18 Mo. 531 | Mo. | 1853
Lead Opinion
delivered the opinion of the court.
The plaintiffs are the heirs of Emily Chauvin, wife of Francis D. Chauvin. They are the children of that marriage. The
“ State of Missouri, ) ’
’ \ ss.
“ County of St. Charles, )
“ Be it remembered that, at a term of the Circuit Court for the county and state aforesaid, began and held at the courthouse in said county, on the fifth day of October, in the year of our Lord eighteen hundred and twenty-nine, before the judge thereof, in open court, personally appeared Emilie Chau-vin, wife of Francis Devinz Chauvin, who was proved by Edward Bates and Wm. N. Fulkerson, examined before me, on oath, to be the person whose name is subscribed to the foregoing instrument of writing, as having executed the same, and acknowledged the same to be her act and deed, for the purposes therein mentioned. She, the said Emilie, being by the court first made acquainted with the contents thereof, and examined separate and apart from her husband, whether she executed the said deed, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely and without compulsion or undue influence of her said husband, acknowledged and declared that she executed the said deed and relinquished her dower in the said lands and tenements therein mentioned, voluntarily, freely, and without compulsion or undue influence of her said husband.
*541 “In testimony whereof, I, William Christy, jr., clerk of the Circuit Court, have hereunto caused the seal of said
[l. s.] court to be affixed, at St. Charles, the 7th day of October, A. D. eighteen hundred and twenty-nine. >
“ W. Cheisty, jr.”
Desiré, the grantee in the deed, took possession of the property conveyed, immediately after the execution of the deed, and he and those claiming under him have ever since continued that possession. Chauvin, the husband, died in 1835, and his widow in 1849. The plaintiffs, as heirs of their father, received assets by descent equal to the value of the’ property at the time of its conveyance to Desiré. ■
The act regulating conveyances in the code of 1825, was the law in force at the time the deed from Chauvin and wife to Desiré was made, and its effect as a conveyance of the estate of the wife is to be determined by that act. The 12th section of the act is in these words: “ Sec. 12. Be it further enacted, That when any husband and wife shall wish to dispose of or-convey the real estate of the wife, it shall and may be lawful for the said husband and wife to execute any grant, bargain, sale, lease, release, feoffment, deed, conveyance, or assurance in-the law whatsoever, for the conveying of such lands, tenements and hereditaments; and if, after the executing thereof, such wife shall appear before some court of record in this state, to the judges of which, or either of them, she is known or proved by two witnesses to be the person who executes such deed or conveyance, such court or one of the judges thereof shall make her acquainted with and explain to her the contents of such deed or conveyance, and examine her separately and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion or undue influence of her husband;, and if such woman shall, upon such examination, acknowledge-such deed or conveyance to be her act and deed, that she executed the same voluntarily, freely, and without compulsion or undue influence of her husband, and does not wish to retract, the court shall cause their clerk to make a certificate, endorsed
It will be seen that this section requires that, after the execution of the conveyance, the wife shall appear before a court of record, and that the court “ shall make her acquainted with and explain to her the contents of the deed or conveyance,” and “examine her separately and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion or undue influence of her husband.” This much of the section prescribes the duty of the court, and then it proceeds to declare “ that if such woman shall, upon such examination, acknowledge the deed or conveyance to be her act and deed; that she executed the same voluntarily, freely and without compulsion or undue influence of her husband, and does not wish to retract, the court shall cause the clerk to endorse a certificate on the deed.” The certificate is required to contain the evidence of the following facts : 1st, the identity of the person acknowledging the deed as the grantor; 2d, that the con- ’ tents were made known and explained to her; 3d, that she was examined, as required; 4th, that she acknowledged the conveyance in the manner prescribed. The' objection is taken to the:,certificate in the present-case,'that it does not show that
1. The property in controversy was acquired by Mrs. Chau-vin before her marriage, and she was married after the introduction of the common law. Under that system, she could make-no deed, which would be effectual to pass the title to her property, after her marriage. In June, 1821, the assembly passed an act with this preamble : “ Whereas, doubts exist whether, by any laws in force in this state, a husband and wife are authorized to make conveyances of real estate belonging to the wife, therefore, be it enacted,” &c. The act provides for a privy examination and acknowledgment, to be certified under the seal of the court and endorsed on the deed. That act continued1 in force until the revision in 1825, when the act was passed' which has before been quoted. It is not doubted that these are-to be regarded as enabling statutes, and that they furnish the-only law which, after their passage, was to be pursued in conveying the title of a married woman by deed. That they are-to be pursued substantially, in order to the conveyance of the-title of the feme covert, is the undoubted result of the am-
2. These positions being assumed, the certificate of acknowledgment in the present case will be examined. The certificate says that Mrs. Ohauvin was “ made acquainted with the contents of the deed.” “Acquainted” means “familiarly known.” The act says that the certificate shall set forth that the contents were “ made known and explained to her.” The duty enjoined upon the officer is, to see that the woman understands the nature and effect of the' instrument she has executed. It would clearly be superfluous for the court to attempt an explanation of the contents of a deed, if the woman should so state her own understanding of its effect as to show that she already understood it perfectly, and the certificate would be false, if it said that the contents of the deed were made known and explained to her, when the court took the acknowledgment upon ascertaining that she already knew and under
In some cases, as where the instrument is in a language with which the woman is not acquainted, it will be necessary to explain the meaning of the words employed in the instrument. In some cases, where there are complicated limitations, there may be a necessity for an explanation of the effect of such parts of the instrument. In such cases, the officer or court would explain the instrument, and the law requires the explanation to be made, unless the woman had the requisite knowledge without the explanation. The certificate in the present case states, that the woman was made acquainted with the contents of the deed, and this may be regarded as a statement that she understood the nature and effect of the instrument. There are many cases in different courts, in which such strict
3. The next question is, whether the certificate is invalid, because it states that the examination of the wife was “ whether •she executed the deed and relinquished her dower voluntarily,” &c., and because it states that the acknowledgment she made upon that examination was, “ that she executed the said -deed and relinquished her dower voluntarily,” &c. The ex- ■ amination embraced the question, whether she executed the deed voluntarily, and the acknowledgment of the wife was, that she ^did execute it voluntarily; but, in addition, she was examined to the point, whether she relinquished her dower, and she acknowledged that she did relinquish her dower. It will be seen by referring to McDaniels. Priest, 12 Mo. Rep. 545, that the •precise point here made was considered and decided, and we are now asked to review that decision. It was admitted in that case that the words in the certificate relating to the relinquishment of dower were superfluous, and if they were stricken out, the certificate would be in exact conformity to the act. It was said that, if those words had no tendency either to limit or extend or ' control in any manner the language immediately preceding them, there would be no objection to regarding them as mere sur-plusage. But it was said to be “ obvious that the additional ■clause might well be construed as a limitation upon the effect ■of the preceding acts, and that the wife had, in executing the '■deed, merely relinquished her dower, and had not parted with her inheritance.”
The same remarks apply to the further statement in the certificate, that she acknowledged and declared that she executed the deed and relinquished her dower freely, &e. These words, in the statement of the examination and acknowledgment, upon the supposition that the duty of the court, in making her acquainted with and explaining the contents of the deed to her, had been performed, are entirely without meaning, and could not possibly have misled her.
4. The next objection made to the certificate is, that Mrs. Chauvin did not acknowledge that “ she did not wish to retract.” If the statute requires that to be a part of the acknowledgment, the certificate in the present case is entirely silent about the fact. The acknowledgment is to be made after the examination, and the examination, as required, evidently does not embrace the then state of the woman’s wishes in relation to the deed. She is to be examined as to whether the deed had been executed by her voluntarily, not whether she wished it to be in force as a conveyance. Still, if the- acknowledgment, which she is to make, is to include her present wishes in relation to the deed, it must so appear. The Supreme Court of Illinois, in Hughes v. Lane, 11 Ill. Rep. 132, held, under an act precisely like ours, that the fact, that the woman did not wish to retract, was not- one about which she was to make an acknowledgment, but the words were inserted in the statute with the design of allowing a married woman to recall the consent to the conveyance which she had freely given. It must be admitted that this reading of the statute, while it may support titles, strains the language of the act very greatly. The-whole section is but a single sentence. It opens by allowing husband and wife to convey the real estate of the wife, by any conveyance known to the law, and then prescribes the course to be pursued to make the instrument effectual. It requires that after the execution of the deed, she shall appear before a court, and
5. Regarding the conveyance by Chauvin and his wife as ineffectual to convey Mrs. Chauvin’s estate, it is necessary to consider whether any covenants in the deed or any acts of Mrs. Chauvin, in her life-time, will bar the present plaintiffs, who claim as her heirs. There are no covenants but those contained in the words <£ grant, bargain and sell,” which, by the statute, contain covenants ££ that the grantor was, at the date of the conveyance, seized of an indefeasible estate in fee simple in the premises conveyed ; that the same was then free from incum-brances done or suffered ££ from the grantor, his heirs and assigns, and all claiming under him ; and also for further assurance thereof, to be made by the bargainor, his heirs and as
6. If the plaintiffs are not estopped by the covenants of seizin or against incumbrances, are they affected by the covenant for further assurance? This covenant runs with the land. If Francis D. Chauvin, the ancestor, had acquired a further or better title to the premises after his conveyance, he would have been compelled specifically to execute the covenant by conveying such title. 2 Sug. Ven. 541. 2 Oh. Cases, 212. Smith v. Baker, 1 Young & Collier’s Ch. Rep. 223. If he had acquired a title subsequent to his conveyance, and such title had descended to his heirs, they would have been compelled to execute the covenant. The present plaintiffs have never acquired any title to the property from their father. In respect to it, there is no privity between them and their father. It was acquired fourteen years after his death. They are responsible as his heirs, upon his covenants as far as they have assets by descent from him. And if in the present case it were shown that the assets by descent were equal to the value of the property, when they acquired the title, their obligation then as his heirs, in respect to the assets descended, might have been held complete to make the assurance. The duty to make an assurance could not devolve on them while the title was in their mother. The covenant provided by the statute, if written in the deed in the form expressed in the act, would simply contain a stipulation “ for further assurance thereof to be made by the bargainor, his heirs and assigns.” The heirs of the grantor, as such, are bound to make assurance, but certainly not until there is something to be done by which the grantee’s title can be secured. But nothing could bo done by them until the title came to them by descent from their mother, and they could not be held to convey it then, unless they had assets of equal value
Again, it is said that Mrs. Chauvin, having lived in the county of St. Louis for fourteen years after the death of her husband, and for much of that time in the city, where she could have seen those holding the lot under the deed she had executed, erecting improvements and expending their money thereon without disputing their possession or making known her claim, should be held to have ratified her former deed. It may be sufficient to answer, that the deed in the present case is not considered merely voidable, as is the deed of an infant, but entirely inoperative to convey her title to the land. If the deed was void, so that the estate of the wife did not pass, there could be no ratification by which the estate would pass, short of a re-execution of the instrument. She might do acts and make representations by which others, relying on her acts and representations, would be misled to their prejudice, and under such circumstances, she might be estopped from setting up the title that was really in her ; but this is entirely a distinct question from that of the ratification of a deed. The authorities cited, which relate to the ratification of deeds by infants, are not considered applicable to the present case.
Whether, from the facts admitted by the parties, a re-delivery of the deed would be found by a jury, is not within our province to say ; but certainly it is neither found by the court nor agreed by the parties, and it is not a presumption of law from the circumstances detailed in the agreed case. It has also been insisted that the conduct of Mrs. Chauvin in relation to the property after she became sole, was such as to estop her and her heirs from claiming it. Yet the agreed case states no act of hers that shows that she ever knew the condition of property, or the acts of the occupants in using and improving it. It is not believed that the mere want of action or claim on her part can have the effect of an estoppel, or be a defence, short
I have thus, as briefly as possible, considered the questions in the case, and the conclusion at which I hare arrived is one unfavorable to the title of the defendants, as presented on the record. It is a conclusion attained by yielding to what I regard as the demands of strict law, against my sense of the justice of the case. But the court has no power to dispense with any requirements which the law, makes. The very able and elaborate arguments and briefs of counsel would have rendered it comparatively easy to present the views of the different courts of the Union on most of the questions involved in the case, and their publication will render the future investigation of those questions easy to those who are to come after us.
Judge Ryland concurs in reversing the judgment, but does not concur in the views here expressed in relation to the case of McDaniel v. Priest. He adheres to that decision.
The judgment is reversed and the cause remanded.
Dissenting Opinion
dissenting. By the common law, a married woman could not, by any act in pais, even with the concurrence of her husband, convey away her lands. Statutes have been enacted, which enable her to convey away her lands and her right to dower, by the observance of certain forms. When the forms have been departed from in making the conveyance, the argument against its validity was, that as the statute is in derogation of the common law, it must be strictly complied with, otherwise the deed of a married woman cannot he valid. This argument, wherever modes of conveying the wife’s land similar to our own prevail, has been made and has been resisted. All the courts have abandoned the common law rule, so far as .this subject is concerned, that statutes made in derogation of the common law must be strictly pursued. In the determination of questions under these statutes, some courts have been liberal in their departure from the rule, others not so much so. The object of the law is, to obtain the free and unconstrained