses and lands, shall be acknowledged before an assistant, or commissioner, or justice of the peace, and that no grant, after the time last aforesaid, shall be accounted completed according to law, but such as are written, subscribed, witnessed and acknowledged as aforesaid. These provisions have continued substantially the same to the present time. At the revision in 1821, the language was slightly varied, and a new provision introduced relating to the execution of such instruments, by attorney. “ All grants, bargains and mortgages of lands shall be in writing, subscribed by the grantor, with his own hand or mark, unto which mark his name shall be annexed, and also attested by two witnesses, with their own hands or marks, unto which marks their names shall be annexed: or the name of the grantor shall be subscribed to such grant, by his lawful attorney, authorised by a written power for that special purpose, duly executed and acknowledged in such manner as is herein prescribed incase of deeds ; and such subscribing of the name of the grantor shall be attested by two witnesses.” These instruments are to be acknowledged : — “ And no grant or deed of land shall be valid, unless written, subscribed, witnessed and acknowledged as aforesaid.” The legislature have thought proper to prescribe certain formalities to be observed in the execution of deeds of real estate. If it is said, they are all perfectly arbitrary, (although we. think they are highly salutary and useful) it must be admitted, that they are prescribed by competent authority, and must be duly complied with. We, by judicial legislation, can no more dispense with the subscription by the grantor, than we can declare two witnesses, or an acknowledgment, to be unnecessary ceremonies.

The case before us may be considered, first, with reference to the language of the statute, irrespective of the object it was designed to promote, and the evils it was intended to remedy. The words are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use. They are plain, explicit and unequivocal. The grantor is to subscribe with his own hand or mark. A person unacquainted with legal maxims, upon reading these words, would no more doubt that the legislature intended that the grantor personally should do some manual act in affixing his signature, than he would doubt that the writer of a letter, in which he states that it is written with his own hand, meant to be understood that it was written with his own natural hand. That there might be no uncertainty on this point, the words, “ with his own hand or mark,” are superadded to the word, “ subscribed.” The grantor is to subscribe the deed, not by the hand of another, but with his own hand or mark. If the act had provided merely that it should be signed or subscribed by the grantor, there would have been some ground for the construction, that signing the name of the grantor by an authorised agent would be a compliance with the requirements of the statute — a subscription by the agent, being a subscription by the principal, — applying to the signature, the maxim Qui facit per alium, facit per se. But when the mode of subscription is specified ; when the manner is plainly pointed out; when it is said the subscription shall be by the grantor’s own hand or mark, there is no room left for construction. The statute is then plain and unequivocal. It is the fittest course for courts to adhere to the words of a statute, construing them according to their nature and import, in the order in which they stand in the act. The plain and obvious meaning is not to be departed from, for the purpose of instituting an inquiry into the supposed intention of the framers of the law. Such intention is to be collected from the words of the act, rather than presumed from that which does not appear in it. The law is to be interpreted according to the intention of the legislature apparent upon its face. These rules, so eminently just, are fully established by authority. Rex v. Inhabts. of Turvey, 2 B. & A. 520. Jones v. Smart, 1 T. R. 42. Rex v. Inhabts. of Ramsgate, 6 B. & C. 712. Rex v. Inhabts. of Stoke Damerel, 7 B. & C. 563. Rex v. Inhabts. of Great Bentley, 10 B. & C. 520. Wilkinson v. Leland & al. 2 Peters, 627. Their application to the present case is so obvious, that any comment upon them is unnecessary.

Additional evidence of the meaning of the legislature is derived from the use of the same words when applied to the attesting witnesses. They are to attest the subscription of the grantor, with their own hands or marks. It has, certainly, never been supposed, that an attestation could be made by a witness, through the medium of another person signing his name by his direction. It would not only contravene the words, but might defeat the object of the law.

If authorities are necessary to sustain the views we have expressed regarding the true meaning of the statute, reference being had to its language merely, we think the case is not destitute of those which are analogous. Where a power to lease was to be under band and seal, and the lease was sealed, but not signed, by reason of the infirmity of the party by whom it was to be executed, it was held invalid. Blockville v. Ascote, 2 Eq. Ca. Abr. 659. This form was required, by the creators of the power, and could be satisfied only by a strictly literal and precise performance. Hawkins v. Kemp, 3 East 410. Rex v. Inhabts. of Austrey, 6 M. & S. 319. Wright v. Wakeford, 17 Ves. 454. S. C. 4 Taun. 213. Doe v.Peach, 2 M. & S. 576. Wright & al. v. Barlow & al. 3 M. & S. 512, Simeon v. Simeon, 4 Simons 555.

In actions on bills of exchange and promissory notes, where the pleader has averred, that the instrument was executed by the defendant, his own proper hand being thereunto subscribed, it has been held, by some judges, that an instrument signed by procuration, is inadmissible under a declaration so framed. In Phelps v. Riley, 3 Conn. Rep. 266., Hosmer, Ch. J. in giving the opinion of the court, says, “ the expression, his own proper hand writing, ties down the allegation to the fact, as much as if it had been averred, that the defendant did the act by his own natural hand. Pease & al. v. Morgan, 7 Johns. Rep. 467. In Great-Britain, although there was formerly some diversity of opinion, it is now held, that these words may be rejected as surplusage, not however because they do not import a signature by the party himself, but because not being essential to the validity of the instrument, and consequently, not required by the rules of pleading to be averred, they may be treated as surplusage. The averment that the defendant executed it, is sufficient; and if that be made, the additional words descriptive of the manner of the execution, may be rejected. And they are rejected, because they are unnecessary. Levy v, Wilson, 5 Esp. 180. Jones v. Mars, 2 Campb. 305. 450. Booth v. Grover, 3 C. & P. 335. S. C. M. & M. 182.

In the devising clause of the English statute of frauds and perjuries, it is enacted, that the will shall be signed by the devisor, or by some other person in his presence, or by his direction. It is said by Powell, that the latter part of the clause was inserted in favour of persons, who, by blindness, palsy, or other diseases incident to the human frame, were incapable of performing this ceremony themselves. Pow. on Dev. 74. 79. 80. 81. and note 2. by Jarman. Indeed, it is not-easy to perceive why this provision was made, except to meet the extreme case which might sometimes occur, of a testator being unable either to write his name or make his mark. It would be unnecessary, if the name of the devisor might be subscribed by another hand, by his direction. And sealing only, which is a more solemn act than signing, might, with as much propriety, be held to be equivalent to signing, and so a compliance with the statute, as a signature written by a stranger, be considered as a signing by the testator. This, however, would now be held to be insufficient. Grayson v. Atkinson, 2 Ves. 458., per Lord Hardwicke. Ellis v. Smith, 1 Ves. jr. 11. per Willes, Ch. J. Parker, Ch. Bar. and Strange, Master of the Rolls. Wright v. Waterford, 17 Ves. 459. per Lord Eldon.

It has been urged, that the section of the act, which prescribes the manner in which deeds are to be executed by married women, does not contain the words, “ with her own hand or markand that, therefore, there is no necessity for applying to such deeds, the rigid rules supposed to be applicable to deeds executed by others. In 1723, it was enacted, that the real estate of a married woman should not be alienable by her husband’s deed, without her consent, testified “ by her hand and seal” to such deed, and acknowledgment of the same before an assistant or justice of the peace; and it was declared, that all alienations of such estate thereafter made, without such consent, witnessed and acknowledged, should be ipso facto void. These provisions, with an immaterial change in the language, made at the revision in 1821, are now in force. It is to be observed, that this act was passed many years subsequent to the general act regulating the execution of deeds, and was designed to abrogate a practice, which existed, of husbands conveying the real estate of their wives, without the knowledge or consent of the latter. It was not intended to introduce any new rule as to the formal manner in which the deeds of femes covert of their real estate should be executed by them; but to abolish the custom which extensively prevailed, which allowed it to be alienated by the deed of the husband only. It therefore required her assent to be testified, by her hand and seal to the deed: and these words are to have the same operation, as the words of the act of 1660, .“with his own hand or mark.” The act of 1723 is to be construed as if it had been incorporated in that of 1660, and the words are to receive the same interpretation. We cannot suppose, that the legislature designed to prescribe one form of execution by married women, and another form by all Other persons. Much less can be suppose it was intended to deprive the wife of that protection against fraud and imposition, which the statute had furnished to the husband.

When, therefore, we consult the words of the statute regulating conveyances, and find them so positive and unequivocal, and apply the rule, that they are to be taken in their ordinary signification, and that they express the will of the legislature, which is imperative, and then compare the subscription of the deed under which the plaintiff claims title, with the act, we feel bound to say, that it has not been executed in conformity with the requirements of that act.

The present case, however, requires only the application of a rule, which all the decisions sustain — that a case is embraced by the statute, when it is within the mischief contemplated by the legislature, and also within the plain intelligible import of the words of the act. If then, the spirit of the law be consulted, by considering the object designed to be promoted by it, and the evils it was intended to remedy, we shall come to the same result to which we have been led, when confining ourselves to the language in which it is expressed. We shall find very .satisfactory reasons for insisting upon a strict compliance with its provisions. They were all designed to protect the parties and third persons, from the consequences of fraud, perjury and imposition. Parol alienations were prohibited, to prevent titles to real estate from being dependent upon the frail memory of witnesses. The instrument of conveyance was to be subscribed by the grantor, that it might afford evidence that it was his act. It was to be under his own hand, that it might furnish the best evidence that it was executed by him. As however it might happen that he could not write, he was permitted to affix his mark to it. It was to fee attested by witnesses, for the further security of the parties and all others, from fraud and imposition. It was to be acknowledged, to guard the grantor against fraud and duress. A more perfect system could not probably have been devised, to prevent frauds, to give stability to our titles to real estate, and to perpetuate the evidence by which they are supported. No part of this tem is more important, than that which requires the subscription to the deed to be made by the grantor, with his pwn hand or mark. No formality required by the act, is more essential than this, to the attainment of the object contemplated by the legislature. The evidence derived from the hand-writing of the grantor, is oftentimes of the highest importance. It affords greater security and certainty than that arising from sealing. It has been correctly said, that as evidence of the actual handwriting of the party affords a more effectual remedy against fraud than the mere impression of a seal, the identity of which may be in itself doubtful, or which, if the identity be proved, may have been made by another without authority, it is impossible to suppose, that the legislature did not mean to require an actual signature. Smith v. Evans, 1 Wils. 313. Wright v. Wakeford, 17 Ves. 458. The legislature could not but have foreseen, that it might become necessary to prove the execution of a deed, otherwise than by the subscribing witnesses. They might be dead, or out of the reach of process, or incompetent to testify, and their hand-writing not be known. The grantor’s subscription would, in most cases, furnish the necessary evidence ; and therefore, he was required to sign it, with his own hand. The design was, to furnish the best and all the sources of evidence to prove the execution of the deed, under every variety of circumstance, which, it was apprehended, might arise. It is true, that the mark of the grantor does not afford any material testimony; but that mode was allowed from the necessity, which, it was supposed, might, in some cases, exist of adopting it; and should it be admitted, that the deed would be sufficiently signed, if the grantor affixed his mark to it, although he was able to write well, (Taylor v. Dening, 3 Neville & Perry, 228.) yet such a form of signature, in such a case, would rarely be adopted ; and whenever it is in this form, the grantee and all who may become interested in the property, receive the deed with this infirmity, (if it may be so called,) apparent on its face. But when the name of the grantor is signed by another, the deed carries a fraud with it, on its face. It purports to have been signed by the party, when in fact it was executed by another. Subsequent purchasers or owners are thus deceived; and those who confided apparent validity of the instrument, may find themselves defrauded of their property, by means of a defective deed, which had all the visible qualities of a perfect muniment of title. ,We can see the wise policy and prudent foresight which created so many guards to the security of property, in the formalities required by our conveyancing act. We are not willing to weaken, much less to destroy, any one of them. The letter and spirit of the act both demand that we should hold this deed not to have been well executed.

It is supposed, that a practice has prevailed in this state, for a considerable period, of executing deeds of real estate in a manner similar to the subscription in the case before us ; and that it would be dangerous now to disturb it, by a decision which will operate retrospectively. And we have been referred to the authority of Judge Swift, as sustaining this practice. In his Digest, he says, when a grantor directs another to subscribe his name, it is sufficient. 1 Sw. Dig. 123. He does not there refer to any precedent; but in his System, he says, it has been adjudged, that where the grantor directs another person to write his name, or where his hand is guided by another in writing his name, it is a signingof the deed within the statute, and valid to convey the estate; and cites Crary & al. v. Stoddard, S. C. 1794. 1 Sw. Syst. 306. We have seen no report of this case; nor have we had an opportunity to inspect the record. If it decides only, that when the band of the grantor is guided by another in subscribing his name, it is a good execution, we are under no necessity to controvert it; for, in the present case, it appears, that the defendant “ did not touch the pen,” when her name was subscribed by her husband. If it supports the other position stated, we are at liberty to say, it is a single case decided by the superior court, and not binding on this court.

In regard to the practice to which allusion has been made, we are not informed how general it is, nor how long it has existed. We are inclined to the opinion, that it has never prevailed to any considerable extent; and if it has, we can only repeat what we said in Stone v. Stevens, 12 Conn. Rep. 219., and in several previous cases, that no practice, however uniform and extensive it may be, can controul the explicit provisions of a statute. If any evils are apprehended as the result of the construction we give to the statute, an effectual remedy may be provided, by a legislative act, which can be made to operate both retrospectively and prospectively.

2. Does the acknowledgment by the defendant to the magistrate, estop her from claiming that the deed was not her own act ? We do not think the law of estoppel has any application to this case. An instrument, which is inoperative as a conveyance, sometimes estops the party from claiming in opposition to it. The covenants of warranty in a deed of land, where the grantor has no title, may preclude him from asserting a subsequently acquired title to the same land. Other cases in which this principle has been applied, might, but need not, be stated. In all such cases, however, the instrument, as to the matter of estoppel, is supposed to be well executed, by the party to be affected by the estoppel. The infirmity does not attach to the execution. That, as to him, is admitted to be, in all respects, legal. This was the ground of our decision in Stow & al. v. Wyse, 7 Conn. Rep. 214. Indeed, if there be no such execution of the instrument, as, in contemplation of law, makes it the act of the party, there can be no estoppel as to him. And therefore, if there be such an infirmity in the execution that it is not the deed of the party, so long as the defect remains unaided, no estoppel is created. The acknowledgment does not supersede the necessity of a signature, or the attestation of witnesses. All are prescribed, and an acknowledgment of a deed having no signature, or such an one as the law has prohibited, is as ineffectual to create an estoppel, as the acknowledgment of a deed, having one witness only, or none at all. The acknowledgment by the defendant, therefore, constitutes no estoppel to her claim that the deed was not her own act.

The course adopted by the judge at the circuit, enabled the jury to pass upon the facts in the case, and left the point of law involved in the instruction, for the examination and decision of this court. It is one of considerable importance, and is presented in a form wholly unexceptionable. We have carefully considered it ; and a majority of the court are of opinion that the deed of the defendant was not executed in conformity with the requirements of the statute ; that in its present state, it is not obligatory upon her, either as a deed conveying the title to the estate, or by way of estoppel; and consequently, that a new trial must be granted.

In this opinion Church, Watte and Sherman, Js. folly concurred.

Williams, Ch. J.

remarked, that as the statute upon which the question arises, is an ancient statute, and as it received a judicial construction many years since, which had been long acquiesced in ; (Crary & al. v. Stoddard, S. C. 1794. 2 Sw. Syst. 306.) and as titles to real estate may have been created under it; he had been disposed to adhere to that decision and that practical construction ; but upon looking at the strong language of the statute and hearing the remarks of his brethren, he would not dissent from the result to which they had arrived.

New trial to be granted.