Lessee of Watson v. Bailey

Yeates J.

This is an appeal from the decision of the circuit court of Lancaster county, overruling a motion for a new trial.

The facts of the case are shortlythese. Sarah, oneof thelessors of the plaintiff, claimed as the sister and heir at law of Margaret Mercer, who died without having had issue by her husband fames Mercer. Mrs. Mercer was seised of the lands in her own right. On the 30th May 1785, fames Mercer and Margaret his wife executed a conveyance of the premises to Nathan Thompson in fee simplej in consideration of eight hundred pounds, and on the same clay as is indorsed on the deed they appeared before Henry Slaymaker, one of the justices of the court of common pleas for Lancaster county, and “ acknow- “ ledged the within written indenture to be their act and deed, tc and desired that as such the ^ame might be recorded; she the “ said Margaret being of full age and by the said justice ex-*c amined apart. This the justice certified under his hand and “ seal.”

If this conveyance devested the said Margaret Mercer of her legal title to the lands, the plaintiff was not entitled to recover them, and the defendants would be entitled to a new trial. The validity of the conveyance, it is agreed, depends upon the true construction of the act of assembly,passed on the ZéthFebruary 1770, entitled “ an act for the better confirmation of the estates “ of persons holding or claiming under femes covert, and for “ establishing a mode by which husband and wife may hereaf- “ ter convey their estates.” 1 St. Laws 535.

The preamble of the act recites that “ it had been theretofore “ the custom and usage ever since the settlement of this pn> “ vince in transferring the estates of femes covert, in many “ cases, for the husband and wife to execute the deed or con- “ veyance in the presence of witnesses only; and in other cases* “ after such execution to acknowledge the same, the said wife “ being separate and apart from her husband examined; by •“ means whereof a very great number of bona fide purchasers' “ for a valuable consideration had become the just and equita- “ ble owners and possessors of such estates.” It then goes on to provide that such grants, deeds, &c. theretofore bona fide made and executed by husband and wife in manner aforesaid, shall be good and valid in law.

There can be no doubt that the decisions in this court, in the Lessee of Davy and wifev. Turner in September term 1764, where there was an acknowledgment by baron and feme, and which was carried by appeal to the king in council, (1 Dall. 11.) and in Lloyd's Lessee v. Taylor, in April 1768, where there was no acknowledgment (1 Dall. 17.), gave birth to this law. These decisions were founded on a principle highly conducive to the peace of society, that communis error facit jus.

The law, having in the first section put such bona fide purchasers in a state of perfect security, proceeds to establish a rule for future cases. It declares that “ where any husband and wife shall thereafter incline to dispose of and convey the ex-tale of the wife or her right of in or to any lauds, tenements “ or hereditaments whatsoever,” it shall and may be lawful for the husband and wife to execute any grant &c., and to acknowledge the same in the mode pointed out by the act, which is thereby declared to be good and valid in law to all intents and purposes, as if the said wife had been sole and not covert.

It has been contended that the acknowledgment, herein directed, extends to such deeds wherein the wife joins the husband to bar her of dowcjr, equally with those which she before held in her own right; and that a practice, founded on the former loose mode of taking acknowledgments, has been continued; which it would be highly mischievous and inconvenient now to impeach; and that common usage has expounded the act.

If the first remark rested on solid grounds, I should long pause, before I adopted a construction which eventually might unsettle many estates. The maxim of “ communis error facit “ jus” has great weight with me, where the most injurious consequences would flow from counteracting it. I admit that the words standing by themselves might, from their generality, be supposed to comprehend cases wherein the wife releases her contingent interest of dower; but the whole section must be read together, in order to collect the true meaning of the legislature. They distinctly express their intention, and the object of their provision, in the beginning of the sentence thus: “ And in u order to establish a mode by which husband and wife may “ hereafter convey the estate of the wife, be it enacted &c.” The words therefore “ such deedf which are twice mentioned in the subsequent part of the section, evidently refer to deeds, whereby the estate of the wife is conveyed, and no qther. This law had two distinct objects in view: the quieting and securing the titles of purchasers of the lands of married women, under the ancient usage, and prescribing a new method of conveying them, instead of the tedious and expensive ceremony of fines at common law; and both the title and preamble of the act strongly negative the construction set up by the defendants’ counsel. I. cannot therefore bring myself to believe, that the law under consideration had any effect on the acknowledgments pointed out by the act of 1715. 1 St. Laws 109. “ No doubts had arisen whether deeds so acknowledged were not sufficiently “ valid in law to transfer and pass the possiblé interest of the “ wife,” in case she survived her husband, to lands held by him during the intermarriage. The act of 18th March 1775, 1 St. Laws 703. entitled “ a supplement to the act entitled an act u for acknowledging and recording of deeds,” also points out acknowledgments, without prescribing their form. I presume it will not be contended, that the words of the act of 1770, as to acknowledgments, are adopted by this latter act. Thinking then, as I do, that this law of 24th February 1770 is susceptible of no other construction than that which I have mentioned, if I am correct therein, the mischievous consequences, which it is apprehended ma}? flow from the usual mode of taking acknowledgments, cannot arise. It is by no means a very general practice for married women to transfer the lands which they hold in their own right; and the acknowledgments of such conveyances have in general been correct.

I do not take a literal strict adherence to the very words of the act, to be essentially necessary in these cases; but the substantial requisites, by which the rights of married women were intended to be guarded by the legislature, should be pursued. Lord Hardwicke has somewhere said, that the wife may be intimidated by cruelty on the part of the husband, as well as seduced by his flattery and extreme kindness, to do acts, which, on more mature deliberation, she would totally disapprove of. In this acknowledgment, her consent to the deed is not expressed by the justice, which alone could give it validity, without adverting to smaller matters. We may regret that the unskilfulness or negligence of the scrivener has led to this error; but we are bound to say, it a lex scripta est; and the party must abide by the consequences of his own acts.

It has been contended that we should give credit to a certificate of a judge of the common pleas, in the execution of his powers; and he having certified here that he had taken the acknowledgment, omnia prcesumuntur esse rite acta: and that parol testimony was offered to the circuit court of the declarations of Mrs. Mercer, at other times, of her perfect freedom of will in executing the conveyance; and that she would join in any other act in confirmation of her deed. This, it is said, comes in aid of the legal presumption, and removes every presumption to the contrary. To this I answer, she should have appeared before a proper tribunal, and< declared her consent separate and apart from her husband, in the manner pointed out 'fay the laws of the country. Such parol testimony ought not to be received. It leads to great uncertainty and mischiefs in tracing titles to real estates at a distant day. Our law is a system of policy. It is adapted to our local situation and the common safety. In England, the rights of a married woman to lands, can only be passed by the medium of a fine. Her examination must ever appear on the writ; and if the judge doubts of her age, he may examine her upon oath. 2 Inst. 515. These regulations guai'd the interests of the wife, as far as human prudence can effect that object. The act of 1715 directs that the justice shall certify the acknowledgment or proof on the back of the deed, under his hand and seal, together with the day and year when the sanie was made. The act of 24th February 1770 evidently points to the same mode of certificate; and an important trust is confided to the judge or justice before whom the acknowledgment is made. The justice of the court of common pleas has not conformed himself to the directions of the law “ establish- “ ing a mode by which husband and wife may convey the es- “ tate of the wife,” but has materially and substantially failed therein. The provision was introduced as a substitute for a fine, which if not pursued, the deed was not validated by the-act.

In the present instance, the intention evidently was to devest the wife of her legal right in the lands, and vest it in the husband; and if, in any case, a court of justice would insist on at least a substantial adherence to the manner of acknowledgment prescribed by the law, it would be in such a one as is now before us. The conveyance from Mercer and wife to Thompson, and the reconveyance of Thompson to Mercer, bear equal dates, and are acknowledged on the same day before the same justice, and contain the same consideration money of eight hundred pounds.

I am therefore of opinion that this deed had no legal effect against the heir at law, after the death of the wife; that the parol testimony was inadmissible in aid of the defective acknowledgment; and that the decision of the circuit court be affirmed.

Smith J. concurred. Br.ackenr.idge J. took no part in the cause, having on the circuit ruled the point differently from the chief justice.

Judgment affirmed.