Williams v. Cudd

26 S.C. 213 | S.C. | 1887

The opinion of the court was delivered by

Mr. Justice McGowan.

Mrs. Eliza T. Bishop, while the wife of H. J. Bishop, was seized of a small tract of land containing 190 acres, and husband and wife agreed to sell the land to one Alexander Wingo; and on August 20, 1860, they joined in the execution of a conveyance to him for full and valuable consideration. More than seven days after, viz., on September 7, 1860, Mrs. Bishop signed an instrument, purporting to be the relinquishment of her inheritance, which was attached to the deed, and was as follows:

State oe South Carolina. \

Spartanburg District. j

I, John W. Carlisle, notary public & ex-off. mag., do hereby certify unto all whom it may concern, that Eliza T. Bishop, the wife of the within named H. J. Bishop, did this day appear before me, and upon being privately and separately examined by me, did declare that she did, at least seven days before this examination, actually join her husband in executing such release, and did then, and stilí freely and voluntarily and without any manner of compulsion, dread, or fear, of any person or persons whomsoever, renounce, releáse, and forever relinquish unto the within named Alexander Wingo, his heirs and assigns, all her interest and estate of, in, or to all and singular the premises within mentioned and released. And further, said Eliza T. Bishop did declare that the within deed or conveyance was positively and bona fide executed at least seven days before her present examination.

Eliza T. X Bishop.

Given under my hand and seal this seventeeth day of September, A. D. 1860.

John W. Carlisle, [l. s.] Not. Pub. & Ex Off. Mag.”

The purchaser' Wingo went into possession, but afterwards dying intestate, the land was sold for partition, and at that sale the defendant, Cudd, became the purchaser and is now in possession of it. In the meantime (1881), Mrs. Bishop died, and this action was brought by her heirs (except her husband who survived her) to recover from the defendant two-thirds of the land and for partition among themselves, upon the ground, as they allege, that the paper executed by Mrs. Bishop on the deed to Wingo, purporting to be the relinquishment of her inheritance, was not such a relinquishment as the law required, and, being absolutely void, did not convey her estate in the land, which at her death descended to her distributees; one-third to her surviving husband, and the other two-thirds to her other heirs, the plaintiffs. The defendant, among other things, claimed that he purchased the land for full value, and that the relinquishment, having been carefully prepared by a lawyer, was regular, valid, and binding; but if not, he prayed the court to reform it, so as to make it conform precisely to the requirements of the statute and the intention of the parties.

It was referred to J. K. Jennings, Esq., as referee, who took the testimony and reported that there was nothing in the evidence to show that there was any defect whatever in the execution and delivery of the deed; and that the relinquishment was in the exact form laid down by “Thornton on Conveyancing,” and a substantial compliance in every particular with the statute of 1795, with the exception of the omission of the word “inheritance.” He held, under our decided cases, that the omission was a fatal defect, but as it was clearly a mistake, caused by taking the form from a law book, and there could be no doubt as to the intention of the parties, equity could and should reform the instrument so as to conform to the terms of the law. Upon exceptions to this report the cause was heard by Judge Hudson, ■who reversed the report of the referee, ordered the writ of partition to issue, and recommitted the case that enquiry might be make as to the rents and betterments, &c.

The defendant appeals to this court on the grounds: “I. Because the Circuit Judge erred in not holding that the relinquishment of inheritance by Eliza T. Bishop, in 1860, was a good relinquishment and that the act had been sufficiently complied with. II. Because the Circuit Judge erred in not holding that the Court of Equity should consider that done, which was intended to be done, and that, as it clearly appeared from the evidence that Mrs. Bishop intended to relinquish her inheritance, she did in fact and in law relinquish her inheritance, and her heirs have no interest now in the land. III. Because the judge erred in holding that the.Court of Equity has no power to so correct the relinquishment of inheritance as to make it conform to the clear intention of the parties to it. V. Because the judge erred in not holding that the plaintiffs, heirs at law of Eliza T. Bishop, are estopped by the conduct of their mother from claiming any part of the land in dispute. VI. Because the judge erred in holding that defendant was accountable for all rents and profits over and above the one-third actually used since the death of Mrs. Bishop,” &c.

This is certainly a hard case. It seems that the paper claimed to be a good relinquishment of inheritance by Mrs. Bishop, was prepared by an intelligent gentleman, a lawyer of good standing in his profession, who, in writing it, followed a form found in a law book; that the parties were not negligent or careless, but made proper efforts to have a legal and valid relinquishment prepared and executed, and no doubt thought they had accomplished that purpose. But the only question, which we can consider, is whether the relinquishment was actually made in conformity to the act upon the subject. At the time this transaction took place (1860), the disability of a married woman was general. She was incapable of binding herself by deed, unless expressly authorized so to do. The power by which a married woman could relinquish her inheritance in lands, was given by the act of the legislature, and, having no such right outside of the act, it could only be done by the authority of that act, and in the manner and to the extent prescribed by that act. “The right of inheritance of a married woman is protected with jealous vigilance by the law. She cannot be deprived of it, but by a scrupulous adherence to the statute providing the mode in which a married woman may part with her inheritance in lands.” Pitts v. Wicker, 8 Hill, 199.

It cannot be necessary now, to go into the question, whether in this State the relinquishment of the inheritance of a married woman in 1860, which omitted the word “inheritance,” was a full compliance with the act of 1795; for the authorities upon that precise point have been lately reviewed in the case of Parker v. Wingo, 19 S. C., 9, where it was held expressly, that in such an instrument, “the word ‘inheritance’ is essential under the act.”

But it is strongly pressed upon us that, this being a case for partition, the extraordinary jurisdiction of equity may be invoked to consider that done which was intended to be done, and to reform the instrument by adding the word “inheritance,” so as to conform to the requirements of the law. We regret to say that we know of no authority to do so, either in law or equity. If this were one of those cases in which the court may interpret executory contracts so as to effectuate the intention, there might be much force in some of the views presented in behalf of the appellant'. But clearly this is not one of the cases in which the intention of the parties is a controlling consideration. The question is not what was intended to be done, but sharply what was actually done.

It is true, according to-the authorities, that there are cases in which the Court of Equity will aid th’e defective execution of a power, provided the parties really intended to execute it, and only failed in a matter of form, and provided also that the power was created by a will, family settlement, or other similar instrument. But, as we understand it, the Court of Equity will not undertake to do so in respect to powers created by statute. “The doctrine is confined to powers created by the voluntary act of persons in wills, deeds, and settlements; it does not extend to those created and regulated by statute. The defective execution of statutory powers, in the failure to comply with the prescribed requisites cannot be aided in equity.” 2 Pom. FJq. Jur., § 287, and numerous authorities in note. “And, indeed, it may be stated as generally, although not universally true, that the remedial power of Courts of Equity does not extend to the supplying of any circumstance, for the want of which the legislature has declared the instrument void; for otherwise equity would, in effect, defeat the very policy of the legislative enactments.” 2 Story JEq. Jur., § 177, and note.

This is specially true in regard to statutory powers given to married women, who, outside of the enabling act, are entirely without capacity. “As it is incompetent to show by parol that all the requirements of the law were complied with by the officer talcing the acknowledgment, it follows that a Court of Equity has no power to act upon such evidence or to correct or amend a defective certificate. The sufficiency of the acknowledgment is to be determined solely by what appears upon the certificate. 2 Scrib. Dower, 344, 345; Stewart Husb. & Wife, §§ 376, 404, and notes; Knowles v. McCamly, 10 Paige, 342. In this latter case it was held, that “when the legal estate is in a feme covert, her deed or contract, conveying or agreeing to convey such estate, if not acknowledged by her according to the statute, is void in equity as well as at law,” &c.

The sixth exception complains that it was error to decree rents and profits for the year 1884, as Mrs. Bishop died in August of that year. It does not appear that the point was argued before the Circuit Judge, and it had better go back to the referee to be considered along with the other matters referred. In all other respects,

The judgment of this court is, that the judgment of the Circuit Court be affirmed.