Thomas v. Meier , 18 Mo. 573 ( 1853 )

GAMBLE, Judge,

delivered the opinion of the court.

The act concerning dower, in the revised code of 1825, provides that “every widow of every person who shall hereafter die, shall be endowed in the real estate lyiDg and being in this state, whereof her husband or any other person to his use was seized of an estate of inheritance, in law or equity, during the coverture, to which she shall not have relinquished her right of dower by deed, duly executed and. acknowledged in the manner which is or may be prescribed by law.” The acts upon the same subject in the codes of 1835 and 1845, use this language : “Every widow shall be endowed of the third part of all the lands, whereof the husband or any other person to his use was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower in the manner prescribed by law, to hold and enjoy during her natural life.”

The conveyance from the plaintiff and her husband, on which this controversy arises, was executed and acknowledged in December, 1830. The act concerning conveyances, in the code of 1825, in the 11th section, provides : “ that it shall and may be lawful for any married woman to release her right of dower in any lands and tenements whereof her husband may be seized by any legal or equitable title during coverture, by joining such husband in the deed or conveyance, for the conveyance of such lands and tenements, and appearing and acknowledging the same before,” &c. The court or officer being satisfied of the identity of the woman, is required “to acquaint such woman with the contents of the deed or conveyance, and shall examine ber separate and apart from ber husband, whether she executed the same and relinquishes her dower to the lands and tenements therein mentioned, voluntarily, freely and without compulsion or undue influence of her said husband ; and if she acknowledges that she executed the same and relinquishes her dower in the lands, &c., therein mentioned, voluntarily and freely, without compulsion or undue influence of her husband, such court or officer shall grant a certificate, to be endorsed or annexed to such deed, stating that such woman is personally known, &c., and that she was made acquainted with the contents of the deed, and was examined, and acknowledged such deed as aforesaid.” The certificate of acknowledgment on the deed, in the present case, states that Thomas and his wife (the present plaintiff) were well known to the officer, &c., and acknowledged the instrument to be their act, and each of their, ■acts and deed, hands and seals, for the purposes therein mentioned ; “ and the said Margaret Thomas being by me examined separately and apart from her said husband, whether she executed the said deed freely and voluntarily, and without compulsion or undue influence of her said husband, acknowledged and declared that she is well acquainted with the contents of said deed, and that she executed the same freely, and voluntarily, and without the compulsion or undue influence of her said husband.”

1. Two objections are taken to this acknowledgment: 1. That it does not appear that the officer acquainted the woman (the plaintiff) with the contents of the deed. 2. That the certificate does not show that she relinquished her dower in the premises. The first objection will not be considered in this case, but will be dismissed with the remark that, when a married woman, on examination apart from her husband, declares that she is well acquainted with the contents of the deed, the case ought to bo considered as entirely unlike one in which the certificate is silent about her acquaintance with the contents of the deed. The certificate should receive the most liberal construction in favor of supporting the conveyance.

2. Tbe second objection is one which, in my judgment, is well taken. The act requires that, upon the privy examination, the officer taking the acknowledgment shall examine her “whether she executed the deed and relinquishes her dower freely,” &c., and next it provides that if she acknowleges that she executed the same and relinquishes her dower in the lands, &c., the court or officer shall grant a certificate stating that the woman was examined and acknowledged such deed as aforesaid

The certificate is to contain the examination and acknowledgment required in the previous part of the section. The examination embraces the points of her execution of the deed, which is a past fact, and whether she relinquishes her dower, which is then about to take place. This is the examination to be stated. The acknowledgment is to be made by the woman on the points upon which she has been examined. If she acknowledges that she executed the deed and relinquishes her dower freely, &c., the certificate is to be given, which is to state the acknowledgment aforesaid. It seems very plainly to be the meaning of the act, that the examination and the acknowledgment both comprehend the question, whether she relinquishes her dower ; and that the certificate which is to state the examination and acknowledgment as aforesaid, should state that she was examined as to the question whether she relinquishes her dower, and that she acknowledges that she relinquishes her dower. In an opinion which I prepared in the case of Chau-vin v. Wagner, this question was examined and as fully discussed as was thought necessary, as an illustration of the point involved in that case. In my opinion, the judgment of the Circuit Court should be affirmed.