Muir v. Galloway

61 Cal. 498 | Cal. | 1882

The Court:

1. The orders of the Judge did not extend the time for preparing and serving statement “more than thirty days.” (C. C. P. 1,054.) The last day of the period of extension fixed by one of the orders being Sunday, it should be “ excluded.” (CF. C. P. 12.) That is to say, it is not. to be computed as any portion of the time granted by the order, but is a supplementary day superadded by law.

2. The acknowledgment by Mrs. Jane T. Galloway of the execution of her deed of March 13,1854, is in words and figures following:

“ State of California, ) City and County of San Francisco, j ss"

“ On this thirteenth day of March, A. D. 1854, before'me, a Notary Public in and for said county, personally appeared Joseph Galloway and Jane T. his wife, to me severally known to be, the persons described. in, and who executed the within conveyance, and they severally acknowledged to me that they had executed" the same freely and voluntarily, for uses and purposes therein mentioned; and the said Jane T., having been by me made acquainted with the-contents of the said deed, on a private examination, separate and apart from her said husband, acknowledged to me that she had executed said deed freely and voluntarily, without any fear, compulsion or undue influence on the part of her said husband, and that she did not wish to retract the execution of the same.

“ In witness whereof .1 have heretp set my hand and official seal.

“[Seal].

Gilbert A. Grant,

“ Notary Public.”

When the acknowledgment was taken the Act “concerning conveyances,” of April 6, 1850, was in force. (Stats. 1850, 249.) The 23d section of that Act reads as follows:

“ The certificate shall be in the form, heretofore given, and shall set forth that such married woman waspersonally known to tifie, officer 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 a credible witness, whose name shall be inserted in the certificate, and that she was made acquainted with the contents of such conveyance, and acknowledged, on examination apart from and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. Every certificate which substantially conforms to the requirements of this Act shall he valid.”

The only departure from the form prescribed by the statute in the acknowledgment, necessary to be considered, consists in the substitution of the words “on a private examination separate and apart from her husband,” for “ on an examination apart from and without the hearing of her husband.”

The “examination” mentioned in the statute and acknowledgment means an inquiry in response to which the married woman shall declare that she has executed the deed “freely and voluntarily,” etc. Such an examination to be “private” must necessarily be “ without the hearing of her husband.” But all doubts are removed by the certificate of the officer. The private examination was “ separate and apart from her husband.” It seems to us that it would be to give a strained and unnatural signification to the words employed to say that a private examination separate and apart from the husband might have been within his hearing.

The Court below erred in sustaining the objections to the deed.

Judgment and order reversed, and cause remanded for a new trial