Waddell v. Weaver's Administrators & Heirs

42 Ala. 293 | Ala. | 1868

A. J. WALKER, C. J.

The statute in force, when the deed, which the bill seeks to reform was made, required an acknowledgment by a feme covert of her deed, on private examination apart from her husband. — Clay’s Digest, 155, § 27. It declares that no estate of a feme covert in lands lying in this State, shall pass by her deed without a previous acknowledgment, before some one of certain specified officers, and that the officer’s certificate of such acknowledgment should be written on or under the deed. It is impossible to evade or construe away the emphatic declaration, that a married woman’s estate in land shall not pass -without an acknowledgment that she signed, sealed, and delivered the deed. It is not enough that the acknowledgment is made in reference to the power of attorney under which the deed is made. The acknowledgment must relate to the deed. This is made clearer by the requirement, that the certificate should be written on or under the deed. The non-residence of the grantor does not dispense with the necessity of the acknowledgment. The case is within the statute, if the land is within the State. Provision was made by law for taking the acknowledgment of such conveyance in foreign countries. If the deed had been acknowledged in pursuance of that provision, it would have been good.

It is suggested, that the interest here was a separate estate, by the terms of the conveyance to the feme covert, and that the statute ■ does not apply to deeds conveying such estates. No reason for the exemption of such estates from the operation of the law is perceived. The language is broad enough to embrace it. Formerly, feme covert conveyed their lands by fine and recovery. A proceeding-analogous to our acknowledgments have been substituted in England for the conveyance by fine and recovery. Under both systems, the separate estates of married women were required to be conveyed in the same manner with their other estates. — Cord’s Rights of Married Women, §408; Johnson v. Yates, 9 Dana, 500; 2 Bright on Husband and Wife, 224; 1 Leading Cases in Equity, t. p. 507, m. p. 402. A different rule might however prevail, if there was an express power of conveyance in the deed under which the feme covert held.

Weaver derived no title by the deed. It was wholly void, as to the feme covert, even though properly executed by her attorney in fact. The bill, therefore, contains no equity, and the chancellor’s decree must be reversed and a decree here rendered, dismissing the bill for want of equity, at the complainant’s cost.