28 Ala. 332 | Ala. | 1856
Prior to the 7th February, 1844, Sarah M. McGrew, being the owner of the land now in controversy, married Robert E. Hazzard, and had by him one child. During the coverture, and on the day aforesaid, they executed a mortgage of the land, to secure the payment of certain notes made by him. The certificate of a notary-public, dated the 22d February, 1844, and written under the mortgage, shows that the acknowledgment made by her before him, on a private examination apart from her husband, was, “ that she signed, sealed, and delivered the above instrument of mortgage deed, on her own free will and accord, and without any force, persuasion, or threats from her said husband, and for the express purposes therein stated.”
Upon these facts it is clear, that the interest of Robert P, ■
The first question, of any. difficulty, to be considered, is, whether the estate of bis wife in the land did not pass by tbe mortgage.
By tbe law of this State, as it existed in 1844, a married woman under tbe age of twenty-one years was absolutely incapable of conveying lands, tenements, or hereditaments, lying and being in this State, or any right, interest, or estate therein; and a married woman over that age could not pass her estate in lands, tenements, or hereditaments, lying and being in this State, “ without a previous acknowledgment made by her on a private examination, apart from her husband”, before an officer authorized by law to take such acknowledgment, “ that she signed, sealed and delivered the same, as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof written on or under the said deed or conveyance, and signed by the officer before whom it was made.” — Clay’s Digest, 155, § 27.
Under this law, the mere execution by a married woman of a mortgage would not pass her estate in land. To give it any efficacy as a conveyance of her estate, it was essential not only that it should be executed by her, but that it should have been acknowledged and certified in the mode prescribed by the law, and that she should have been twenty-one years of age at the time of the execution and acknowledgment.
It does not appear that Mrs. Hazzard was twenty-one years of age when she executed and acknowledged the mortgage. But, even if that fact did appear, her acknowledgment on her private examination, as certified by the notary-public, is not, either in words or substancd, the acknowledgment prescribed by law. It was essential that she should acknowledge, amongst other things, that she executed the mortgage “ without any fear.” She has not acknowledged this, nor any thing in substance the same. It will not do to say she has acknowledged something like it. Resemblance is Hot identity. Fear may exist on the part of the wife, “ without any force, persuasion, or threats” from the husband. Her acknowledg
We cannot dispense with any requirement of the law (Bright v. Boyd, 1 Story’s Rep. 486; 1 Story’s Eq. §§ 97, 177); and as the acknowledgment under consideration is not such as was prescribed, the mortgage did not pass the estate of Mrs. Hazzard in the land. — Hollingsworth v. McDonald, 2 Harris & Johns. 230; Chauvin v. Wagner, 18 Missouri R. 531; Elliott v. Piersol, 1 Peters, 338; Gill v. Fauntleroy, 8 B. Monroe, 178; Jourdan v. Jourdan, 9 Serg. & Rawle, 274; Flanagan v. Young, 2 Har. & McH. 38; Martin v. Dwelly, 6 Wend. 9; Green v. Branton, 1 Dev. Eq. Rep. 500; Bright v. Boyd, 1 Story’s Rep. 487; 1 Story’s Eq. Jur. §§ 96, 177; Moreau v. Detchemendy, 18 Missouri Rep. 522; Warren v. Brown, 25 Miss. R. 66.
But it is contended, that, although the mortgage is wholly ineffectual to pass her estate, yet she was divested of it by the proceedings under the bill to foreclose the mortgage; and this position is now to be examined.
That bill alleges that 'the mortgage was executed by her
The proceeding for foreclosure was a proceeding not in rem, but in personam. It was essential to the validity of the decree therein rendered, as' to Mrs. Hazzard, that the court should have had jurisdiction of her person, as well as of the subject-matter. She was a resident married woman, without any separate estate. The fourth rule of our practice in chancery prescribed the mode in which the court might acquire jurisdiction of her person. The court did not acquire such jurisdiction in that mode, and there is nothing in the record which shows that the court ever did acquire such jurisdiction. In the absence of any compliance with our fourth rule of practice in chancery, in the absence of any plea, answer or demurrer on the part of her or her husband, in the absence of any order applied for or made that she might appear by solicitor, or that she might answer or defend separately, her appearance by solicitor, whether that solicitor was appointed by her husband or herself, would not give the court jurisdiction over her person. We do not decide that, after the jurisdiction of the court over the person of the viife has attached, the husband .cannot appoint a solicitor for himself and her. -But we do decide that, under the circumstances hereinabove stated, the court could not acquire jurisdiction over her person, merely from his appointment of a solicitor, and the appearance of that solicitor for her. There is no law or rule in this State which enables him, by any such voluntary act, to give the court jurisdiction over her person, or to bind her by a
We may concede, that where persons who are sui juris appear by solicitor, they give to the courts jurisdiction over their persons, by such appearance. — Catlin v. Gilder, 3 Ala. R. 536; Puckett v. Pope, 3 Ala. R. 552. But, in this respect,' there is an essential difference between a person sui juris and a person who is not in any respect sui juris.
By the law, as it existed at the time Robert E. Hazzard married Sarah M. McGrew, he gained by the marriage'a title to the rents and profits of her land, during the coverture. By the birth of issue, he became tenant by the curtesy initiate. But his right, as well as the right of those claiming under the mortgage executed by him, ceased and was defeated by the divorce a vinculo granted to her; and by that divorce, hex-right, which had been suspended during the coverture, -was restored to her precisely as it would have been restored to’ her by'his death. — Wheeler v. Hotchkiss, 10 Conn. Rep. 225; Barber v. Root, 10 Mass. Rep. 260; Renwick v. Renwick, 10 Paige, 420.
After this divorce, and in 1852, she married the appellant, and afterwards gave birth to a child. After this, and in 1853, and before this suit was commenced, she died, without having disposed of the land, leaving her husband, the appellant, living. If the- common law had remained unchanged, he would, upon the facts above stated, have been “ a complete tenant by the curtesy”, and entitled as such to hold and use the land during his life. — 2 Bla. Com. 126, 128; Preston on Estates, 516. But by the act of March 1, 1848, to secure to married women their separate estates, and the act of February 13, 1850, amending that act, the husband does not acquire any right to the property which his wife had upon his mai-riage or acquired afterwards, except' as provided for in said acts. The right of the appellant asserted in the present case, is to be determined by the provisions of the last-mentioned act, which was of force at the time of his mar
Note by Repobteb. — The foregoing opinion was delivered on the 15th January, and an application for a re-hearing was afterwards made by Messrs. D. 0. ANDEESON, Wm. Boyles, and Robt. H. Smith, of counsel for the appellee, who submitted the following argument in support of their petition :
In the opinion of the court, recently delivered, it is decided that the defendant has no title to the premises sued for, 1st, because the certificate of Mrs. Hazzard’s acknowledgment of the mortgage is not a sufficient compliance with the statute, and therefore did not divest her of title; 2dly, because it does not appear that Mrs. Hazzard, at the time of the conveyance, was twenty-one years of "age; and, 3dly, because the decree in chancery, foreclosing the mortgage, and divesting the title, of Mrs. Hazzard, is void as to her. The - counsel for the ap-pellee feel confident that, upon a re-examination of the points arising on the record, and of the authorities-referred to by the court, as well as of other analogous cases, a different conclusion will be arrived at; and they therefore respectfully ask a re-hearing.
1. As to the effect of the certificate of acknowledgment [for which see the preceding statement of facts.] Th« statute under which this acknowledgment was taken, is in these words : “No estate of a feme covert shall pass by her deed or conveyance, without a previous acknowledgment made by her, on a private examination apart from’ her husband, before one of the territorial judges”, &c., “ that she signed, sealed
' The wife’s voluntary consent to the conveyance is the main object required by the law; and her declaration to that effect, before the proper officer, and in the absence of her husband, is the proof of such consent. The accumulation of phrases, of equivalent or similar import, would add nothing to the real object of the law. If she executes the deed of her own free will and accord, and under neither the persuasion nor coercion of her husband, how is the proof of voluntariness ad
This very point has received an illustration by the supreme court of Ohio, in the case of Brown v. Farran, 3 Ohio, 153, to which the court is. referred. They say : — “ The third objection is, that it does not appear from the certificate that the wife acted without fear or coercion of her husband. It is true that those words are not contained, in the-certificate; but the justice certifies that she acknowledged the deed-to be her voluntary act; and if voluntary, it could not have been done under the influence of fear or coercion. The term ‘voluntary’ is defined to be, ‘acting without compulsion’, ‘ acting by choice’, ‘ willing’, ‘ of one’s own accord.’ The declaration of the wife, then, bn her separate examination, excludes the idea of fear or force. If she executed the instrument willingly, of choice, and of her own accord, as her admission before the justice imports, she could not have been under the influence of fear, much less o.f coercion. An action, done in consequence of fear, cannot be done willingly and of choice. The one unavoidably excludes the other. So that the magistrate, although he has not used all the words given in the statute, has taken one .which includes the substance of all the rest. It will not be seriously contended that the magistrate is bound to use thé same language that he finds in the statute. The legislature has not undertaken to prescribe a form of acknowledgment that is to be literally pursued. If the certificate contains the substance of the law, though in the language of the officer, it is sufficient. On any other principle, it is a matter of doubt whether the records of the State contain a solitary deed with a valid acknowledgment. It is, however, safe and prudent, to adopt the language of’the act, with but little (if any) variation; and yet it would, be attended with destructive consequences to consider -such an adherence as essential to the validity of an acknowledgment. If she understood what she was'doing, and, in the absence of her husband, admitted that she had done it, and that she did it voluntarily, which implies the absence of fear or coercion, her rights have had all the protection which the law intended
In the cases of Chesnut v. Shane’s Lessee, 16 Ohio, 599, and Ruffner v. McLenan, ib. 639, the subject of the acknowledgment of deeds by femes covert was very fully and ably considered; and in the latter, the case of Brown v. Barran was reviewed and approved. Indeed, the latter case, in sustaining the validity of such acknowledgments, goes greatly beyond the ground taken in Brown v. Barran. In allusion to the decision in Brown v. Barran, the following just and strong language, which has peculiar pertinence’ to this case, was there,.used : — “ Any other decision would have shaken the title to many millions of property, which had been acquired by the then present holders by fair and bona fide purchase. A contrary decision, it is true, might have enabled many widows to reclaim property, which had been, by their consent, sold and convéyed,for an ample consideration; or it might have enabled them to enforce claims for dower, to premises for the conveyance of which they had joined with their husbands, and done all that on their part could be done to make such conveyance effective. And if such conveyances are not held to be effective, it is for the sole reason that an officer, whose duty it was to take an acknowledgment of the conveyance, has omitted some technical formality in reducing the certificate of acknowledgment to writing. Another reason why I assented to the principle of this decision, and why I am still willing to adhere to those principles, is, that I am unwilling to adopt any rule of construction of a statute, or to recognize any principle of law, which will encourage any portion of the community, whether male or female, in fraud or dishonesty.”
The same point came up before the supreme court of New Jersey, in Den v. Geiger, 4 Halsted, 225, where it was determined, upon a very full examination and review' of the authorities, that a certificate of acknowledgment, which omits to state that the grantors executed the deed voluntarily, and that the acknowledgment of the wife was on a private examination, and without any fear, may be good, if it contain words equivalent to those omitted. The words of the New Jersey act, quoted on page 228, are precisely the same with
The very statute now under consideration has leen passed on by the supreme court of the United States, in the case of Dundas v. Hitchcock, 12 Howard, 269, where it is said, — “ It is objected, also, that this acknowledgment is not in the very words of the statute. In place of the words, ‘as her voluntary act and deed, freely', it substitutes - the words, ‘freely, and of her own accord.’ That the words of the acknowledgment have the same meaning, and are in substance the same with those used in the statute, it needs no argument to demonstrate; and that such an acknowledgment is a sufficient compliance with the statute to give validity to the deed of the wife, is not only consonant with reason, but, as the cases cited by the counsel show, supported by very numerous authorities. The act requires a private examination of the wife, to ascertain that she acts freely, and not by compulsion
In Owen v. Norris, 5 Blackf. 481, the court held the certificate valid, although it did not agree in form with the words of the statute, but contained the substance or meaning of it.
In Gregory’s Heirs v. Ford, 5 B. Mon. 481, the certificate did not state that the deed had been “ shown and explained” to Mrs. Gregory on her. privy examination, “ which, (the court say) in strict propriety should have been done”; yet the certificate was held sufficient, because the fact of privy examination, and her declaration that she freely and voluntarily sealed and delivered, &c., raises the implication that the deed was shown and'explained to her, because the clerk was presumed to have done his duty in making the examination, and because it was not to be presumed that he would so certify without ascertaining that she understood what she was doing. They further say, “ We know of no case in w.hich the deed of a feme covert, certified as .this is, has been rejected'. We are disposed to construe the statute and' certificates liberally, with a view of maintaining, rather than destroying, titles derived from femes covert”j and, in there sustaining the certificate, the court wént much further .than is.required in this case.
In the case of Nantz v. Bailey, 3 Dana, 112, the whole subject is very fully considered. In -that case, it did not fully appear on the face of the cértificate that Mrs. Nantz acknowledged the .deed apart' from -her husband, or that she signed
The case of Shaller v. Brand, 6 Binney, 435, meets every objection urged against this certificate; for the acknowledgment was not so certain or particular as this. It is there said by Tilghman, C. J., that “it cannot be doubted that a woman’s voluntary consent excludes all idea of coercion or compulsion.”
To the same effect are the following cases: Robin’s Lessee v. Bush, 1 H. & McH. 50; Webster’s Lessee v. Hall, 2 ib. 19; Hoddy’s Lessee v. Harryman, 3 ib. 581; Mclntire’s. Lessee v. Ward, 5 Binney, 296; 1 Peters’ C. C. R. 188; Jackson v. Gilchrist, 15 Johns. 89; Troup v. Haight, 1 Hopk. Ch. 267; Raverty and Wife v. Fridge, 3 McLean, 245; Vance v. Schuyler, 1 Gilman, 160; Kottman and Wife v. Ayer, 1 Strob. Law R. 571; Etheridge v. Ferebee, 9 Ired. Law R. 312; 1 ib. 113; 8 B. Mon. 177; 15 Ohio, 423; 10 ib. 599, 639, 799.
We propose now to show, very briefly, that the authorities cited by the court do not sustain its opinion; and this will appear on a slight examination of them. The references to 1 Story’s Equity, 597, 177; 1 Story’s R. 486; 1 Peters, 338; 6 Wend. 9; 1 Dev. Eq. 487; and 18 Mo. 522, only show that equity will not aid a defective execution of powers by femes covert, or supply a circumstance for the want of which the legislature has declared the instrument void; and that the privy examination and acknowledgment of a deed by a feme covert cannot be proved by parol. These points are not rhised in our case, nor are they at all disputed by us. In the case of Jourdan v. Jourdan, 9 S. & R. 173, as in Elliott v. Piersol, 1 Peters, 338, the main point was, that the defective certificate could not be helped by proving that the facts, as they actually occurred, were different from the statement of them contained in the certificate, — the clerk having omitted to state, that the wife, when examined apart from her husband, voluntarily consented; and this we certainly, do not dis
These are all the authorities referred to by the learned judge who delivered the opinion of the court, in support of the position that the absence of the word fear is fatal to the notary’s certificate. We feel confident that 'the authorities referred to by us were not brought to the knowledge of the court when this cause was argued, and that this point was not examined at any length, nor its importance very seriously noted, by either the counsel or the court. We beg your Honors, therefore, to consider that the construction of this statute for which we contend was adopted, in the most express and authoritative manner, by the supreme court of the United States, by Justices Washington, McLean and others on their circuits, by the courts of New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Kentucky, Ohio, and Missouri; and that the most eminent judges, in delivering their judgments on it, have used the strongest language, and with remarkable unanimity. We beg your Honors to consider, also, that it is not here pretended that Mrs. Hazzard, in the execution of this deed,
2. As to the next objection, it is enough to say that, on a fair reading of the statute, it cannot be made to appear that it forms a.ny part of the officer’s duty, before whom a married woman appears, to make any inquiry or examination as to her age. This construction has never been adopted in this State, either by the courts, the bar, or the officers by whom such certificates are taken.
(March 10). — This application for a re-hearing has been very fully considered, and is overruled.
