Lindley v. Smith , 46 Ill. 523 ( 1868 )

Mr. Justice Walker

delivered the opinion of the Court:

This was an action of ejectment, brought by Hannah Smith, in the Circuit Court of Clark county, against Samuel Bindley, to recover certain tracts of land. To the declaration, the plea of the general issue was filed and issue joined. By agreement of the parties, the cause was submitted to, and tried by, the court, without the intervention of a jury. After hearing the evidence, the court found for the appellee, and that she recover an undivided half of the premises. A motion for a new trial was entered, which was overruled by the court, and a judgment rendered in favor of plaintiff below.

It is agreed, that appellee (late Hannah Hollenbeck) was seized in fee in her own right, as one of the two, and only, heirs of Lawrence Hollenbeck, deceased, who died about the year 1851, of an undivided half of the lands described in plaintiff’s declaration, and that she continued so seized until the 14th day of January, 1859, when she, with her husband, Joseph Hollenbeck, with whom she had previously intermarried, by deed with covenants of general warranty, conveyed the lands, for the consideration of five hundred dollars, to Thomas J. Sturr and Charles ¡M¡. Taylor, subject to a deed of trust, to ¡Nelson Hoddy, for $950. The deed was acknowledged before William C. Whitlock, a justice of the peace, to which he attached his certificate.

This is the certificate:

“ State of Illinois, Clark county, ss.

I,- William C. Whitlock, a justice of the peace, in and for the said county in the State aforesaid, do hereby certify that Joseph Hollenbeck, personally known to me as the same person whose name is subscribed to the foregoing warranty deed, appeared before me, this day, in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth.

And the said Hannah ¡M. Hollenbeck, wife of said Joseph M. Hollenbeck, having been by me examined separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument in writing having been by me made known and fully explained to her, acknowledged that she had freely and voluntarily executed the same, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and seal, this fourteenth day of January, A. D., 1859.

W. 0. WHITLOCK, J. P; [seal.] ”

Appellee having established her title, and proved the death of her former husband, in 1865, appellant offered to read this deed in evidence, but it was rejected by the court, on objection by appellee. Appellant then produced Whitlock as a witness, and offered to prove by him that he, at the time of taking the acknowledgment, personally knew Hannah Hollenbeck, and that he knew at the time that she was the identical person who signed the deed, which evidence the court rejected, and refused to receive. • Appellant then introduced in evidence, a deed from Sturr and wife, conveying their interest in the land, to Taylor; also a deed from Taylor to appellant for the same lands. It also anpears that Sturr and Taylor entered into immediate possession of the premises, and they and their grantees have paid all the taxes legally assessed thereon, since that time.

Three questions are raised and discussed upon this record. First, was the certificate of acknowledgment to the deed from Hollenbeck and wife, sufficient to pass the wife’s title to the lands ? Second, was the proof offered to be made by Whit-lock, competent and admissible; and third, was the action barred by the statute of limitations of 1839 ?

It has been repeatedly and uniformly held by this court, that a feme covert can only convey her real estate by complying with the statute providing for such alienations. Mariner v. Sanders, 5 Gilm. 125; Russell v. Ramsey, 35 Ill. 370; Hughes v. Lane, 11 Ill. 128; Lane v. Soulard, 15 Ill. 123; Mason v. Brock, 12 Ill. 273; Garrett v. Moss, 22 Ill. 363; Gove v. Cather, 23 Ill. 634. In the last of these cases, this objection was sustained by the court as substantial, and fatal to the acknowledgment. The court there say, that “we cannot intend anything in -favor of it,' or supply words that are wanting, or change the personal pronouns from male to female. The manifest defects in it cannot be supplied by the court, and have not been explained by counsel. ¡Nor does the certificate of acknowledgment, defective in other respects as it is, state that the wife was known to the. officer to be the person who signed the deed. The statutory forms must be substantially complied with, and must control.” That case must govern this, as the point was then deliberately determined, and has become a rule of property, under which rights have been acquired, and liabilities incurred.

The statute is explicit, that in order to convey property in real estate, the grantor shall appear before a proper officer, to whom he or she is known, or is proved by a credible witness, to be the person who executed such deed or conveyance. And the officer is required to endorse or annex a certificate to the deed, stating that such person was personally known to him, or proved by a witness who shall be named, to be the person who subscribed the deed. This requirement has been held to be one of substance, and in its absence, the deed is not admissible in evidence. Tully v. Davis, 30 Ill. 103; Shepherd v. Camriel, 19 Ill. 313; Adams v. Bishop, ib, 395 ; Montag v. Linn, ib. 399. In the case of Tully v. Davis, we said that where the word known was omitted in the certificate, it was fatally defective. And the rule is firmly fixed, that it is the acknowledgment of a feme covert which is the operative act to pass her title. When it is fatally defective, the deed is regarded as inoperative.

Nor does the act of 1853, in this respect, change the law. It was only an amendment of the statute as it had previously existed. And in the case of Lyon v. Kain, 36 Ill. 362, it was held, that under this act the officer taking the acknowledgment must certify that the grantor was known or proved to be the person who is the grantor in the deed. A deed cannot be said to have been acknowledged until it appears that it was the grantor himself, and not some person who may have personated him, who was before the officer and made the acknowledgment. This provision is wise and salutary in its operation. If no such requirement existed, forgeries would be easily perpetrated, and it would be hard, in all cases, and impossible in many, to prove the fact. Remove this safeguard, and titles to real estate would be held by a slender and brittle tenure.

We next come to the consideration of the question, whether the defect in the acknowledgment could be explained by the parol evidence of the justice who certified it? In the case of Elliott v. Piersal, 1 Pet. 328, the court held that where an acknowledgment failed to state that a feme covert was examined separate and apart from her husband, as to whether she had executed the deed voluntarily, the defect could not be supplied by parol At the common law, a feme covert could only acknowledge that she transferred her real estate or relinquished her dower by a fine or recovery, and it was, and could only be by matter of record. The acknowledgments prescribed by statute are intended to take the place of such alienations by record, at least so far as the wife’s estate or interest is concerned. And the acknowledgment cannot rest partly in writing and partly in parol.

When it is remembered, that the deeds of conveyance by married women for the transfer of their real estate or the relinquishment of their dower, do not take effect by delivery as other deeds, but only by being acknowledged in the mode prescribed by the statute, we should hesitate long to permit the officer who made the defective certificate, or some other person, to subsequently supply the defect by oral evidence. If that were permitted, it would present the anomalous case of supplying defects in a solemn written certificate which purports, and is presumed to contain all of the facts which occurred at the time, to be overthrown by the frail memory of witnesses, and this too, at any period of time, however remote. Again, if such evidence might be received to supply defects, we should, for the same reason, be compelled to permit the officer or other person to contradict the acknowledgment by the same kind of evidence, and thus defeat a title acquired in good faith, and conforming to all the requirements of the law. This would, in effect, repeal the law requiring married women to acknowledge deeds of conveyance, and to have the certificate endorsed on the deed.

As to the third question, whether the act of 1839 presents a bar to a recovery in this case, it is a complete answer to say that appellee was a feme covert when the deed was executed, and the grantees of appellant entered into possession, and when a portion of the taxes were paid. She was, therefore, .manifestly within the saving of the third section of that act. It declares that it shall not apply to titles held by femes covert, provided they shall commence an action for the recovery of such premises within three years after the disability shall cease to exist. Three years have not elapsed since her husband’s death, so that the act cannot he invoked to bar a recovery. Should possession and payment of taxes concur for the period of limitation, under claim and color of title, on land claimed and held by a married woman, since the act of 1861, which enables her to sue in her own right, then a different question might be presented. But in this case, there were not seven years after the adoption of that act. We therefore deem it unnecessary to discuss the question or to express any opinion as to what would be the result.

The judgment of the court below must be affirmed.

Judgment affirmed.