170 Pa. 62 | Pa. | 1895
Opinion by
If Priscilla Carr actually signed the deed of October 9, 1854, purporting to be the deed of Robert Carr and Priscilla Carr his wife, to Amzi Fuller, the plaintiff has no case. The question whether she did sign it was the one controlling question in the cause. It was carefully and correctly submitted to the jury by the learned court below with proper instructions, and the jury has found that she did sign it. It was a pure question of fact and necessarily was submitted to the jury. No request was made by the plaintiff for a binding instruction to the jury to find for the plaintiff, and no such instruction could have been given if it had been asked. The ninth assignment of error therefore could not be sustained even if such a request had been made, and it cannot be sustained because none was made.
The other assignments of error simply raise questions of the admissibility of various, offers of proof. Taking them up in their order the first assignment alleges error in admitting the original article of agreement for the sale of the land in question. It was dated Feb. 7, 1854, and it was signed by Priscilla Carr, Robert Carr and A. S. Fuller. It contained a covenant that Priscilla Carr and Robert Carr, being the parties of the first part,
When the article of agreement was offered in evidence, it was objected to on the ground that it was a paper agreeing to convey the land of a married woman and was not acknowledged in the manner prescribed by law. Of course if this was the only instrument under which it was claimed that the title passed, the objection would have been valid, and the paper should have been rejected. But it was not offered as such a paper, nor for any such purpose, but as one of a chain of facts, the whole of which tended to show that Priscilla Carr really did sign the deed which was subsequently executed and delivered. For that purpose it was undoubtedly competent, and it would have been manifest error to reject it.
The next three assignments of error are to the admission in evidence of the three obligations for $688.28; $397.58 and
The fifth assignment alleges error in the admission of the deed in evidence, because the record did not show the signature of Priscilla Carr to the deed. Of course if the absence from the record of the deed, of her name as one of the grantors, was conclusive proof that she never signed it, the objection should have been sustained. But there is no law for such a proposition. Her name might have been omitted from the record by the mistake of the recorder, or his copying clerk, and it is simply a question whether the probabilities from all the testimony in the case are sufficient to justify the jury in attributing the absence of her name from the record to such a mistake. When the other facts are briefly reviewed it is simply impossible to account for them except upon the theory that the omission of her name on the record, as one of the grantors, was due solely to the mistake of the recorder or his clerks. In the first place, the deed with her signature attached was precisely what she agreed to give when she executed the article of agreement. In the next place the deed on its face purported to be her deed, as well as that of her husband. In fact her signature was more important for passing the title than that of her husband. The'
As a matter of course the deed was intended by every one interested to be the deed of the wife as well as of the husband, and no rational process of thought can attribute, either to the grantors, any intent or desire to execute and deliver a deed not signed by the wife, or to the grantee any willingness, intent or desire to accept such a deed. That conclusion is so enormously improbable that it is simply and absolutely incredible. In the next place the justice of the peace who took the acknowledgment certifies most distinctly and positively, under his hand and seal, that both the husband and wife did in fact appear before him on the day of the date of the deed, and did both, “ severally ” acknowledge “ the foregoing indenture to be their act and deed and desired that the same might be recorded as such.” And further that “the said Priscilla being of full age and separate and apart from her said husband by me examined declaring (the full contents of said indenture being first made known to her) she did voluntarily and of her own free will and accord sign seal and as her act and deed deliver the said Indenture without any coercion or compulsion on the part of her said husband.”
As to this certificate there is no mistake. It is an affirmative, official declaration, that all the facts therein stated did actually occur, and this official declaration has assigned to it by the decisions of this court a legal effect such as, in the absence of
In Williams v. Baker, 71 Pa. 476, we said, “Under the act of 24th February, 1770,1 Sm. 307, establishing a mode by which husband and wife may conve3 the estate of the wife, the official certificate of acknowledgment is the only evidence that the wife has acknowledged the deed in the form required by the statute, in order to make a valid conveyance of her interest in real estate, and except in cases of fraud and duress, it is conclusive of every material fact appearing on its face.”
In Heeter v. Glasgow, 79 Pa. 79, we said, “ The certificate of a justice of the peace of the acknowledgment of a deed or mortgage is a judicial act. It is conclusive of the facts certified to in the absence of fraud or duress. This is the current of all the authorities in this state.”
To the same effect is Cover v. Manaway, 115 Pa. 345. Here then we have a conclusive judicial declaration that Priscilla Carr did appear in person and acknowledge that she did sign and seal this deed. There is no proof of fraud or duress, and hence the facts certified are conclusively presumed to be true. But these facts cannot be true and the record of the deed be a true record. While the accidental omission of the name of the wife as a grantor, on the record of the deed, can be easily accounted for on the theory of a mistake of the copyist, the positive judicial declaration that she did acknowledge her signing and sealing the deed cannot be accounted for, except upon the absolute assumption of its truth. This being so it is a very modest estimate of the legal effect of the acknowledgment to say, that it is evidence of the fact of signing which may be considered by the jury. Of course if a deed is actually produced which contains a certificate of full acknowledgment, and yet does not contain the signature of one of the grantors, the pl^sical proof demonstrates that there was a mistake in the acknowledgment. This was the fact in the case of Miller v. Ruble, 107 Pa. 395, but that is not this case. We are very clear that the recorded deed was property admitted in evidence. Without pursuing the subject in all its details it may briefly be said that all the other facts in evidence were consistent only with the fact of an actual execution of the deed by the wife. For instance, the grantors gave up the possession of the property to the grantee who lived on it a number
Judgment affirmed.