Heaton v. Fryberger , 38 Iowa 185 ( 1874 )

Day, J.

— The defendant testified that Eebecca Heaton was his sister; that he purchased the land in controversy in 1844 or 1845, and paid therefor $100; that His father gave said land to Eebecca prior to his purchase thereof, and that the understanding was that he was to make them a deed; that the understanding was that he was to have the whole land, and a good title and warranty deed, and he'always supposed he had such a deed until September, 1869, and that he knew of no reason why it was not such, unless it was by mistake made in the form in which it was executed; that he went into possession in 1845, and has paid the taxes ever since; that he had ten acres broken on said tract in 1845 or 1846, and had twenty-five acres more broken and fenced in 1855 or 1856; and that he has had crops off the land regularly every year since 1856; that plaintiffs’ parents had full knowledge of his occupancy thereof, and his claim thereto, and they never asserted any claim to the ownership thereof.

The conveyance under winch defendant claims is in the usual form of a warranty deed, and begins as follows: “This indenture, made this 17th day of April, in the year 1845, between Silas H. Heaton, of the county of Muscatine and Iowa Territory, of the first part, and Moses Eryberger, of the county of Muscatine, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one hundred dollars,” &c. This deed is signed by Silas and Eebecca Heaton. The acknowledgment is in the following form:.

“Territory or Iowa, ) Muscatine County, j ' I, David Odell, justice of the peace within and for said county, do hereby certify that this day appeared before me Silas Heaton and Rebecca Heaton, to me known to be the persons whose names are subscribed to the' foregoing instrument as parties thereto, and acknowledged the execution thereof to be their act and deed. And the said Rebecca Heaton, wife of Silas Heaton, on examination separate and apart from her said husband, acknowledged that she executed the same, and relinquished her dower in the real estate mentioned, freely and without compulsion, or undue influence of her said husband.

Given under my hand,” &c.

l. convey-acquired title, It is not shown that, at the time of making this conveyance, the grantors had taken possession of the premises, or made any improvements thereon. So far as appears from the evidence, a mere verbal gift of the lands had been made to Rebecca Heaton by her father, Peter Fryberger. Rebecca therefore had no title to nor interest in the lands which she could have enforced against her father, if he had refused to execute a conveyance to her. Hence if the deed to defendant can have any operation as' against Rebecca, it must be by way of estoppel, under the provisions of section 3, chapter 34, of the Revised Statutes of 1843, then in force, providing that “if any person shall convey any real estate by a conveyance purporting to convey the same in fee simple absolute, and shall not at the time of such conveyance have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal estate had been in the grantor at the time of the conveyance.” But in order that a conveyance may so operate to pass an after-acquired title, it must,' we apprehend, be so executed that it would have passed the grantor’s estate at the time of execution, if he had then had the title.

The law in force at the time this deed was executed contains the following provisions respecting the conveyance by a married woman of her real estate: “A married woman may convey any of her real estate, by any conveyance thereof, executed by herself and husband, and acknowledged by such married woman, and certified in the manner hereinafter prescribed, by some court authorized by this act to take and certify such acknowledgment.”

“No such acknowledgment shall be taken unless such married woman shall be personally known to at least one judge of the court taking the same, to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such by at least one credible witness, nor unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge, on an examination apart from her husband, that she executed the same, freely, and without compulsion or undue influence of her husband.”

“The certificate of such acknowledgment shall set forth that such married woman was personally known to at least one judge of the court granting the same to be the person whose name is subscribed to such conveyance as a party thereto, or was proved to be such by at least one witness, (whose name shall be inserted in the certificate,) and that she was made aquainted with the contents of such conveyance, and acknowledged, on an examination apart from her husband, that she executed the same freely, and without compulsion or undue influence of her husband.” Eevised Statutes of 1843, Chap. 54, §§ 24, 27, and 28.

2. husband AND WIVE: conveyance by married woman. At common law, a wife could convey her real estate only by uniting with her husband' in levying a fine, which, being a solemn proceeding of record, the judges were r ° , 7 , , , supposed to watch over and protect her rights, , . . x . 0 7 and ascertain by a private examination that her participation was voluntary.

The mode prescribed in the statute above set out, and which is generally adopted in this country, of alienating the property of a feme covert by a deed acknowledged apart from her husband, is a substitute for the common law fine, and is an enlargement of the power of alienation. But, in order that lier deed may be operative to any extent, and for any purpose, it is necessary that it shall conform fully with the statute. Independent of the statute she has no power to convey.

From an examination of the deed in question, it appears that the name of Rebecca ITeaton nowhere appears in the body of the deed, although her name is signed to it; and further, that the acknowledgment omits to state that she was made acquainted with the contents of such conveycmce.

The courts have uniformly held that either of these defects renders the deed void, and incapable of enforcement against the wife. We have not been able to find a single case which admits of the correction of such defects in a court of equity.

I. In O'Ferrall v. Simplot, 4 G. Greene, 162; s c. 4 Iowa, 381, an acknowledgment with the above omission was held to be fatally defective.

In Silliman v. Cummins, 13 Ohio, 116, in which the acknowledgment failed to state that the defendant, a married woman, was made acquainted with the contents of the deed, the court employed the following language:

“ A married woman has no legal existence or power to transfer her interest in real estate except through the statutory channel. The mode of executing the conveyance confers upon her the power to convey. Where the power exists independent of its mode of execution, and has been defectively executed, it is not a case of want of power, but of defective execution, which a court of equity will aid. But where the power and mode of execution are inseparable, the power resulting from the mode, and that mode has not been pursued, it is not a case of defective execution, but a want of power which a court of equity cannot aid. Hence when a married woman attempts to convey, and lacks power from not pursuing the mode prescribed, courts of equity will not relieve, because to amend the mode is to create the power.” And in this case it was held that the deed did not pass the estate of the wife, and that a court of equity could grant no relief. In Grow v. Zumbro, 14 Grattan, 501, Mary Zumbro and John Zumbro, her husband, deeded the land to the defendant in 1833. In 1850, John Zumbro died. Afterward Mary brought her action in equity to recover the land. The cause was tried in 1856. The certificate of acknowledgment did not comply with the statute, in that it failed to state that she did not wish to retract it. The deed was held inoperative, and she was held entitled to recover the land.

To the same effectis Watson v. Bailey, 1 Binn. 470, in which it was held that the omission of the word voluntary in the acknowledgment of the wife, rendered the deed inoperative to pass the title to her lands, and that it is not admissible to prove her parol declaration that she executed the deed voluntarily, and if it was not sufficient, would execute and acknowledge it again, or do any act to make the deed good.

In Dewey v. Campau, 4 Michigan, 565, the court used this language: “ The deed of a feme covert conveying her interest in lands which she owns in fee, does not pass her interest by the force of its execution and delivery as in the common case of a deed by a person under no legal disability. But the law presumes that ■ a feme covert acts under the coercion of her husband, unless by a separate acknowledgment, out of the presence of her husband, before some officer duly authorized to take such acknowledgment. The deed of a feme covert, being void at common law, is a nullity unless acknowledged in strict compliance with the statute. The acknowledgment as to her is a part of the deed.” To the same effect is Pratt v. Battels, 28 Vt. 685. Russell v. Rumsey, 35 Illinois, 362, was an action for the recovery of dower. The deed was both executed and acknowledged by the wife, but the certificate of acknowledgment failed to state that the wife relinquished her dower in the premises. In holding that her dower was not barred, the court employed the following language:

“It is urged that a widow claiming dower under such circumstances acts in bad faith. This may be true, but the law is not designed to regulate morals of indivduals who violate no law. Also, that she knew when she executed the deed that the purchaser expected to obtain a release of her dower, and that she must have designed to bar it by her act. The same might be said with equal truth, if she had only signed the deed and acknowledged it in the presence of a subscribing witness; and yet it would not be contended that her dower would thereby have been released. Nor could witnesses be called to prove the fact. The statute has, in lieu of the more solemn mode of barring dower by fine or recovery, adopted the examination and certificate of the officer. When this change was made, it can hardly be supposed that any requirement imposed, would be regarded as merely formal and directory. In so great and important a change in the mode of barring dower, it would of course lead to the adoption of acts deemed sufficient, but to no more than was deemed essential. The wife is unable to bar her right of dower except by conforming to the requirements of the statute. Nor has equity jurisdiction to specifically execute the contract, of a feme covert, whether for the relinquishment of her dower, or the conveyance of her real estate. If there has been a mistáke by the officer, or the feme covert has acted in bad faith, it is the misfortune of the grantee to have received a deed inoperative to pass the dower. He is presumed to know the law, and when he received such a deed, it may as readily be inferred that it was with his assent, as that the wife designed to perpetrate a fraud. On the production of the officer’s certificate, the presumption will be indulged that it contains a statement of all the acts that were done, and that none were omitted. It is for the grantee to be satisfied that the deed is properly acknowledged. If he neglects this duty, it is his fault as well as his misfortune.”

In Martin v. Dwelly, 6 Wendell, page 9, the acknowledgment of the wife to a conveyance was ’ defective. In this case Mr. Senator Beardsley said: uIt is not pretended that the present conveyance is of any effect except as evidence of an agreement that a court of equity will enforce; and in this respect it is nugatory, because the law adjudges it to have been made at the instance of the husband. If chancery will enforce such an agreement, I can imagine no barrier that can be erected against the encroachments of the husband, or for the protection of the wife. It fritters away the statute and makes it a dead letter.” See also Lane v. Dolick, 6 McLean., 200.

We are aware that an act of the Seventh General Assembly, •which took effect July 1858, purports to render valid all acknowledgements taken’ prior to that time, notwithstanding the provisions of the.law in force at the time they were taken. Eevision, § 2249.

However effectual this statute may be in its application to deeds which are operative as conveyances without acknowledgments, the acknowledgment being necessary only to admit the conveyance to record, and to constitute constructive notice of its execution, it can not render a deed valid, which was executed in such manner as to be void. This is clear upon principle, and it has been judicially determined.

In Good v. Zercher, 12 Ohio, 364, respecting this question the court held as follows: “ Under our constitution the legislature has not power to enact laws that shall pass the land of a married woman by an instrument not binding upon her at the time of its execution. The act passed March 9th 1835 to render valid acknowledgments certified prior to that time, which omit to state that the deed was read, or contents made known to the wife, is unconstitutional, inoperative and void as to deeds executed by married women under the act of 1820, requiring such deed to be read or contents made known.” The same point was ruled in Russell v. Rumsey, 35 Illinois, 362. The reasoning of these courts is equally applicable to our constitution.

2. The omission of the name of the wife in the body of the deed is equally fatal to it as a conveyance of her estate.

In Sharp v. Bailey, 14 Iowa, 387, it was held that a deed executed substantially in the form of the one under consideration, was ineffectual as a conveyance of the homestead, and the court said: “If the. subject of the conveyance was her separate property, it seems to us that there could be no fair ground for claiming that she had parted ■with it by such a deed.”

In Davis v. Bartholomew, 3 Ind., 485, the deed was as follows: “This indenture made the 3d of November, 1829, between Jeremiah Bartholomew and James Davis, of the first part,” etc., * * * * *. And the said Bartholomew and Davis and their wives do, for their heirs, covenant, grant, and agree to and with the said Canada Eink, etc., that they, the said party of the first part, are lawfully seized,” etc., * * *.

“ In witness whereof the said Bartholomew and Davis, and their wives have hereunto set their hands and seals, the day and year above written.” Signed

“ Jeremiah Bartholomew, Rebecca Bartholomew.

James Davis, Marx Davis.”

The certificate of acknowledgment recited that the said Rebecca and Mary declared that they signed said deed without compulsion, and that they relinquished all their right and claim to dower. ' It was held that Mary Davis had not conveyed her dower, and that she was entitled to have it assigned to her. After determining that her name did not appear in the granting clause,’ and that it was used only in connection with the covenants in the deed, the court employed this language:

“ The effect of this deed, therefore, is the same as if the complainant had not been mentioned at all in the body of it. Her signature and seal are to the deed, but they are not sufficient of themselves to bar her claim. Cox et al. v. Wells, 7 Blackford, 410. Nor is the complainant barred of her dower by the circumstance that the justice’s certificate states that she acknowledged before him that she had voluntarily relinquished her right of dower. The deed itself must contain the words necessary to constitute a conveyance or release, or the claim of dower is not barred.” Citing 4 Kent’s Commentaries, 59. In Carr v. Williams, 10 Ohio, 305, it was held that a deed in the body of which the names of the grantors were not inserted, the blanks in the printed form not being filled, could not in equity be corrected against the wife.

In McFarland v. Febiger's heirs, 7 Ohio, 194, a deed as follows: “ This indenture between S. McFarland and Catharine McFarland, his wife of the first part, and the Bank of the United States of the second part, witnesseth, that S. McFarland for and in consideration,” etc., “hath sold,” etc., running all through the operative parts as the single acts of S. McFarland, and concluding thus: “ In witness whereof said Stephen and Catharine have hereunto set their hands and seals,” signed and duly acknowledged by both, was held inoperative'as to the wife.

In Cincinnati v. Newell's heirs, 7 Ohio State, 37, it was held that, where the wife is owner in her own right of a portion of the premises conveyed, and joins her husband only in the testatum clause and in the execution of the deed, the husband’s title alone passes.

In Bruce v. Wood, 1 Metcalf, 542, it was held that, where a husband by a deed in his own name only, conveys his wife’s land in fee, and she merely affixes her signature and seal to the deed in token of her relinquishment of all her right in the bargained premises, her right in fee is not thereby conveyed, and after the decease of her husband, she may maintain a writ of entry, on her own seizin, to recover the land.

In Callin v. Ware, 9 Mass. 218, where to a conveyance of land by a husband the wife affixed her signature and seal, her name not being otherwise mentioned in the deed, it was held that she had not thereby barred her right of dower. In Foster v. Dennison, 9 Ohio, 121, it was held that a deed by a husband and wife, in which the wife is named only in the clauses relinquishing dower, though duly executed and acknowledged, operates only upon her dower, and will not pass any separate interest she may have in the estate. See also Payne v. Parker, Fairfield, 178. In Purcell v. Goshorn, 17 Ohio, 105, it was held that a feme covert, owner of the land in fee, does not pass her title by a deed executed by husband and wife, and that, though it was the intention of husband and wife to execute a deed conveying the fee, a court of equity will not, as against the wife correct the mistake in the instrument of conveyance, and compel the execution of a perfect deed. See also Grapengether v. Fejervary, 9 Iowa, 163-173.

¥e have found no adjudication in conflict with the general effect of these decisions.

They settle, so far as any question can be settled by precedent, both that the omission of the wife’s name in the body of a deed, is fatal to it as a conveyance of her- estate, and that equity will not correct the instrument, nor grant any relief, as against her.

6__stat_ ute of 1858. In 1858, the following statute was enacted: “That the several courts of chancery in this State shall be authorized and empowered to correct, amend, and relieve against any errors, mistakes, or defects accruing in the deed or other conveyanee of any husband and -wife, hereafter to be executed, and intended to convey or encumber the lands or estate of the wife or her right of dower in the lands of her husband, in the same manner and to the same extent as the said courts are or shall be authorized or empowered to correct errors, mistakes, or defects in the deeds or conveyances of any person.” Revision, § 2257.

This statute recognizes the existence, in this State, of the common law rule respecting the deed of a married woman, and expressly limits the power therein conferred to correct her conveyances, to those executed after its enactment.

The deed being insufficient to pass the estate of Rebecca Heaton, the lack of power to correct her conveyance must be conclusive against appellant, unless the plaintiff’s cause of action is barred by the statute of limitations.

7. statute of LI-VIITATIONS • non-resident, II. It appears from the evidence -that the defendant has always been a non-resident of the State. Section 2745 of the Revision of 1860, 1664 of the Code of 1851, is as ' J follows:'“ The time during which a defendant is a non-resident of the State shall not be included in computing any of the periods of limitation above described.”

This statute seems so plain as not to require the aid of judicial construction.

We are referred, however, to section 3569 of the Revision!, providing that an action for the recovery of real property “ may be brought against any person acting as owner, landlord, or tenant of the property claimed.” And it is urged that, as the defendant has always had a tenant in possession of the property, against whom an action might have been brought, the cause of action of plaintiffs is barred, notwithstanding the non-residence of defendant..

There are several objections to this view.

First: The language of the statute is general, applying alike •to any case of non-residence. A case like the present is one likely to occur very frequently; and if the legislature had intended that it should form an exception to section 3569, we are unable to see why they did not so' expressly declare.

Second: The statute of limitations in force at the time this statute was enacted, chapter 94, Eevised Statutes of 1843, section 8, excepts real and possessory actions from the provision that the statute shall not run during the time the defendant shall be out of the Territory. The failure to incorporate this provision into the subsequent statute is evidence of an intention that the subsequent legislation should have a different effect, and receive a different construction.

Third: In an action for the recovery of real property, the plaintiff may recover the damages occasioned by the detention. It is evident that in many cases full damages could not be recovered of the tenant, and that the plaintiff could obtain adequate relief only in an action against the person claiming the adverse title. Hence, although an action might be brought against the tenant, the plaintiff should not be compelled to do so in case the real defendant is a non-resident.

In Wilson v. Appleton, 17 Mass, 179, which was an action of assumpsit, the defendant pleaded the statute of limitations. The plaintiff replied that, at the time the cause of action accrued, he was, and ever since had been, beyond sea. The defendant rejoined that within six years after making the supposed promises, and ever since, the plaintiff had an agent within the - commonwealth, authorized to demand and receive his supposed debt. To this rejoinder the plaintiff demurred. The court said: “As to the fact averred in the rejoinder, that the plaintiff had an agent in the commonwealth during his absence, this might be a reasonable exception to the saving, if the legislature had seen fit to introduce it. But such a case not being provided for, it is not for the court to legislate on the subject.” See Angel on Limitations, §§ 204, 205 and 207. We are clearly of opinion that the defendants’ continued non-residence prevents the operation of the statute in his favor. It follows that the judgment of the court below must be

Affirmed.