19 S.C. 9 | S.C. | 1883
The opinion of the court was delivered by
This proceeding was commenced for partition of certain real estate in the possession of appellants, and thereupon a controversy arose as to the title, growing out of the following facts:
The land in question was devised by Samuel Brice to his wife, Nancy, for life, and at her death to his two children, Bachel and Elizabeth. Bachel intermarried with the plaintiff, James A. Wingo, and died intestate in 1864, leaving as hér heirs-at-law her husband and her three children, who are the plaintiffs in this action. Elizabeth intermarried with Noah Davis, who died since the commencement of this action, to which he was a party defendant, but an order has been taken, by consent, that “ the name of Noah Davis as defendant herein be struck out, and that the action do proceed as though he had never been a party thereto.” Nancy Brice, the life-tenant, died in 1877 and this action was commenced in 1879.
The appellants, Parker and wife, while not being able to show title in themselves, have undertaken to show that the title passed out of Bachel Wingo in her life-time, and hence that the plaintiffs, as her heirs, have no right to claim partition, and also that the title has passed out of the defendant, Elizabeth Davis, who
The Circuit judge held: First. That the deed to Vernon was insufficient to pass the title of Mrs. Davis, on account of two defects in the renunciation of inheritance: (1). That it was not taken by any officer authorized so to do; (2). That it did not comply with the requisitions of the statute, inasmuch as it did not purport to release “the inheritance” of Mrs. Davis, but only “all her interest and estate,” and, therefore, that Mrs. Davis, her husband having died, was entitled to her share of the land. ¡Second. He held that the deed from Nancy Brice, James A. Wingo and wife to Edwards, was not sufficient to pass the title of Mrs. Wingo on account of several defects- in the renunciation of inheritance endorsed upon it: (1). Because it was-taken by a notary public, who had not then any authority so to do; (2). That full seven days had not elapsed after the execution of the deed, before the renunciation of inheritance was taken, the deed having been executed on the fifth, and the renunciation taken on the 12th day of November, 1859; (3). The deed, with the renunciation of inheritance endorsed upon it, was never recorded until after the commencement of this action, and after the death of Mrs. Wingo, and of the grantee Edwards, and, therefore, that such of the plaintiffs as are the children
From the decree Parker and wife appeal on the following-grounds : That the Circuit judge erred, 1st. In holding that the deed of Noah Davis and wife to J. J. Vernon, executed in the State of Florida, and the renunciation of the wife “of all her interest and estate” before a justice of the peace in said State, was not sufficient to convey all the interest of the husband and wife in the premises. 2d. In holding that the deed of James A. Wingo and wife to O. E. Edwards, and the renunciation of inheritance by the wife, before a notary public, was not sufficient to convey all the interest of the husband and wife in the premises. 3d. In not holding that whatever interest James A. Wingo may have had in the premises was conveyed out of him by his warranty clause contained in the deed.
At the time the conveyances which are here brought into question were executed, a married woman could not convey her estate of inheritance unless she followed with scrupulous exactness the provisions of the statute conferring that power upon her. This will be seen by reference to the cases of Brown v. Spand, 2 Mill. Con. R. 12; Hays v. Hays, 5 Rich. 38; McCreary v. McCreary, 9 Rich. Eq. 34; McLaurin v. Wilson, 16 S. C. 402. As is said in Biits v. Wiolcer, 3 Mill 199: “ 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 land.”
The act of 1795, 5 Stat. 257, which was the law in force at the date of these renunciations, declared, in the most specific terms, the requisites necessary to a.valid renunciation of inheritance by a married woman, and the question for us to determine
First, as to the renunciation on the deed to Vernon. We are not aware of any statute which confers upon a justice of the peace of another State the power to take renunciations of inheritance of land in this State, and in the absence of any such statute, a renunciation taken by a justice of the peace in Florida, has no more force and effect here than if taken by any other officer, or even by a private citizen of that State. The only officers competent to take such renunciations are those named in the act of 1795, and as a justice of the peace of another State is not there named, his act in taking such a renunciation is a mere nullity.
Another defect in this certificate is that it does not purport to release Mrs. Davis’ “inheritance,” but only “all her interest and estate,” which may be something less than an estate of inheritance. The act of 1795 contains two distinct provisions— one by which a wife may renounce her dower, which is but a life-estate, and the other by which she may renounce and release her inheritance, the fee-simple. In the former, the words used are, “ all her interest and estate, and also all her right and claim of dower,” while in the latter the provision is for the release of “all her estate, interest and inheritance.” We think it plain, from what is said by Nott, J., in Brown v. Spand, supra, and by O’Neall, J., in Hays v. Hays, supra, that the word “ inheritance,” like the word “heirs” in a deed, is a material word, necessary to be used in order to carry the fee. We agree, therefore, with the Circuit judge, that Mrs. Davis, since the death of her husband, is entitled to her share of the land.
Next, as to the alleged renunciation of inheritance by Mrs. Wingo. The first objection urged against this renunciation— that it was taken by a notary public who was not one of the officers before whom the statute provided that renunciation of inheritance could be taken — we do not think well founded. It is true that a notary public is not one of the officers mentioned in section 2 of the act of 1795, but a justice of the quorum is there mentioned, and by the third section of the act of 1804, 5 Stat. 479, a notary public is declared to be, ex officio, a justice of
The next objection, however, is more formidable, and, in fact, is, in our judgment, fatal. It appears in this case, that the renunciation was taken within seven days, after the execution of the deed, and not “ after the expiration of seven days,” as the statute expressly requires — the deed bearing date on the fifth, and the renunciation on the twelfth of the same month; and we are unable to see by what authority we can dispense with this positive statutory requirement, by any forced construction. The deed having been executed on the fifth, and the law taking no account of fractions of a day, the renunciation could not legally be taken until after the expiration of seven days, and this could not be until after the expiration of the last moment of the twelfth, and hence if taken at any time during that day, it would be before, and not after, the expiration of seven .days. Bruce v. Perry, 11 Rich. 121.
Put there is still another fatal defect in this renunciation of inheritance. The statute requires that an addition to the certificate, shall “ invariably ” be made, to the following effect, to wit: “ That the woman did declare that the release was positively and bona fide executed at least seven days before such her examination.” No such addition Avas made to the certificate here in question, and, indeed, could not have been truthfully made, as the seven days had not expired, and certainly no court Avould undertake to dispense Avith that Avhich a statute declares shall “ invariably ” be done.
As to the other objection, based upon a failure to record the renunciation of inheritance during the life-time of the married woman, we do not think it can be sustained. It is true that the language used in the statute — “ Such renunciation shall not be considered as being complete or legal until the same shall be recorded ” — is very strong, but not stronger than the language used in the marriage settlement act, under which it has been held that such a deed is good Avithout being recorded, not only between the parties but also as to all persons having notice of it. Fowke v. Woodward, Spears Eq. 233; Gibbes v. Cobb, 1 Rich. Eq. 54.
The only remaining question is that raised by the third ground of appeal. We agree with the Circuit judge that, if the deed to Edwards was intended to be a simple power of attorney, the clause of warranty contained in it would not operate as a bar to the right of James A. Wingo to recover his share of the land as one of the heirs of his deceased wife; but that, if the deed was intended as an absolute conveyance, then such conveyance, by virtue of this warranty, would operate, by way of estoppel, as a transfer of the title subsequently acquired by him, upon the principles established by the cases of Reeder ads. Craig, 3 McCord 411; Harvin v. Dodge, Dudley 25, recognized in Starke v. Harrison, 5 Rich. 7.
If, therefore, the deed was intended as an absolute conveyance,
The judgment of this court is that the judgment of the Circuit Court be affirmed.