38 Iowa 185 | Iowa | 1874
Lead Opinion
— The defendant testified that Eebecca Heaton was his sister; that he purchased the land in controversy in 1844 or 1845, and paid therefor $100; that His father gave said land to Eebecca prior to his purchase thereof, and that the understanding was that he was to make them a deed; that the understanding was that he was to have the whole land, and a good title and warranty deed, and he'always supposed he had such a deed until September, 1869, and that he knew of no reason why it was not such, unless it was by mistake made in the form in which it was executed; that he went into possession in 1845, and has paid the taxes ever since; that he had ten acres broken on said tract in 1845 or 1846, and had twenty-five acres more broken and fenced in 1855 or 1856; and that he has had crops off the land regularly every year since 1856; that plaintiffs’ parents had full knowledge of his occupancy thereof, and his claim thereto, and they never asserted any claim to the ownership thereof.
The conveyance under winch defendant claims is in the usual form of a warranty deed, and begins as follows: “This indenture, made this 17th day of April, in the year 1845, between Silas H. Heaton, of the county of Muscatine and Iowa Territory, of the first part, and Moses Eryberger, of the county of Muscatine, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one hundred dollars,” &c. This deed is signed by Silas and Eebecca Heaton. The acknowledgment is in the following form:.
Given under my hand,” &c.
The law in force at the time this deed was executed contains the following provisions respecting the conveyance by
“No such acknowledgment shall be taken unless such married woman shall be personally known to at least one judge of the court taking the same, to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such by at least one credible witness, nor unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge, on an examination apart from her husband, that she executed the same, freely, and without compulsion or undue influence of her husband.”
“The certificate of such acknowledgment shall set forth that such married woman was personally known to at least one judge of the court granting the same to be the person whose name is subscribed to such conveyance as a party thereto, or was proved to be such by at least one witness, (whose name shall be inserted in the certificate,) and that she was made aquainted with the contents of such conveyance, and acknowledged, on an examination apart from her husband, that she executed the same freely, and without compulsion or undue influence of her husband.” Eevised Statutes of 1843, Chap. 54, §§ 24, 27, and 28.
The mode prescribed in the statute above set out, and which is generally adopted in this country, of alienating the property of a feme covert by a deed acknowledged apart from her husband, is a substitute for the common law fine, and is an enlargement of the power of alienation. But, in order that
From an examination of the deed in question, it appears that the name of Rebecca ITeaton nowhere appears in the body of the deed, although her name is signed to it; and further, that the acknowledgment omits to state that she was made acquainted with the contents of such conveycmce.
The courts have uniformly held that either of these defects renders the deed void, and incapable of enforcement against the wife. We have not been able to find a single case which admits of the correction of such defects in a court of equity.
I. In O'Ferrall v. Simplot, 4 G. Greene, 162; s c. 4 Iowa, 381, an acknowledgment with the above omission was held to be fatally defective.
In Silliman v. Cummins, 13 Ohio, 116, in which the acknowledgment failed to state that the defendant, a married woman, was made acquainted with the contents of the deed, the court employed the following language:
“ A married woman has no legal existence or power to transfer her interest in real estate except through the statutory channel. The mode of executing the conveyance confers upon her the power to convey. Where the power exists independent of its mode of execution, and has been defectively executed, it is not a case of want of power, but of defective execution, which a court of equity will aid. But where the power and mode of execution are inseparable, the power resulting from the mode, and that mode has not been pursued, it is not a case of defective execution, but a want of power which a court of equity cannot aid. Hence when a married woman attempts to convey, and lacks power from not pursuing the mode prescribed, courts of equity will not relieve, because to amend the mode is to create the power.” And in this case it was held that the deed did not pass the estate of the wife, and that a court of equity could grant no relief. In Grow v. Zumbro, 14 Grattan, 501, Mary Zumbro and John Zumbro, her husband, deeded the land to the defendant in 1833. In 1850, John Zumbro died. Afterward Mary brought her action in
To the same effectis Watson v. Bailey, 1 Binn. 470, in which it was held that the omission of the word voluntary in the acknowledgment of the wife, rendered the deed inoperative to pass the title to her lands, and that it is not admissible to prove her parol declaration that she executed the deed voluntarily, and if it was not sufficient, would execute and acknowledge it again, or do any act to make the deed good.
In Dewey v. Campau, 4 Michigan, 565, the court used this language: “ The deed of a feme covert conveying her interest in lands which she owns in fee, does not pass her interest by the force of its execution and delivery as in the common case of a deed by a person under no legal disability. But the law presumes that ■ a feme covert acts under the coercion of her husband, unless by a separate acknowledgment, out of the presence of her husband, before some officer duly authorized to take such acknowledgment. The deed of a feme covert, being void at common law, is a nullity unless acknowledged in strict compliance with the statute. The acknowledgment as to her is a part of the deed.” To the same effect is Pratt v. Battels, 28 Vt. 685. Russell v. Rumsey, 35 Illinois, 362, was an action for the recovery of dower. The deed was both executed and acknowledged by the wife, but the certificate of acknowledgment failed to state that the wife relinquished her dower in the premises. In holding that her dower was not barred, the court employed the following language:
“It is urged that a widow claiming dower under such circumstances acts in bad faith. This may be true, but the law is not designed to regulate morals of indivduals who violate no law. Also, that she knew when she executed the deed that the purchaser expected to obtain a release of her dower, and that she must have designed to bar it by her act. The same might be said with equal truth, if she had only signed the deed and acknowledged it in the presence of a subscribing
In Martin v. Dwelly, 6 Wendell, page 9, the acknowledgment of the wife to a conveyance was ’ defective. In this case Mr. Senator Beardsley said: uIt is not pretended that the present conveyance is of any effect except as evidence of an agreement that a court of equity will enforce; and in this respect it is nugatory, because the law adjudges it to have been made at the instance of the husband. If chancery will enforce such an agreement, I can imagine no barrier that can be erected against the encroachments of the husband, or for the protection of the wife. It fritters away the statute and makes it a dead letter.” See also Lane v. Dolick, 6 McLean., 200.
We are aware that an act of the Seventh General Assembly,
However effectual this statute may be in its application to deeds which are operative as conveyances without acknowledgments, the acknowledgment being necessary only to admit the conveyance to record, and to constitute constructive notice of its execution, it can not render a deed valid, which was executed in such manner as to be void. This is clear upon principle, and it has been judicially determined.
In Good v. Zercher, 12 Ohio, 364, respecting this question the court held as follows: “ Under our constitution the legislature has not power to enact laws that shall pass the land of a married woman by an instrument not binding upon her at the time of its execution. The act passed March 9th 1835 to render valid acknowledgments certified prior to that time, which omit to state that the deed was read, or contents made known to the wife, is unconstitutional, inoperative and void as to deeds executed by married women under the act of 1820, requiring such deed to be read or contents made known.” The same point was ruled in Russell v. Rumsey, 35 Illinois, 362. The reasoning of these courts is equally applicable to our constitution.
2. The omission of the name of the wife in the body of the deed is equally fatal to it as a conveyance of her estate.
In Sharp v. Bailey, 14 Iowa, 387, it was held that a deed executed substantially in the form of the one under consideration, was ineffectual as a conveyance of the homestead, and the court said: “If the. subject of the conveyance was her separate property, it seems to us that there could be no fair ground for claiming that she had parted ■with it by such a deed.”
In Davis v. Bartholomew, 3 Ind., 485, the deed was as follows: “This indenture made the 3d of November, 1829, between Jeremiah Bartholomew and James Davis, of the first part,” etc., * * * * *. And the said Bartholomew and Davis and their wives do, for their heirs, covenant, grant, and agree to and with the said Canada Eink, etc., that they, the said
“ In witness whereof the said Bartholomew and Davis, and their wives have hereunto set their hands and seals, the day and year above written.” Signed
“ Jeremiah Bartholomew, Rebecca Bartholomew.
James Davis, Marx Davis.”
The certificate of acknowledgment recited that the said Rebecca and Mary declared that they signed said deed without compulsion, and that they relinquished all their right and claim to dower. ' It was held that Mary Davis had not conveyed her dower, and that she was entitled to have it assigned to her. After determining that her name did not appear in the granting clause,’ and that it was used only in connection with the covenants in the deed, the court employed this language:
“ The effect of this deed, therefore, is the same as if the complainant had not been mentioned at all in the body of it. Her signature and seal are to the deed, but they are not sufficient of themselves to bar her claim. Cox et al. v. Wells, 7 Blackford, 410. Nor is the complainant barred of her dower by the circumstance that the justice’s certificate states that she acknowledged before him that she had voluntarily relinquished her right of dower. The deed itself must contain the words necessary to constitute a conveyance or release, or the claim of dower is not barred.” Citing 4 Kent’s Commentaries, 59. In Carr v. Williams, 10 Ohio, 305, it was held that a deed in the body of which the names of the grantors were not inserted, the blanks in the printed form not being filled, could not in equity be corrected against the wife.
In McFarland v. Febiger's heirs, 7 Ohio, 194, a deed as follows: “ This indenture between S. McFarland and Catharine McFarland, his wife of the first part, and the Bank of the United States of the second part, witnesseth, that S. McFarland for and in consideration,” etc., “hath sold,” etc., running all through the operative parts as the single acts of S. McFarland, and concluding thus: “ In witness whereof said Stephen and Catharine have hereunto set their hands and seals,” signed
In Cincinnati v. Newell's heirs, 7 Ohio State, 37, it was held that, where the wife is owner in her own right of a portion of the premises conveyed, and joins her husband only in the testatum clause and in the execution of the deed, the husband’s title alone passes.
In Bruce v. Wood, 1 Metcalf, 542, it was held that, where a husband by a deed in his own name only, conveys his wife’s land in fee, and she merely affixes her signature and seal to the deed in token of her relinquishment of all her right in the bargained premises, her right in fee is not thereby conveyed, and after the decease of her husband, she may maintain a writ of entry, on her own seizin, to recover the land.
In Callin v. Ware, 9 Mass. 218, where to a conveyance of land by a husband the wife affixed her signature and seal, her name not being otherwise mentioned in the deed, it was held that she had not thereby barred her right of dower. In Foster v. Dennison, 9 Ohio, 121, it was held that a deed by a husband and wife, in which the wife is named only in the clauses relinquishing dower, though duly executed and acknowledged, operates only upon her dower, and will not pass any separate interest she may have in the estate. See also Payne v. Parker, Fairfield, 178. In Purcell v. Goshorn, 17 Ohio, 105, it was held that a feme covert, owner of the land in fee, does not pass her title by a deed executed by husband and wife, and that, though it was the intention of husband and wife to execute a deed conveying the fee, a court of equity will not, as against the wife correct the mistake in the instrument of conveyance, and compel the execution of a perfect deed. See also Grapengether v. Fejervary, 9 Iowa, 163-173.
¥e have found no adjudication in conflict with the general effect of these decisions.
They settle, so far as any question can be settled by precedent, both that the omission of the wife’s name in the body of a deed, is fatal to it as a conveyance of her- estate, and that equity will not correct the instrument, nor grant any relief, as against her.
This statute recognizes the existence, in this State, of the common law rule respecting the deed of a married woman, and expressly limits the power therein conferred to correct her conveyances, to those executed after its enactment.
The deed being insufficient to pass the estate of Rebecca Heaton, the lack of power to correct her conveyance must be conclusive against appellant, unless the plaintiff’s cause of action is barred by the statute of limitations.
This statute seems so plain as not to require the aid of judicial construction.
We are referred, however, to section 3569 of the Revision!, providing that an action for the recovery of real property “ may be brought against any person acting as owner, landlord, or tenant of the property claimed.” And it is urged that, as the defendant has always had a tenant in possession of the property, against whom an action might have been brought, the cause of action of plaintiffs is barred, notwithstanding the non-residence of defendant..
There are several objections to this view.
First: The language of the statute is general, applying alike •to any case of non-residence. A case like the present is one
Second: The statute of limitations in force at the time this statute was enacted, chapter 94, Eevised Statutes of 1843, section 8, excepts real and possessory actions from the provision that the statute shall not run during the time the defendant shall be out of the Territory. The failure to incorporate this provision into the subsequent statute is evidence of an intention that the subsequent legislation should have a different effect, and receive a different construction.
Third: In an action for the recovery of real property, the plaintiff may recover the damages occasioned by the detention. It is evident that in many cases full damages could not be recovered of the tenant, and that the plaintiff could obtain adequate relief only in an action against the person claiming the adverse title. Hence, although an action might be brought against the tenant, the plaintiff should not be compelled to do so in case the real defendant is a non-resident.
In Wilson v. Appleton, 17 Mass, 179, which was an action of assumpsit, the defendant pleaded the statute of limitations. The plaintiff replied that, at the time the cause of action accrued, he was, and ever since had been, beyond sea. The defendant rejoined that within six years after making the supposed promises, and ever since, the plaintiff had an agent within the - commonwealth, authorized to demand and receive his supposed debt. To this rejoinder the plaintiff demurred. The court said: “As to the fact averred in the rejoinder, that the plaintiff had an agent in the commonwealth during his absence, this might be a reasonable exception to the saving, if the legislature had seen fit to introduce it. But such a case not being provided for, it is not for the court to legislate on the subject.” See Angel on Limitations, §§ 204, 205 and 207. We are clearly of opinion that the defendants’ continued non-residence prevents the operation of the statute in his favor. It follows that the judgment of the court below must be
Affirmed.
Dissenting Opinion
dissenting. — The original opinion of the majority, in this case, was based upon the points made by counsel in the canse; and. it held that the court could not correct the error in the deed. The following dissenting opinion was prepared to file in connection with that original opinion. The point that the acknowledgment was defective was never made by counsel, either in the court below, or in this court. The concluding paragraph of this dissenting opinion, presents my views upon that question. There is no controversy respecting the real facts of the case. In this opinion some of the- facts, omitted from the statement in the majority opinion, are- stated fully. The-facts are as follows: This is an action for-the recovery of real property, the east half pf the north east- quarter of section thirty-four, township seventy-eight, range two west. The land was entered by Peter Fryberger, May 22, 1839, who gave the same, by parol to his daughter, Bebecca Heaton, wife of Silas Heaton, prior to 1845, but did not convey the same to her till April 29th, 1853. The-defendant, who was a brother of Bebecca,purchased the land of Bebecca and Silas-. Heaton, and paid them therefor one hundred dollars, and at the same time they made to him a deed for it as follows: “This indenture made this 17th day of April, in the year 1845, between Silas H. Heaton, of the county of Muscatine and Iowa Territory of the first part and Moses Fryberger of the- county of Muscatine of the second part, witnesseth: That the said |party of the first part for and in consideration, etc., (being regular in form and with covenants of warranty, and concluding.) .In testimony whereof the said party of the first part Time- hereto set. their hands and seals on the day and year first above written.” This deed was duly signed and sealed by both Silas and Bebecca Heaton, and was also duly acknowledged by “ the persons whose names-are subscribed to the foregoing instrument as parties thereto,” and was also recorded the next day. Bebecca Heaton died in 185.7, and Silas Ii. died in 1869. Plaintiffs are their children, and claim the land as heirs of their mother.
The defendant, by answer, pleaded a general denial, and the statute of limitations, and for equitable defense set up a mistake in writing the- deed whereby the name of Bebecca Heaton
The testimony in the case is all before us, and from it there is scarcely room for any reasonable doubt that the defendant purchased and paid for the land in controversy, and that it was the purpose and intent of both of the plaintiffs’ ancestors to convey'the same fully and absolutely to him, and that the name of Eebecca Heaton was omitted from the deed by reason of a mistake. The single question, therefore, presented upon the equitable defense, is, whether a court of equity, has the power to correct such a mistake in the deed of a married woman, made prior to the enactment of our statute, which declares that “a married woman may copvey her interest in real estate in the same manner as other persons.” (Eevision, § 2215). There is no controversy between counsel, respecting the sufficiency of the execution and acknowledgment of the deed by the wife, or that it would have conveyed the absolute title, fully and completely, if the name of the wife had been inserted in the deed immediately before or after the name of the husband.
At the common law, the legal existence' of the wife was so -completely merged in the husband as that she could make no contract, nor could she bind herself or property by any obligation. Hence her conveyance of her own real estate was absolutely void — a nullity. 'Under the influences of a higher civilization, the power or authority to convey with certain limitations and guards has been conferred upon the wife, and enlarged from time to time. Primarily, she was empowered
Unless the deed contains such words as are necessary to pass the estate of the wife, it will not operate to convey her title or interest, even though she join in its execution and acknowledgment. McFarland v. Febiger, 7 Ohio, 194; Cincinnati v. Newell, 7 Ohio St. 37; Bruce v. Wood, 1 Mich. 542; Catlin v. Ware, 9 Mass. 218. And if she joins in- such deed which states that she relinquishes her right of dower, it will not affect her fee title therein.' Foster v. Dennison, 9 Ohio, 126; or her homestead right, Sharp v. Bailey, 14 Iowa, 387. See also, Mayo v. Feaster, 2 McCord, Ch. 137; Hughes v. Wilkinson, 21 Ala. 296; Payne v. Parker, 1 Fairf., (10 Me.) 178.
9.-: equianil wlfe.and And it has been a well settled rule under these statutes, that a mistake in the manner of the execution or acknowledging of deeds by the wife, cannot be corrected in equity. Martin v. Dwelly, 6 Wend. 9; Butler v. Buckingham, 5 Day, 492; Grapengether v. Fejervary, 9 Iowa, 163; Carr v. Williams, 10 Ohio, 305; McFarland v. Febiger, 7 Ohio, 194; Wilkinson v. Getty, 13 Iowa, 157. And this, for the plain reason that a mistake in the manner of executing or acknowledging a deed by a married woman, amounts to a failure to execute it at all. That is, unless she complies with the statute, she has not executed the deed, for she has no power or authority to execute it in any other way. A failure to
It is upon this principle that courts of equity have ever refused to interfere and correct very manifest mistakes in the execution of conveyances by married women. They have, in substance, said, that a failure to comply with the mode prescribed by statute for the execution of such instruments by married women, whether it resulted from mistake, oversight, or purpose, was, in legal effect, a failure to execute it; and the instrument, not being executed by her, did not bind her, and 'there is no power in a court of equity to execute the contract for. her, or to compel her to execute one. She has power to execute it in a particular way, and until she does so execute it she has not executed it at all, and is not bound by it. But when she does execute it in the manner pointed out by statute, she is as effectually bound by it as an adult male. 'And, if in reducing the contract to writing, or in drawing it up, there has been a mistake, a court of equity possesses just as plenary ¡Dower to correct such mistake as it does to correct a mistake
If, in' the case before us, the land had, by mistake, been described as the west half of the section, instead of the east half, the deed being otherwise complete, it seems to us there could be no reasonable doubt of either the power or the duty of a court of equity to correct the mistake. The right and duty of a court to correct the mistake in omitting the'name of the wife from the body of the deed, rests upon the same principle. The effect of either mistake is precisely the same, to-wit: no title passes to the grantee. The right to correct either mistake rests upon the most solid reason; and the duty to do it rests upon the most unquestionable equity. McGall v. McCall, 3 Day, 402.
There are no cases which have fallen under our observation, that are in direct conflict with the foregoing views, unless it may be the .case of Purcell v. Goshorn, 17 Ohio, 105, and the case of Moulton v. Hud, 20 Ills. 137; and in this last case the fact of mistake was denied by sworn answer, and no evidence of it was before the court, so that the question was not properly pu-esented; and besides this, the cases cited do not support the ruling. In the case of McFarland v. Febiger, 7 Ohio, 194, a suit in equity for dower, the wife, who was not owner of the fee, and whose name was not contained in the granting clause of the deed, nor was there any relinquishment of dower, joined her husband in its execution. In,answer to interrogatories by the grantee she testified “that she was apprized before she executed the deed, that it was insufficient to deprive her of her dower, and that she executed it in this belief, and would not have executed it at all had she considered it as extinguishing her rights.” The court held that the deed did not bar her dower. In a note to this case by the editor of a late edition, M. E. Curwen, Esq., it is said: “ The profession, I believe, have not generally been disposed to put so favorable a construction on the complainant’s case, here
In the case referred to in the note, Purcell v. Goshorn, the court concludes its opinion with this sentence: “ But all this, we think, does not prove that here is only a clerical mistake which needs to be rectified.” And in the case of Carr v. Williams, 10 Ohio, 194, which was one of the efforts to break down the decision in McFarland v. Febiger, the court refused to correct the mistake on the ground that the mode prescribed by the statute for executing the conveyance had not been complied with, (p. 310). And while we regard that view of the case as quite too narrow, we confess that it puts the decision upon a very tenable basis.
The act of the Ohio legislature was passed April 17, 1857, and provided that the courts of the State “ shall be authorized and empowered to correct, amend and relieve against any errors, defects or mistakes occurring in the deed or other conveyance of any husband and wife heretofore or hereafter to be executed, and intended to convey or incumber the lands or estate of the wife, or her right of dower in the lands of her husband, in the same manner and to the same extent as the said courts are or shall be authorized or empowered to correct errors, mistakes, or defects in the deeds of conveyance of any other persons.” The act of the Iowa legislature became a law March 8, 1858, and is a literal copy of the Ohio act except the words “heretofore or,” as above italicised, are omitted. Rev., § 2257.
After the enactment of the Ohio statute, the same case came before the' Supreme Oour.t of that State, see Goshorn v. Purcell, 11 Ohio St., 641, and the chief, and really the only point considered by the court, was, the constitutionality of the retrospective clause of the act. The court held it constitu
In this view, it becomes wholly unnecessary to notice the question made lipón the statute of limitations.
It seems also, to me, that if it' is determined to originate here such technical question in an equity cause, and upon which counsel have made no point, at least the cause should be set down for re-argument, and a fair opportunity allowed for the discussion of the question. This is especially so, under our rules requiring a printed abstract, since the omitted words may have been dropped for brevity or other cause, or, perhaps there is no defect, in fact, in the acknowledgment, and since no question was made upon it, no care or thought was taken as to the abstract of it. But further than this, and upon the question of practice, it seems to me that this court has no rightful authority to originate the question, and that it could not now be made even by counsel. The deed was offered in evidence by the defendant, and no objection thereto was made by the plaintiff. Having made none in the court below, none can be made here. The objection here raised by the court, goes'to the sufficiency of the execution of the deed, and by every rule of practice, that objection must be made when the instrument is offered in evidence. If not made then, it cannot afterwards be made even in the same court. The legal effect of the deed may afterwards be considered, but its execution cannot be questioned; and this objection here, raised goes only to the sufficiency of the execution 'of 'the deed by the wife. Hence this
Eor these reasons I think it is wrong in equity and in law, to originate the technical question and decide the case upon it. -Upon the other ground the judgment should be reversed, and justice thereby done; but the majority say it must be
Affirmed.