51 Ark. 419 | Ark. | 1888
Lead Opinion
The evil of the one case is as great as that of the other. As was said by the supreme court of Ohio in Goshorn v. Purcell, 11 Ohio St., 641, in construing a statute which authorized the courts to correct “errors, defects and mistakes” in the deeds of married women, “we should look rather to the principle of justice and right which the rule was intended to enforce by an application to past transactions, than the particular instances to which a like application had been made, though historically connected with the adoption of the rule.” And in that case it was said that the statute would apply to a conveyance perfect in form if it did not comply with the obvious intent of the parties. Our statutes were designed to operate upon the ceremony of the execution of conveyances — a subject wholly within the control of the legislature; and, as was said in Mrs. Richardson’s case, supra, the power which prescribed the form to be observed in the execution of a conveyance has said that a non-compliance with it shall be excused in order that the contract made by the parties shall have effect according to its purport. If that effect is given to the conveyance made by Mrs. Johnson in this case, it will bar her right of dower as effectually as though the officer had certified that upon privy examination she had acknowledged that she had signed the relinquishment of her dower for the purpose set forth in the deed.
The court did not err, therefore, in refusing the prayer of the complaint and the decree is affirmed.
Dissenting Opinion
DISSENTING OPINION.
I do not concur with the majority of the court in the opin-on delivered in this case. I expressed my views upon the questions decided in this cause, in a dissenting opinion de-ivered in McCranie v. Chase, which was orally decided at the present term. The facts in that case illustrate, and the opinion expresses my views in this case, so fully that I quote it at length. It is as follows:
I do not think that the deeds and acknowledgments relied on in this cause operate, under the curative statutes of this State, to divest Mrs. McCranie of her right to dower in the town lots in controversy. Neither the deeds nor the acknowledgments are defective. In the deeds she undertook to convey the lots in fee simple, as her own property. In two of them she covenants that she is seized of the lots in fee simple, and in the other mortgages them to secure the payment of her own individual indebtedness, contracted in the course of her separate business. In neither of them does she undertake, or intimate an intention or desire, to relinquish her right to dower. She acknowledged the execution of them as the law authorizes a married woman to do when she conveys her own lands. Now it is insisted that she be^came divested of her dower in the lots conveyed, under the •curative statutes, because she undertook to convey in fee simple.
One of the statutes relied on provides: “That all deeds and other conveyances, recorded prior to the first day of March, eighteen hundred and eighty-five, purporting to have been acknowledged before any officer, and which have not heretofore been invalidated by any judicial proceeding, shall be held valid to pass the estate which such conveyance purports to transfer, although such acknowledgment may have been on any account defective (excepting only cases where such conveyance shall have been executed by minors or in-sanes); provided that the records of such instruments shall be as valid as if they had been acknowledged according to-law.” I do not understand this statute to refer to any valid deed, properly acknowledged and recorded. The object of it, as I understand, is to make the defective acknowledgments and record of deeds which were recorded prior to the first of March, 1885, valid, and to give to them (the deeds) the same force and effect they would have had had they been properly acknowledged and recorded in the first instance.
The other statute is as follows: 1 ‘All conveyances and other instruments of writing authorized by law to be recorded, or which have heretofore been recorded in any county in this State, the proof of execution whereof is insufficient because the officer certifying such execution omitted any words in his certificate, or because such officer failed or omitted to attach his seal of office to stick certificate, or attached to any certificate any seal not bearing the words or devices required by law, or otherwise informal, shall be as valid and binding as though the certificate of acknowledgment or proof of execution was in due form and bore proper seal.” The object of this statute is to cure defects in the certificates of acknowledgments caused by the omission of words necessary to-certify the acknowledgment the parties to the conveyance or instrument of writing had obviously intended to make, and by the failure of the officer to attach a proper seal. It never was intended to supply a certificate of an acknowledgment which the parties never intended to make and never made.
The certificates of the acknowledgments of the wife, in this, case, are sufficient and valid. I give one as an illustration. It is as follows: ‘‘And I further certify that on this day voluntarily appeared before me Frances C. McCranie, wife to said J. S. McCranie, to me well known to be the person whose name appears upon the within and foregoing conveyance or instrument of writing, and in the absence of her said husband declared that she had of her own free will executed the same for the purposes and considerations mentioned and set forth, without compulsion or undue influence of her said husband. In witness,” etc.
But it is said that the deeds relied on purport to convey the lots in controversy in fee, and, therefore, divest her of her right to dower in the lots conveyed. The reason for this contention, as I understand it. is, in attempting to convey in fee simple, she must have intended to relinquish her dower as well as convey all interest and estate she had in the lots. But the reverse is true. In claiming dower she would necessarily assume that her husband was seized of an estate of inheritance in the lots; for she is only dowable in the real estate in which her husband was seized of an estate of inheritance during their coverture. She could not be entitled to dower in, and seized .in fee of, the same land at the same time. To claim one was to deny her right to the other. The deeds are proof conclusive, I think, that she did not thereby intend or undertake to relinquish dower.
The certificates of acknowledgment also prove that she did not intend to relinquish dower. She undertook to acknowledge the execution of the deeds in the manner prescribed by statutes enacted before the adoption of the constitution of 1868, which prescribed different modes in which deeds to the wife’s land and the relinquishment by the wife of dower in the husband’s land should be acknowledged. She acknowledged the deeds in question in the manner prescribed for the acknowledgment of the execution of deeds to the wife’s lands, thereby showing that she did not undertake to relinquish dower.
But it is said that this court held in Dutton v. Stuart, 41 Ark., 101, that “a wife can relinquish her dower by joining in her husband’s deed and acknowledging the relinquishment of dower in the form provided by the statutes, without any clause of relinquishment in the deed.” But the wife in that case appeared before an officer authorized to take acknowledgments, and in the absence of her husband declared that she had of her own free will signed and sealed the relinquishment of dower in the deed, for the purposes therein contained and set forth, without compulsion or undue influence of her husband. She joined with her husband in the deed and acknowledged the relinquishment of dower in the manner prescribed by the statutes; and this court held that this was a sufficient relinquishment, because the statutes provide that a "a married woman may relinquish her dower in any of the real estate of her husband, by joining with him in a deed of conveyance thereof, and acknowledging the same” in the manner prescribed by law.
In Meyer v. Gossett, 38 Ark., 380, this court said: “To make a valid relinquishment of dower, by the wife, in the real estate of the husband, she must join him in the deed of conveyance and acknowledge it in the manner prescribed by the statute. Gantt’s Dig., sec. 839. If she does not join him in the deed the acknowledgment is of no validity. Nor if she join him in the deed, is there a valid relinquishment of dower without a proper acknowledgment of its execution by her. Both are x-equisite to complete the conveyance on her part. Stidham and Wife v. Matthews, 29 Ark., 659; Witter v. Biscoe et al., 13 Ib., 423; McDaniel v. Grace, 15 Ib., 465.”
Neither the deeds nor the acknowledgments in this case evince an intention to relinquish dower. As I understand them and the facts in this case, there was no such intention.
The statutes of this State provide that ‘ ‘ a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form;’’ and provide that such legal form shall be “by such married woman joining her husband in a deed of conveyance pf the land and voluntarily appearing before the proper court or officer and in the absence of her husband declaring * * ’* that she had signed the relinquishment of dower for the purposes therein contained and set forth, without compulsion or undue influence of her husband.’’ Mrs. McCranie has not done so in this case, and I think that she is entitled to dower in the lots in controversy.