McMullen v. Eagan , 1882 W. Va. LEXIS 91 ( 1882 )

Green, Judge,

announced the opinion of the Court:

The first error assigned is, that on the bill of injunction and the answer of the defendant, David Eagan, the injunction should have been perpetuated, and the complainant should have been decreed the payment of the costs incurred by her, and that the allegations in the answer of David Eagan, on which he asked affirmative relief, were not such allegations, as could have sustained a cross-bill, and the court should have dismissed the same, so far as it sought affirmative relief. The injunction granted not only enjoined the sale already advertised hut also enjoined the trustee and the defendant, David Eagan, from again offering this house and lot for sale. This injunction could have been properly perpetuated, only in .case the deed of trust was fatally defective as a deed.

The defect claimed to exist in it was, that it was not properly acknowledged by the complainant, a married woman living with her husband. The Code of West Virginia chapter 73, § 4 and 6, provides in substance, that a deed signed by a married woman shall operate to convey from the wife her right of dower and all her interest of every nature in the land, -when it has been properly admitted to record both as to her and as to her husband and not till then; and that before it can be admitted to record, she must appear before a proper officer and having been examined by him privily and apart from her husband and having had the deed fully explained to her, she must acknowledge the same to be her act and declare, that she had willingly executed the same and does not wish to retract it, and all this must bo reduced to writing and put on record with the deed.

The language of this fourth section seems clearly to indicate, that the privy examination of the wife separate and apart from her husband and the full explanation of the deed to her, must precede the acknowledgment of the deed by her. Our courts have always required a substantial compliance with all the requisites of this law. The privy examination must take place. County v. Geiger, 1 Call. 193; Harvey v. Pecks, 1 Munf. 518. So the certificate must show,thatthe deed was fully explained to her. Harston v. Randolph, 12 Leigh 495. It must also show, that she declared, that she did not wish to retract it. Grove v. Zumbro, 14 Gratt. 501; Linn v. Paton, 10 W. Va. 198; Bartlet et al. v. Fleming et al., 3 W. Va. 163. So it must show, that she declared, that she had willingly executed the same. Bartlet et al. v. Fleming, 3 W. Va. 163; Leftwitch v. Neal, 7 W. Va. 569. These decisions as well as the authorities in other States establish the proposition, that the certificate must show that the statute-law has been in all respects substantially complied with. See authorities cited in Laughlin Bros. v. Freame et al. 14 W. Va. 335.

These decisions, in their spirit, seem to require us to declare null the deed of a married woman unless the certificate shows, that the acknowledgment of it was made after she had been examined privily and apart from her husband and had the deed fully explained to her. If she, as in the execution of the deed from Catharine McMullen to Swan, trustee, acknowledges the deed with her husband, though it be after-wards fully explained to her and she declares she had willingly executed the same and does not wish to retract it, still such deed must be held to be a nullity. We can not regard as unimportant the requirement of the statute, that the acknowledgment by a married woman of a deed should be made separate and apart from her husband, and after the deed has been fully explained to her. If the certificate as in this case shows, that the deed was acknowledged by the husband and wife together though it shows, that there was a subsequent privy examination and a compliance with every other requisite of the statute, yet, such certificate is fatally defective and the deed is void so far as it operates to convey any interest of the wife. These views are sustained by authority. See Allen and wife v. Shortridge, &c., 1 Duval (Ky. R.) p. 34, and D. D. Dewey et al. v. Joseph Campau, 4 Gibbs, (Mich. R) p. 565.

It follows from these principles, that the deed of trust executed by J. Ii. McMullen and Catharine McMullen, to T. B. Swan, trustee, dated October 29, 1872, was inoperative to convey the house and lot of Mrs. Catharine McMullen, as the certificate of her acknowledgment of it, on its face shows, that she acknowledged it for recordation in the presence of and jointly with her husband, instead of when she was separate and apart Rom him and after it had been fully explained to her as the statute-law requires. Eor the same reason, the deed from D. Eagan and his wife Mary E. Eagan, dated the same day, conveying this house and lot to Catharine McMullen, was inoperative to convey or bar the contingent dower interest of Mary E. Eagan in this house and lot. Nor was this defect caused by the officer, who took this acknowledgment, re-writing this certificate on the back of the deed, and dating this new certificate as of the date of the deed and writing it in the proper form showing, that the acknowledgment of it was not made by Mary E. Eagan in the presence of her husband. Eor it is not the fact that the privy examination and the acknowledgment by the wife of the deed, when separate and apart from her husband are alone sufficient to make the deed of a wife valid’ against her. A record of it must be made, and when made, like other records, it is a verity and cannot be corrected or changed afterwards by the officer. It has been held, that it can not afterwards be corrected and made good, if not originally recorded in a proper form by the formal judgment of a court, See Elliott et al v. Piersol et al., 1 Peters R. p. 329. Put the formal acknowledgment of this deed, in the proper manner, made by P. Eagan and Mary E., his wife, nearly three years afterwards, on January 11, 1876, before the clerk of the court for Kanawha comity, and his endorsement of this new acknowledgment in proper form on this deed cured this defect and made this deed valid against her; because it was equivalent to the re-execution of the deed, "or the making of a hew deed conveying this house and lot in the proper manner.

"We do not understand, that the law as we have stated it, has altered or affected our acts concerning married women. See chapter 66 of Code of West Virginia, p. 417. The third section of this act provides, that “no married woman unless she is living separate and apart from her husband, shall sell and convey her real estate, unless her husband joins in the déed or writing by which the same is sold or conveyed.” The apparent meaning of this is, that it was not intended by chapter 66 of the Code of West Virginia to make any change in the manner, in which the real estate of a married woman whether her separate estate or not, was to be conveyed.

It would be unreasonable to construe this section as authorizing a married woman to convey her separate real estate, simply by her husband joining with her in the deed without any privy examination of her, for we would then construe this section as taking away from married women a protection against the undue influence of husband, which had always been afforded her by outlaw and which protection the courts had steadily upheld in its full vigor. It cannot be supposed, that the Legislature intended to do this, as the very object of this chapter 66 of our Code p. 497, was to give to married women increased protection of their property against both the husband and his creditors; an effect, which to a large extent, would be defeated if we were to construe this third section as dispensing with the privy examination of the wife when she conveyed her real estate, if it was her separate property.

There is then, as we have construed this third section of chapter 66 of our Code p. 448, nothing in this act which would render valid this deed of trust executed by Catharine McMullen to Thos. B. Swan, trustee, but which was never properly acknowledged. The construction of this third section of chapter 66 of our Code, in this respect, has not been heretofore made by our Court. It was considered in the cáse of Radford v. Carwyle, 18 W. Va. p. 572, but the decisions of he true interpretation of this section in this respect, was'then waived by the Court, itliot being necessary to the decision of that case. The deed of trust executed by Catharine J. Mullen being in operation it is claimed, that the injunction should have been perpetuated and that she should have been decreed her costs. This would follow unless the answers which prayed affirmative relief can be regarded as a cross-bill. They are quite informal, but under our Code must be regarded ás the equivalent of a cross-bill provided, that the facts stated in them are such as would, before the passage of our Code, have been as a proper basis for a cross-bill.

Now a cross-bill is a mere auxiliary suit, a dependency of the original. It may be brought by the defendant against the plaintiff in the same suit or against other defendants or against both, but it must be touching the matters in question in the bill; as when a discovery is necessary or as when the original bill is brought for a specific performance of a contract, which the defendant at the same time insists ought to be delivered up and canceled; or when the matter of defense arises after the cause is at issue. See Cross v. De Valle, 1 Wallace 14; Gallatin v. Cunningham, 8 Cow. 361; Slason v. Wright, 14 Vt. 208; Rutland v. Paige et al., 24 Vt. 181; Andrews v. Kibbee, 12 Mich. 94; Draper v. Gordon, 4 Sandf. Ch. R. 225.

The question then is, was this cross demand in the answers in this ease, on which they asked affirmative relief, properly speaking, touching the matters in question in the bill ? Do these answers operating as a cross-bill under our statute introduce other matters distinct from those stated in the original bill, and on which it was based, or are these matters, on which this affirmative relief is asked confined to the matters involved in the original bill ? What is sought in these answers by way of affirmative relief, is the enforcement'by the court against the plaintiff, of her notes given for the purchase-money of the house and lot named in the bill, by reason of a vendor’s lien having been retained in the deed to her to secure the payment of these notes. Was this introducing new matters distinct from those stated in the bill and on which the bill itself was based ?

To determine this, we must examine the bill and determine about its full scope and object. Had it been simply an 'injunction suit either to prevent the sale of the complaint’s house and lot, under the deed of trust she had given, because it had been insufficiently acknowledged by the plaintiff, a married "woman, or because it had not been properly advertised, it would seem clear on the principles laid down and on these authorities, that the defendant, David Eagan, could not in a cross-bill or under our statute by his answer in the nature of a cross-bill, have asked the court to have this house and lot sold by its commissioner, because of a vendor’s lien he had retained on this properly. For in such case, it would have been introducing into the suit new and distinct matters not embraced in the original suit. But was this the full scope and object of the bill ? If this had been its sole object there was neither necessity nor propriety in alleging in it, that the vendor’s lien was retained in the deed to the plaintiff to-secure the same identical notes, which were secured by the deed of trust had it not been fatally defective.

The bill however refers to the deed conveying the said house and lot to the plaintiff, and states its contents and files a copy of this deed as a part of the bill, and it further says: “She refers the court to the fact, that the vendor’s lien was expressly reserved in said deed to secure the deferred installments of the purchase-money; and if said deed had been properly executed by the wife of David Eagan, the said vendor’s lien would be a valid lien for the purposes intended. But, notwithstanding the reservation of the vendor’s lien in said deed, the said David Eagan required your oratrix and her husband to give him a.deed of trust upon said property to secure the payment of said deferred installments, which were already intended to be secured by the reservation of the vendor’s lien in the deed delivered to her by David Eagan.”

The bill declares, that the wife of David Eagan did not properly acknowledge this deed, and that thus her title to this property was incomplete and imperfect as the wife of David Eagan had in it a contingent right of dower. G-eneral relief is asked in this bill, and under this prayer and the allegations in the bill, the court might in this cause have properly decided, whether this acknowledgment of the wife of David Eagan was binding on her, and whether theplain7 tiff’s title to this property was imperfect and to what extent imperfect. It was also claimed in this bill, that one of the four hundred dollars purchase-money notes had been paid off, but was still claimed to be due and this could also have been properly enquired into by the court, in this cause, and a credit directed to be given on these purchase-money notes for whatever have been paid, and also the proper abatement to be made from them for the contingent right of dower of the wife of David Eagan, if the court decided that she had such contingent right of dower in this house and lot. If we are right about the scope of this bill and the subjects of controversy involved in it, then it would follow, that an enquiry was involved in this suit as to the validity or the extent of the validity of this vendor’s lien named in the bill, and as to how much of the purchase-money secured by it could be enforced. Therefore, a cross bill asking the enforcement in full of this vendor’s lien was proper to be filed, as it did not introduce into the suit new and distinct matter, but only asked relief in reference to a matter stated in the bill, and which it was a part of the object of the bill to have enquired into by the court in this suit.

The next enquiry is, whether the decree of June 8, 1876,’ was or was not erroneous in adjudging, that there was due from the plaintiff Catharine McMullen to "W. B. Brooks, as assignee of David Eagan, the first note of four hundred dollars with interest from October 29, 1872, by the assignment of said note by David Eagan. This is contradicted in the special replication of the plaintiff to the answer of W. B. Brooks, and it is claimed that the pleadings show that, this note is paid. The deed to the plaintiff as well as the deed of trust from her, secures this note and it is set out in these deeds as an existing and unsatisfied debt. This acknowledgment of this debt throws on the plaintiff the burden of proving, that it has been paid, and not a particle of evidence was produced to show that it was paid; and its assignment to "W. B. Brooks for value, is admitted in the answer of David Eagan the payee in this note. It must therefore be regarded as due despite the bungling statement in the answer of David Eagan.

. The statement of the case showed, that what he really admitted in this answer to be paid, was only the two hundred dollar note due to the plaintiff sixty days after the sale, and that none of these lour hundred dollar notes had been paid. It is said that Wm. B. Brooks was no party to the cause. It is true he was not even named in the bill'but the answer of David Eagan states, that he was the owner of the four hundred dollar note, which the bill in a loose way said was paid; and of course the proper mode of making him a party, was after this answer was filed, to have required him to be made a party by an amendment of the bill. It is also true, that no one could properly be made a defendant to a cross-bill except persons, who were parties to the suit as plaintiffs or as defendants. “New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the objection of non-joinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill making new parties is not only improper and irregular, but wholly unnecessary.” See Shields et al. v. Borrow, 17 How. 145. This obviously proper course was not pursued in this case.

The answer of David Eagan sworn to showed, that W. B. Brooks was a necessary party to the cause; that he had not been made so by the bill, and without any amended bill being filed making him a party, he files his answer claiming to be the owner of one of the notes stated in the bill to have been paid, and denying that any part of it was paid. This was so irregular, that had it been objected to in the court below, a decree in favor of W. B. Brooks must have been reversed by this Court. But it was in no manner objected to, on the contrary the record shows what may be considered as implied assent by all parties to this irregular proceeding. The entry made on the record when this improper answer of W. B. Brooks was filed states, that the plaintifi by his counsel, was then present and that no objection was made to this answer and thereupon it was ordered to be filed and the plaintiff replied generally to it. She afterwards filed á special replication to this answer, but in no manner objected to the gross irregularity of any answer being filed by W. B. Brooks. lie was thus treated throughout in'tile court below as if the bill had stated, that he claimed to be the owner of the four hundred dollar note which the bill alleged was paid, and as if he had been made a defendant in the court below. This we think debars the plaintiff from alleging in this Court, that he was not a proper party to the suit; and so regarding him there is no error in1 the decree of sale of June 30, 1876.

The court in that decree properly regarded as curing all defects, the acknowledgment by the wife of David Eagan of the deed to the plaintiff made on the 11th day of January, 1875, before the clerk of the county court of Kanawha; his certificate made on said deed showing, thát it was again properly acknowledged by David Eagan, and further showing, that his wife personally appeared before said clerk, in his office, and was by him examined privily and apart from her husband; that the deed was fully explained to-her; that she acknowledged it to be her act and declared that she had willingly executed the same and did not wish to retract. This was equivalent to the execution of another deed by them and its due acknowledgment and recordation, and it cured all defects which existed in the original deed.

This decree concludes, that “commissioner Swan is not to execute this decree, until he has given bond before the clerk of this court in the penalty of one thousand dollars for the faithful performance of his duties as such commissioner according to law.” This was an unnecessary provision. The law only requires, that the commissioner should give bond with good security before the clerk of the court, faithfully to perform the duties of his' office, before-he collects any money under a decree of sale; and this should prdperly have beén the provision of his decree, as a commissioner of sale may properly make such sale without giving any bond, though he can not be authorized to collect and can not collect any portion of the purchase-money, without giving such bond. But, in this case no evil resulted from this improper requirement of the court, for it now appears by the record as amended by the agreement of parties, that this bond was given and acknowledged before the clerk by the parties and approved on August 29, 1876, which was prior to any sale of the property by the commissioner. The exception to one of the sales because this bond had not been given, had really no foundation in point of fact, on which to rest.

The court did not err in refusing to confirm the first report of sale, because it was utterly defective in showing how the sale had been made or when, or that the terms of sale had been complied with. The court it seems to me, ought not to have set aside the second sale because of the advanced bid of one hundred dollars, because it was an inadequate advanced to justify a re-sale, the price at which it had been sold being one thousand five hundred dollar’s, and because Daniel Eagan by an affidavit filed showed, that he could if the sale was confirmed, have released to the plaintiff all demands against her for the residue of his debt, beyond what he would have received from this one thousand five hundred dollar sale; and this would have been more beneficial to the plaintiff than a sale of the property at more than one thousand six hundred dollars.

The affidavits filed did not show, that one thousand five hundred dollars was such an inadequate price as justified the court in setting aside this sale. It is true, that five or six years before the plaintiff had bought this house and lot for three thousand four hundred dollars, that six witnesses made affidavit, that they were well acquainted with the house and lot and believed they were worth two thousand five hundred dollars. On the other hand three other witnesses, as well as David Eagan swear, that they know the property well and they believed one thousand five hundred dollars was its full value. One of these was a person; who wished to purchase but would not bid at the sale more than one thousand four hundred and five dollars, which he regarded as its full value. This together with the fact, that the commissioner of sale had made at different times, as his report shows, great efforts to sell this property at the highest price he could get, and had postponed the sale to different days to get a better bid if possible, and did not knock it down till lie bad thus offered it there several times, and that at last he gotno greater price offered at this second sale than he did at the first, ought to have prevented this sale from being set aside for inadequacy of price. Atthe thirdsale this property brought one thousand six hundred and forty-five dollars and the sale was properly confirmed by the court.

There was however a blunder on the face of the decree of December 20, 1875. The commissioner of sale reported, that the sale had been made to Mrs. E. V. Oakes for one thousand six hundred and forty-five dollars. But this decree says, “it appearing to the court by said report that W. J. Oakes was the purchaser at one thousand six hundred and forty-five dollars it was ordered, that the sheriff put him in possession of said property. This was apparently a clerical error, the name of W. J. Oakes being inserted in the decree as the purchaser named in the report of sale by the commissioner, when in fact Mrs. B. V. Oakes was the purchaser and had complied with the terms of sale. But this error should have been corrected by motion under the 5th section of chapter 135 óf Code of "West Virginia, p. 638. No such motion having been made, it constitutes no ground for reversing said decree, but we may correct said decree and affirm the same.

We will not make this correction in this Court, bécause though apparently it is a mere clerical error yet, it is possible that there is some agreement between the purchaser, Mrs. E. A. Oakes, and her security W. J. Oakes, whereby this property is to be conveyed to him instead of her, and he then substituted as purchaser. If this happens to be the case, there can be no objection to carrying it out by a proper decree of the court; but of course the decree on its face should show, that with the consent of E. A. Oakes, W. J. Oakes had been substituted in her place as the purchaser, and proper provisons should be made for enforcing the deferred payments of the parties for the land sold; and the commissioner should be required, before he collects the deferred payments of the purchase-money, to give a bond in a larger penalty than one thousand dollars.

The decrees appealed from should therefore be affirmed, and the appellant should pay to the appellees their costs in this Uourt expended and thirty dollars damages, and this qause should be remanded to the circuit court of Kanawha with instructions to correct the decree of December 20, 1875, so as to substitute in it the name of Mrs. E. V. Oakes, in lieu of W. J. Oakes, unless by her consent entered of record, he be substituted for her as the purchaser of said house and lot; and with further instructions to proceed with the case according, to the rules governing courts of equity and especially, that.the court require of the commissioner of sale, or of any other person, whom it may authorize to collect the deferred payments for the said house and lot, a bond in the penalty of one thousand.five hundred dollars to be given before the clerk of the circuit court of Kanawha, conditioned according to law.

Judges Johnson and Haymond Concurred.

Decrees Affirmed. Cause Remanded.