16 Ohio St. 599 | Ohio | 1847
Lead Opinion
The questions presented by this bill of exceptions are of deep interest, not only to the profession, but to the whole community, and involve much matter that demands a calm, careful, and serious consideration. No vexed question that was ever agitated since the formation of our state government has elicited a more general and deep interest than has the subject upon which we are now called *to pass our Judgment. It is one that has elicited the best efforts of many of the most eminent in the profession, and perhaps it is not going to far to say that it has awakened the attention, and enlisted upon one side or the other the opinions of nearly every member of the Ohio bar. A subject thus engrossing in its character must, of necessity, present matter difficult and intricate, and can not have thus grown upon the public mind without s<3me great cause. Were it as easy to determine, under all the circumstances of difficulty which surround the subject, what is proper and right to be done, as to point out the causes which have awakened this general interest, our task would be plain, and our duty too palpable to admit of error in performing it.
It is very proper to give a brief statement of these causes in this connection. Prom the first organization of the territorial government down to the year 1835, the citizens of Ohio, the jurists, professional men, and magistrates, with scarce an exception, supposed and believed that a deed executed as this was, passed at law and equity a good and valid estate from the grantor to the grantee. Thousands held lands by such title deeds, and they felt secure and dreamed of nothing that could strip them of their titles or endanger their property. At this date came the decision in Connell v. Connell, and if it was law, and there was no relief against the doctrines of-that case, it was at once foreseen that the common error that many magistrates, and judges, and lawyers, had committed in certifying the acknowledgment of married women, must produce wide-spread mischief and ruin. At that
With these preliminary remarks, I proceed to consider the points to be determined. This deed was executed while the act of January 30, 1818, was in force (2 Chase, 1041), and to test its validity we must look to its provisions. Section 2 declares that when the estaje of the wife is to bo conveyed, the deed “ shall be signed and sealed by the husband and wife, and the signing and sealing bo acknowledged by them in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing and sealing, and also be acknowledged before, a . . . justice of the peace, and the . . . justice taking such acknowledgment shall examine the wife separate and apart from her said husband, and shall read or otherwise make known to her the contents of such deed, and if upon such examination she shall declare that she voluntarily, and of her own free will and accord, without any fear or coercion of her husband, did and now doth acknowledge the signing and sealing thereof, the justice shall certify the same, together with the acknowledgment of the husband on the same sheet, subscribing his name and affixing his seal to said certificate.”
Tho objects, of these provisions gre manifest: 1. To secure the wife against imposition; and, 2. To prevent coercion. To guard against the fraud of third parties, the husband is required to bo
This view of the subject need not be dwelt upon in order to prove that the legislature contemplated relying upon the official oath of the officer, for his faithful performance of the portion of the statute which is directory to him, or to prove that they did not mean to require a full statement of the means by which he had made known to the feme covert the contents of a deed.
*The Supreme Court of Indiana, in construing a similar statute of that state, says : “It is the officer’s duty, by this statute, before he takes the acknowledgment of a feme covert, to examine her apart from her husband, and make known to her the contents of the deed; and if, upon such examination, she declared, either expressly or in language implying it, that she had executed the deed voluntarily, etc., .the officer must, under his hand and seal, and on the deed, certify the same; that is, he must certify on the deed that such declaration or acknowledgment of the voluntary
This accords with the early decisions in Ohio. So under our statute, if, in tho officer’s judgment upon the separate examination which he is directed to make, the contents of the deed have been made known, he must take and certify her acknowledgment, and that of her husband, on the same sheet. No good purpose could have been served by requiring a detailed statement of the facts done in communicating information to the wife, so full that a court in after-times could- say with certainty that she know the Contents of the deed. On tho contrary, many evils must have come from such a practice; no one would have felt safe in trusting any but tho most accomplished and skillful in the profession to draw up such a certificate; and had the general assembly contemplated anything of the kind, wo should not now find within the lids of the statute, an authority conferred upon a large class of officers to take acknowledgments, thousands -of whom they must have known to be incompetent to perform % duty so precise. But again, why require a certificate under the officer’s hand and seal of his own performance of duty? It would not give any strength to the legal presumption, based upon his oath of office. His official oath would be violated by taking and certifying the acknowledgment while the wife was ignorant of the contents; and surely jf his official oath can not be trusted, his certificate would be utterly worthless.
Tho sensible answer to these objections is, that the true construction of the act does not require a certificate that the contents wore made known before or at the time of the acknowledgment.
Wo come next to consider the reported decisions adverse to this construction of the statute. Tho first in point of time is Connell v. Connell, 6 Ohio, 358, determined by throe judges only, at the December term, 1835, under tho statute of 1805, which statute, in this respect, is substantially like the act of 1818, and all the other
The second ground deserves passing notice. ■ The learned counsel who has furnished us an elaborate printed argument against the proposition, was counsel of one of the parties in Brown v. Farran. An abstract of his argument will be found on pages 146 to 148, inclusive. He there stated *that the practice of taking the acknowledgments of deeds in that form had been uniform over since tho first settlement of the Miami country, and he contended that “ if the community had been in error for thirty years it was better the error should be consecrated by the court, than that they should make a decision which would open the door for general litigation.” It appears, also, that he took pains, by procuring the recorder’s certificates, to prove to the court that two-thirds of all the deeds of Hamilton county, prior to 1820, were either no better or worse than that. It is known to us that Hamilton county was no exception to the general practice. In reference to this view of that case the court then said, “No law can require the correction of and error in its construction, which has long existed, and has been generally acquiesced in” “If it had been tho opinion of the court that the words of the statute ought to bo literally copied, and that such should have been the course from the beginning, they would have resorted to the maxim, communis error facit jus, rather than encounter the consequences of shaking the title to an indefinite portion of the state.” What was thus said can be sustained as a safe and sound rule of action, and in departing from it, in Connell v. Connell, and following a dictum of the judge on a point not made or argued in that case, we think there was error, even if the dictum itself was not erroneous.
By the general assent of the people of the state, and by prior adjudications, deeds had been considered valid to pass the interest of a married woman, without its appearing, from the certificate of the officer, that he had made known to her their contents. The legislature evidently did not think it was required. The state courts had so held, or at least had treated the deed as good, notwithstanding the supposed defect. But the decision of the highest court was then, for the first time, against the validity of such deeds in one case, and one only. Was it proper to interfere? Did the peace, and quiet, and welfare of community require that they should interpose to settle this matter of doubtful construction, or to do that which was equivalent? The legislature thought the act was required, and so do we. The act, in terms, assumes that the deeds were and had been good, but yet that they contained a defect fatal to their admission, to prove title before the court as then constituted, without further legislation’. This is manifest from the words of the act. It reads thus (Swan, 269): “ Any deed heretofore executed pursuant to laic, by husband and wife, shall be received in evidence, in any of the courts of this state, as conveying the estate of the wife, although the magistrate taking the acknowledge
The deeds intended to bo affected by this statute are here treated as good and subsisting titles, such as had been executed pursuant to law. This language is certainly not such as *would have been used had it been supposed that the construction given in Connell v. Connell was a true interpretation of the acts of 1818 and 1820, and the prior statutes. It is the language proper to be used, supposing our construction and the contemporaneous construction evidenced by usage, to bo the correct one. Hence it is not just to impute a design, on the part of the legislature, to transfer property by their own act, or to impute a disregard of the constitution to those who support the act. It was held, however, in Good v. Zereher, that the law was void, because, if it had any effect, its operation was to divest vested rights. If this wore its true character, no one could sustain it. It would receive no countenance anywhere—much less from any member of this court. It purports, however, to do no such thing. Such was neither its object nor effect. It confirmed, by declaring them valid, deeds which were merely doubtful. It was not avoid law, because it quieted in law a question which was like to be vexatious. It came in aid of vendors, in perfecting their conveyances. It assured grantors that they could not be allowed to take advantage of a doubtful, technical, and merely formal matter, under a single decision of doubtful authority, to reclaim property fairly parted with for full value. It is said, in substance, to the dishonest grantor, you shall hereafter act honestly. “It gave effect,” says Judge McLean (3 McLean, 231), “to the intention of the parties, by relieving from, a mere informality.”
There is another and stronger view of this case, which the authorities cited would fully sustain. But it is needless to restate it at length. In the ease of Good v. Zercher, and Silliman v. Cummins, the dissenting judge, standing in a position which seemed to render any other course improper, felt himself bound to regard the case of Connell v. Connell as a true exposition of the statute, and was, therefore, necessarily compelled to defend his position on the curative act alone. In that opinion, and the views therein stated, the majority of the court fully concur. The numerous authorities then and now cited more than sustain it,
It was then, and has'sinco been said that it violated the constitutional provision prohibiting the enactment of any law impairing the obligation of a contract. This argument was effectively put down by the decision of the Supremo Court of the United States, in 8 Wheaton.
It is further objected that the act, if allowed to operate retrospectively, is an assumption of judicial power. If we thought so, we would denounce it. The judicial power of the state can not be encroached upon by tho legislative department. It may furnish remedies, but the courts alone can enforce them. But the argument does not sustain the objection. The effect of tho judicial decision in Connell’s case is not touched by the act. The court then ruled that the supposed defective deed was not evidence of title, and that it was defective. The act gives a new rule, and makes such deeds evidence of title in all future causes, provided the deeds had been executed pursuant to law. The difference between the learned counsel and the general assembly, is this: the latter took a distinction between the execution of the deed by a grantor, and the certificate of acknowledgment by the officer; while the counsel take no such distinction. Tho act of the legislature loaves open tho question as to the due execution of the deeds, acting only upon the supposed informality of the certificate. It imparts no vitality to any right not flowing from the acts of the grantor, which the act of 1835 recognized to the letter. Such deeds are assailablo in the judicial ^tribunals, the same as those executed and certified in the most approved form. Like the latter, they may be attacked either at law or in chancery, if in fact the wife was defrauded. If the contents of the deed wero not made known, if she was coerced, or if she did not, in fact, make her
It was held by all the members of the court, in the case of Good v. Zercher, that acts of this nature may operate, if confined to legitimate objects. “If (says the judge who pronounced the decision of the majority) one competent to do the act attempts to convey a legal estate, and should by defect of form transfer an equity only, the legislature might cure the defect and convert the equitable into a legal estate, or, in better phrase, unite the two. The legislature may cure the title to property, but can not create it.” 12 Ohio, 368. ¥e are satisfied with this .exposition of the principle, and do not controvert it. But it shows that the act of 1835 is not an assumption of judicial power, because Mrs. Shane was made competent by the statute regulating deeds to convoy, by uniting with her husband. On her part she made the attempt in the full and formal exercise of this power, and on her part did all that was required in the prescribed form; but by a supposed failure of the magistrate, she transferred an equity only.
Now, had an unprotected feme sole, without the aid of any friend, executed her deed, and the magistrate had omitted, through mistake, or other cause, to certify it in due form, she would transfer an equity which the legislature “ might convert into a legal estafe,” and “ cure the title to the property.” And yet it is by a supposed failure of the magistrate’s certificate only, that the legal title of the feme covert did not pass. And it can not be denied, that her grantee has an equity against her, flowing directly from her own act, as binding upon her conscience, and not less substantial in ¡Joint of *fact than is the equity against a feme sole, in a case of defective certificate to her conveyance. The cases are not distinguishable in reason. If the legislature can heal the defect in the one case, they may in the other. If a court of chancery ought to interfere in the one case, so ought it in the other. The fiction of law which merges the legal existence of the wife during coverture, is a more fiction. It does not deprive her of the intellect and soul that God gave her. She is still a moral and intellectual being, the fit companion of man, and morally responsible for her conduct.
The last objection is, that the act encroaches upon the judiciary.
Dissenting Opinion
dissenting. I can not concur in the opinion of the court just pronounced.
So lar as it depends upon a construction of the statutes respecting the conveyance of estates, or relinquishment of dower by married women, it violates no fundamental principle. This is proper matter for judicial action, and admits no unconstitutional interference with private rights, or an improper assumption of judicial power by a co-ordinate department of state. It is the right of the •legislature to enact laws within the sphere of its constitutional power; but the exclusive right and duty of the courts to determine their meaning and application. Under our system the powers of enacting and construing laws are kept separate and apart; the constitution confers the power of enactment upon the legislature,
This is the true interpretation of the statute. The term acknowledgment embraces all that is necessary to make a binding deed under the statute, and every requisition must *be shown to have been complied with in the certificate. The wile being under disability, the law will presume nothing against her, and those who claim to dejurive her of her estate must show that every requisition of the statute, necessary to render her deed valid, has been complied with. That which alone gives effect to every other requisition should at least appear. The knowledge of the con
In examining a great question like the present, resort should be had to fundamental principles, and the authority of precedent should bo no further regarded than it conforms to reason and the
The people possessing and asserting their inherent natural and absolute power to govern themselves, have adopted such government as they deemed best calculated to promote their happiness
The legislative power may enact laws; the judicial declares their meaning. Tho legislative power may declare what shall be law; the judicial what is law, and what has been law. To determine what are the rights and duties of persons in their most minute and broadest forms under existing laws, and what these have been under past laws, is the right and duty of the judiciary. To declare how these rights shall be modified or destroyed, always having a regard to constitutional restrictions, by laws to be enacted, is the right of the legislature, but the meaning and application of these very acts is left for the determination of the courts. In a word, the courts act upon tho past and the present, tho legislative power upon the future. The one declares what has been and is law, the other what shall be law. To declare the legal nature and effect of past acts by positive law, is the most startling tyranny, and violates the fundamental principle of human rights. Every one is bound to obey the law, but to command obedience to a law before it is promulgated, and assert that a law may be enacted at some future period, to make that criminal then which is lawful now; or by the force of a law which may be enacted at some future day, to deprive men of their property rightfully acquired under existing laws, is unmitigated despotism and the assertion *of absolute power over property and life. The exertion of legislative power in such manner, or in the mildest
There is a class of objects within the scope of legislative action which may seem to admit of retrospective laws. But it is not so. The legislature may change remedies, but not rights; may designate the forum or tribunal for tho trial of causes; may change positivo rules of evidence, and convert equitable into legal rights. But in all these cases tho effect of the law is prospective; it only permits to be done in future what could not be done before, and only permits existing rights to be enforced in a different mode. Such legislation does not destroy a right; it does not operate upon the past, but only permits past rights to be carried into effect and prosecuted in future in the mode prescribed.
Let us, in view of these principles, look to'the constitutionality
But let us examine the grounds upon which it is sought to escape all this, and support the curative act, and avoid the violation of facts and principles which such conclusion necessarily involves.
It is said the curative act of 1835 is valid because it only changes a rule of evidence, and admits a deed to be received in evidence, which before was excluded by reason of more formal defect in the certificate of acknowledgment. *This is not so. Such is not the character of the act. It not only admits the deeds in evidence, but declares their effect. The words are, “ shall bo received in evidence, in this state and elsewhere, as conveying or incumbering the estate or interest of the icife, or as releasing her right of dower.’’ It is thus a law changing the right of property, by giving effect to that which at the time it was done, did not transfer it. It is retroactive; violates all just principles of legislation by giving to past acts the effect to transfer property, when such acts did not transfer it at the time of their occurrence. The curative act was not necessary to admit such deeds in evidence; they were never excluded from mere formal defect, their effect only was denied, and they were not regarded by the court, simply because, as against a married woman, they created no binding right or obligation, and in no sense incumbered or transferred her estate, or relinquished her right of dower.
But it is contended that the curative act is constitutional, because it only declares the effect of deeds which are valid without the act. That the statutes providing the mode in which a married woman might transfer her estate or relinquish her right of dower, did not, if properly construed, require that the certificate of acknowledgment should disclose that the officer taking the same had read or otherwise made known to her the contents of the deed, or that she knew the contents. It is claimed that such had been the construction put upon the statutes of 1805 and 1818, as was, to be gathered from the very general practice of omitting
■ It is further said that the curative, act of 1835 was enacted to relieve a doubt as to what the law was, created by the case of Con-hell v. Connell, and quiet the fears of those who reposed safely upon the faith that they had good titles. That case did not create a doubt, but settled it beyond all controversy, *that deeds of married women, which, did not disclose in the certificate of acknowledgment that the officers taking the same had read or otherwise made known the contents to the wife, wore not valid ■to bind her, and divested her of no right. It was to prevent the effect of this decision that the act was passed—not to relieve a doubt. But even if the court should doubt as to the construction ■of a law, that would not authorize the legislature to construe the statute; they might declare clearly what the law should bo in future. In cases of doubt at common law, the English parliament 'has claimed tho right' to declare what is and always has been the common law—it is not even claimed to the parliament that it has the right to construe its own statutes. But were that the case/
But it is contended that the curative act is constitutional, because it merely converts an equitable into a legal right—making that a good title in a court of law, which, without-the act, could only be enforced in a court of equity. If this wei-e the nature of the act it would certainly be constitutional. This would be mere change of remedy, and would be legitimate. But the difficulty which meets this view is, that there is no equity upon which the law can act. ( The defective deed transfers no equity which a court of chancery could enforce. This was decided in the case of Karr v. Williams, 10 Ohio, and is the doctrine of all the books. The deed of a married woman, unless executed in conformity with law, divests her of nothing. But, it is exclaimed, “What! has a married woman no soul ? Is she not a moral agent, answerable to God for her moral wrongs? Shall she be permitted to join in a deed and still hold her estate or right of dower? May she be guilty of fraud, and if a court can give no remedy, *may not the legislature interfere? ” Her rational nature and moral being are not all denied. The simple answer is, the law has placed her under disability. She can only execute a deed to divest herself of her estate, or dower right, in the mode prescribed by the statute, which empowers her to convey. If a party dealing with' a married woman •takes a deed which conveys nothing, he takes nothing under the deed. Whether the law in this respect is wise or unwise, is not for me to discuss. I simply say such is the fact. It is no answer to say that the doctrine of the common law, that the wife’s legal existence is merged in that of the husband, is a mere fiction ; it is not denied but that coverture imposes a real and substantial disability upon the wife. I h'ardly suppose that any lawyer will seriously contend that a married woman is not placed under disability, or that she may deal with her property as a feme sole. If this were the case, any contract of the wife for the sale of her land, or any deed of hers, or conveyance for the transfer of her estate, might be enforced against her in a court of equity or law, as the case might require. This no lawyer can pretend. The
But it is said the curative act is valid because it merely supplies the omission of the officer. That the woman had done all in her power to get rid of her estate or right of dower, but that the officer had failed to perform his duty. Whether the woman had done so or not is a matter of mere assumption. It may have been, that for the sake of peace, she joined in the deed knowing that unless the contents wore made known to her, it divested her of no right. But all this is immaterial. It can not be said that the fact whether the woman knew the contents of the deed or not, is matter of mere clerical omission. That is matter of substance that pertains to the wTife, and the legislature did not intend to leave it in doubt; the statute directs that the officer shall read or otherwise make known to her the contents of the deed, and state that important fact in the certificate of acknowledgment. It can not be denied that the legislature had the right to make the certificate ; that the contents of the deed were made known to the wife—a part of its execution. The certificate of acknowledgment is a part of the execution of the deed; without it, it would be no deed. Yet, that is the act of the officer, but if he should fail to make any certificate of acknowledgment, it would be no deed that could be enforced against a married woman. If the officer fail to make out the certificate, which the statute requires, it is no cer
against her as a contract; if it could, it *conld not be done under the curative act, because that in express terms only applies to deeds 11 heretofore executed pursuant to law." If the,act of the officer makes up part of tho execution of a deed, and such act bo not done, it is no deed, because, to be a deed, it mast be executed. The recording of a mortgage, the court has held under the statute, is part of its execution, and it has been repeatedly held that if it bo not recorded, it is no mortgage, and can not be enforced in any form, cither in law or equity. Hence, if the officer fail'to do that which the statute requires him to do, as part of tho execution of the deed, it is no deed, and if tho curative act supplies the lack of execution, it converts that into a deed, which before, at best, could only be regarded as a contract, and gives effect to such contract to deprive her of her rights. The constitutionality of this act, can derive no aid upon this ground.
Thus, wo perceive, it is utterly useless to attempt to disguise the matter. The constitutionality of the curative act of 1835 can not bo supported upon any of the assumed grounds. It can not be supported upon the assumed ground that tho court erred in the construction of the act of 1805 and 1818, in Connell v. Connell, because that would be a direct assumption of judicial power, and an attempt on the part of the legislature to construe its own acts. It can not be supported upon tho ground that it was enacted to relieve a doubt: none such existed; or that it barely changes a rule of evidence, because that is not its character; or that it changes an equitable into a legal right, for no equity existed; or that it merely supplied the omission of the officer, because on the last point it would be to supply the execution of a deed, which converts a contract of no validity into a binding deed. If it be supported at all, it must be upon the naked ground that the legislature has the power to transfer the property of one person to another, by its own will. If the woman, being under disability, had done no act which deprived her of any right, prior to the act of 1835, and that act deprives her of rights which she had in no sense parted *with, either in law or equity, it is a simple transfer of property by legislative will. It is admitted, conceded, and can not be denied with any truth, that this act was passed for
It should be borne in mind, that the principles of our goverment are new, and wo should be careful not to permit evil example to overshadow the groat truths which lie at the foundation of our rights; principle should never be sacrificed to obtain apparent temporary good. But precedents may work no general evil in quiet and peaceful times. - But like others, wo must undergo periods of excitement and trial. It is then, when prejudice has dethroned reason and passion seeks to trample down right, that bad precedents are seized upon to justify the worst of acts. If we permit the great safeguards of our rights, which have been constructed with wisdom and caution, to be weakened or invaded, when evil *times shall come, instead of finding safety under the broken fragments of a shattered constitution, we shall be made the victims of oppression under the forms of law. Unreasoned-violence creates too much opposition and alarm, to be a source of much danger, the first tread of despotism is over over violated principles. It is the oppression of law and not the hand of force which should cause real alarm. If we may legislate a woman out of her rights, because it was thought she should have relinquished them, and a man out of his land, which had been adjudged him by
I care not how honest the legislature may have been in passing a law, and I am as ready to admit that the members of the legislature wero as honest and anxious to do right as the members of the court, yet if such law invades private rights, and violates the constitution, I shall ever, as a judge, without hesitation declare it to be void. I hold the curative act of 1835, for the reasons I have assigned, and the reasons which have heretofore been assigned by this court, to be unconstitutional and void. And the cases of Good v. Zercher, and Cummins v. Silliman, are law. The reasoning of these cases has not been at all controverted or shaken, and I believe if but few persons had been affected by the principles thus announced, that their authority would not have been questioned. The only escape from their conclusion is to abandon the curative act, and resort to the construction of the acts of 1805 and 1818. The curative act is only defensible upon a few bald precedents, resulting from confused notions and the perversion of principle, and stands opposed to all enlightened jurisprudence and correct notions of legislative power, and to the fundamental principles of our constitution and system of government.