28 Vt. 685 | Vt. | 1856
The opinion of the court was delivered by
Several questions have been raised during the argument of this case, some of which, it is unnecessary, at present, to decide. If the plaintiff’s title to this land is sufficient to enable her to recover its possession in the action of ejectment, yet, as those under whom the defendant acted were, and for a long .time had been in the actual adverse possession of the premises, she cannot sustain an action of trespass on the freehold for cutting the trees from which the wood in question was derived. Whether her title to the land would vest in her a general property in the wood, after it had been severed from the freehold, and draw with it that constructive possession which will enable her to sustain this action, is a question not necessary now to decide. There are obviously
In relation to the deed of Charles Pratt and his wife, the present plaintiff, we have no doubt that it is inoperative and void as to her, and that she is now clothed with the same rights she would have had if the deed had not been executed. . The statute under which that deed was executed required an acknowledgment by the wife, separate from her husband, that she executed the deed freely, and without any fear or compulsion from her husband; — not that separate certificates of that acknowledgment are necessary, but that those facts were acknowledged by her, separate from her husband, and away from his actual presence. That fact must be stated in the certificate of the magistrate, and recorded with the deed, otherwise the statute itself declares the deed null and void. The acknowledgment of the deed in this case has no certificate that it was made separate and away from the actual presence of the husband, arid, for that reason, by the express provision of the statute, the deed must be treated as inoperative and void, as to her. The case of Elliott v. Piersol et al., 1 Peters 328, is in point on that question. Slade’s Comp, of Stat, 171, § 12.
The plaintiff, however,, could make no claim to the land during her coverture, for the deed was good as conveying the life estate of her husband. After the death of her husband, on the 17th of August, 1848, her right to the land revived, and, as against her, no title by adverse possession has been acquired; for, during her coverture, she was excepted from the operation of the statute.
The judgment of the county court must be reversed, and the case remanded.