7 W. Va. 569 | W. Va. | 1874
On the 26th day of March,' 1872, the plaintiff filed her bill in the clerk’s office of the circuit court of Wood county, praying an injunction to restrain George B. Neal, the trustee named in a deed of trhst purporting to have been executed by the plaintiff and her husband, ■James A.- Leftwich, from selling the property therein •conveyed, to secure the payment of a single bill, made by the said James A. Leftwich, and payable to Daniel
Copies of numerous letters of the plaintiff, and also the depositions of witnesses, are found in the record, tending to show acknowledgments on the part of the plaintiff of the binding character ’ or efficacy of said ■deed, upon herself. We have stated all of the pleadings and history of this case, that appears to be necessary to •a proper determination of the questions arising upon the record.
Upon the 26th day of March, 1873, the case coming on to be heard upon the pleadings, exhibits and evidence, the injunction theretofore awarded in said cause, enjoining a sale of the property by the trustee, was dissolved until the further order of the court; and from, this decree of dissolution, an appeal is taken to this Court.
The fourth and fifth sections of chapter seventy-three, prescribe the requisites to give validity to such deeds, and a substantial compliance with these provisions, is essential to enable a married woman to convey her interest in real estate, she having no power to make such conveyance-at common law.
The feme covert is to appear before an officer authorized by said fourth section for the purpose, and who shall certify that she was examined privily and apart from her husband, and having the writing fully explained to her, that she acknowledged the same to be her act, and declared that she had willingly executed the same, and does not wish to retract it. Section five provides when the privy examination, acknowledgment and declaration of a married woman shall have been so taken and recorded in the Recorder's office, or when the same shall have been so taken and certified as aforesaid, and the writing to which such certificate is annexed, or on which it is, shall have been delivered to the proper Recordér and admitted to record, as to the husband as well as to the wife, such writing shall operate to convey from the wife her right of dower, or any interest she may have in real estate. It has been repeatedly held, by decisions in "Virginia and Kentucky, and other states, that the foregoing certificate required by the statute, must be substantially, though not literally, complied with; that if the same words used in the statute are not employed, that there shall be words of equivalent import, and that no requirement of the statute shall be omitted. Though the form of the certificate is given, if it is to the same effect, though not in the same words, it is sufficient. But the
In the certificate now under consideration, the declaration of the wife that she had willingly executed the deed, is entirely omitted, but it does contain the words,, “that she did not wish to retract it.” The certificate recites that she declared the same to be her act, and this is required by the statute ; but this by no means implies ’a compliance with the additional requirement of the statute immediately following, to-wit: “and declared that she had willingly executed the same, and does not wish to retract it.” If authority is needed on this proposition, it is found in Blackburn’s Heirs v. Pennington, 8 B., Mon. (Ky.) 217. There the certificate showed that the grantors, including the wife, acknowledged the deed to be their act, and that she was privily examined. But the court held that this certificate must show that her ac-knowledgement was voluntary, and that it could not be inferred from the fact of her privy examination; in other words, a certificate merely, that a deed was acknowledged to be her act, did not prove or show that it was a voluntary acknowledgment. And if, under our statute the fact that a certificate showing that a feme acknowledged a deed to 'be her act, does not imply a compliance with the further requirement of the statute that she willingly executed the same; that these are in fac equivalent expressions; no more, we think, does the fact that the words, that she did not wish to retract it, found in the certificate, prove or show, that she willingly executed the deed. We do not think that it can be necessarily inferred because a feme acknowledges that she docs not wish to retract what she has done, that, therefore, she •willingly executed the deed. The execution might have been at one period and under duress or coercion, while the acknowledgement that she did not wish to retract it,
The privy examination, acknowledgment and declaration of the feme must not only be certified, but duly recorded to make the deed operative. The sufficiency of the certificate can only be determined by an inspection of the record, and if the record does not disclose the fact that the requirements of the statute have been sub-’ stantialty complied with, the deed, as to the feme, is void. It has been claimed here that the letters of the plaintiff and other evidence found in the record tending to show that the plaintiff admitted the validity of the deed, should be considered by the court in this case. We think the testimony wholly inadmissible for the purpose. In the case of Elliott v. Peirsol, 1 Peters (Sup. Ct. U. S.) 328, it was expressly i-ielu that the privy examination and acknowledgment of a deed of feme covert, so as to pass or convey her estate, could not be legally proved by jiarol testimony. “What the law requires to be done and appear of record, sajes the court, can only be done and made to appear by the record itself, or an'exemplification of the record.” To the same effect is the case of Barnett v. Shackleford, 6 J. J. Marsh. (Ely.) 532. In that ease the grantee in a deed filed a bill against a widow, who when a feme covert had executed and acknowledged a deed, to which there was a certificate affixed, but the acknowledgment or certificate was defective, and it was sought to cure the difficulty by the aid of parol evidence. The court say: “Parol evidence is not sufficient; it can only be proved by the record. If parol evidence
It has been claimed that it would be inequitable, under the evidence contained in the record, to give the relief to the plaintiff claimed in her bill. But we apprehend that unless positive fraud, on her part, in the procurement of this loan, for which her husband’s note was given, should be established, as entering into the original transaction, she cannot be estopped from repudiating this defectively acknowledged deed. Bigelow on Estop-pel, pp. 488-9 and 90. And even fraud in Massachusetts has been held insufficient for this purpose. See 10 Cush. 276.
The decree of the circuit court made in this case on the 26th day of March, 1878', is reversed and annulled, with costs to the appellant, and this Court proceeding to enter- such decree as the court below should have entered, doth adjudge, order and decree, that the deed mentioned and described in the bill and proceedings be, and the same is, hereby declared null and void as to the plaintiff, and that the trustee therein named be perpetually enjoined and restrained from selling any estate or interest in the lot or property in said deed, bill and proceedings mentioned and described.
Decree Beversed and Injunction Perpetuated.