Card v. Patterson , 5 Ohio St. 319 ( 1855 )

J. R. Swan, J.

1. Patterson claims that he was a bona fide purchaser from Beardsley. Card claims that Beardsley was a mere tool in the hands of Patterson, and that the latter in fact purchased the lands from Edlebute and wife through Beardsley. We have carefully examined the voluminous testimony upon this question, and have come to the conclusion that Beardsley does not occupy the relation to Patterson claimed by the complainants. The consequence is, that Patterson takes the title from Beardsley, with all the incidents which protected Beardsley as a bona fide purchaser, without notice of the equities claimed by the complainants.

2. The officer taking the acknowledgment of the deed made by Edlebute and wife, omits to state that he read or otherwise made known to her the contents of the deed, and this, among others, is claimed to be a fatal defect. The statute of 1818, and the statute of 1831, are similar in their provisions. Both re quired the officer to read or otherwise make known to the wife the contents of the deed; but neither required the officer to certify that he had done so. Chesnut v. Shane’s Lessee, 16 Ohio Rep. 599; Ruffner v. McLenan et al., 16 Ohio Rep. 639, and cases there cited and decided. The statute of 1831, simply requires the officer to certify the examination and declaration of the wife.

3. It is objected that a separate examination and declaration of the wife is not certified in the acknowledgment under consideration.

The acknowledgment certifies that “ the said Maria, being by me examined, separate from her husband, declared that she signed the same of her own free will and accord.”

This deed was acknowledged under the act of 1831.

Under the act of 1818, the statute required the officer to certify that the wife “ declared that she voluntarily and of her own free will and accord, without any fear or coercion of her husband,” acknowledged the signing and sealing of the instrument. Per Hitchcock, J., 16 Ohio Rep. 647, 648.

The statute of 1818 is in these words: “ If upon such examination, she shall declare that she voluntarily and of her own free will and accord, without any fear or coercion of her husband, did and now doth acknowledge the signing and sealing thereof, the said judge or justice shall certify the same, together with the acknowledgment of the husband on the same sheet.”

In the case of Vattier v. Chesseldine, 16 Ohio Rep. 661, it was held, that a certificate in the following words was sufficient, in substance, under the act of 1818 :

“ Came personally, etc., Charles Yattier and Parmelia Yattier, who separate and apart, acknowledged the foregoing instrument to be their voluntary act.” The court say that “ this certificate shows satisfactorily that the wife was examined separate and apart from her husband.” “ We are further satisfied from the certificate that the complainant did acknowledge the deed to be her voluntary act; and if voluntary, then there was no compulsion, no coercion.”

The statute of 1831 provides: “ If upon such separate examination, she shall declare that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith, such officer shall certify such examination and declaration of the wife, together with the acknowledgment as aforesaid, on such deed,” etc. In the certificate attached to the deed of Edlebute and wife, the fact that the examination of the wife was made separate and apart from the husband is distinctly stated, and the certified declaration of the wife, which, under the act of 1818 and 1831, constitutes the wife’s separate acknowledgment, is more formal and full than in the Yattier case above cited. The last words of the above recited clause of the act of 1818, “ together with the acknowledgment of the husband on the same sheet,” and the last clause of the act of 1831, above recited, “ together with the acknowledgment as aforesaid, on such deed,” both refer to the acknowledgment of the husband required by the preceding parts of both the sections.

We are of the opinion that the certificate in question, under the adjudications of this court, substantially complies with the requirements of the statute of 1831.

4. The wife of Edlebute was, it seems, a minor when she executed the deed. This does not render the deed void, but voidable only.

Bill dismissed.