Robinson v. Noel ( 1873 )

PeytoN, C. J".,

delivered the opinion of the court:

The defendants in error, as heirs at law of Sarah E. Harvey, recovered, in an action of ejectment, certain lands, situated in Holmes county, in the circuit court of said county. Both parties claim title to the lands in controversy, through Sarah E. Harvey, deceased, wife of Jones Harvey, who, in conjunction with his said wife, made a deed of said lands to Micajah Frazier, who conveyed the same to the plaintiff in error.

It is insisted, on the part of the heirs of Mrs. Sarah E. Harvey, that the title never passed out of her by the deed made by her and husband to Micajah Frazier, for want of sufficient' acknowledgment of said deed by her. And this seems to be the main question in the cause presented by this record for consideration, and which we will now proceed to solve. The said acknowledgment is in the words following: “ Personally appeared before me, John C. Cutler, an acting justice of the peace, in and for the county aforesaid, Jones Harvey and Sarah E. Harvey, his wife, who acknowledged that they signed, sealed and delivered the foregoing deed as their act and deed ; and the said Sarah E. Harvey having been examined by me, separate and apart from her husband, acknowledged that she signed the following deed without fear, threats or- compulsion on the part of her said husband.”

Although the husband and wife may appear at the same time before the officer taking the acknowledgment, yet their acknowledgments must be separate and distinct. The mere statement in the certificate that Jones and his wife appeared and acknowledged that they signed, sealed.and delivered the deed, is nothing more, in legal effect, than the acknowledgment of the husband. To give it any other effect would be to make it a joint acknowledgment against the express provision of the statute, which prohibits it, by requiring that the wife, on a private examination, apart from her husband, shall acknowledge that she signed, sealed and delivered the deed as her voluntary act and deed, freely and without any fear, threats or compulsion of her husband. In order to guard against the influence of the husband, the law requires the acknowledgment of the wife to be separate, full and complete in itself, without reference to that of the husband. The statement in her acknowledgment that she “ signed ” the deed, cannot be so connected with the words “ sealed and delivered,” in the husband’s acknowledgment, as to make hers perfect, full and complete, as required by the statute. An acknowledgment of the wife, which is insufficient in itself, cannot be helped out and made valid by reference to that of her husband. It must stand or fall by itself.

NoTE.--My assent toa judgment of affirmance, is far the present withheld in this ease. Tuibell,

In the case under consideration, the wife acknowledged the signing of the deed only. This before the statute of frauds, was regarded as one of the least important requisites to a deed. Sealing and delivery have always been considered as essential to a deed. It takes effect only from delivery. If this view of the law be correct, it follows that the acknowledgment of Mrs. Sarah E. Harvey, was insufficient to pass the title out of her, to the lands in controversy, which descended upon her death to her heirs.

It is objected that the damages found by the jury, are excessive. The bill of exceptions shows that the plaintiffs proved the value of the rents of the land in controversy, whilst in possession of defendants, to be worth about $1000.00. It was the province of the jury to determine the amount of damages sustained by plaintiffs, upon the evidence in the cause, and we do not feel authorized to disturb their verdict in this respect.

The judgment is affirmed.