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examination to guard her against the presumed coercion of the husband being but an incident of the proceeding. Afterwards the statute abolished fines and recoveries,1 and conferred upon the wife the power to convey by deed, the title to be passed by virtue of that instrument instead of the judgment of the court. The incident of a privy examination was, however, continued in force, the continued protection of the wife being a matter distinct from, and not necessarily inconsistent with, the power to convey thus conconferred upon her. Then the question came before the courts, in cases where there had been a failure to comply fully with the statute in respect to the privy examination, as to the force and effect to be given to this requirement.2 Looking back for a rule of construction to the law as it aforetime was, when the wife had no power to convey at all, the courts decided that the matter of the privy examination was an absolute qualification and limitation of the statutory grant of power; an essential part of the transfer of title, and not an incident. They decided that the main design of these enabling acts was to protect the property rights of the wife, rather than to confer upon her a power,3 and not the acknowledgment of having done it, all its force and effect upon the party is produced." Milner v. Turner's Heirs, 4 Mon. 240, 246; and see Woodbourne v. Gorrell, 66 N. C. 82.

1 3 and 4 Wm. IV, ch. 74; 4 Kent's Com. 51, 52; Williams on Real Prop., 213, 214; Martindale on Conv., §182.

the

2 When the common law dogmas were to be invaded better policy would have been to abrogate the wife's common law incapacities entirely * and to have carried the legal reform to its

logical result. 3 Pomeroy's Eq. Juris., §1126.

3 Jones v. Crossthwaite, 17 Iowa, 393, citing Benton v. Beer, 35 Barb. 78; Howe v. Wildes, 34 Me. 566; Rodemeyer v. Rodman, 5 Iowa, 426; White v. Wager, 25 N. Y. 328.

So, it has been held that the deed of a woman made while sole cannot be recorded after her marriage without separate acknowledgment. Johnson v. Walton, 1 Sheed, 258; and the joinder of the husband at that time could as well have been also required, since the wife's deed, without his acknowledgment, is held ineffectual. Ludlow v. O'Neil, 29 O. St. 181, and his acknowledgment cannot be made after her death, though the deed was delivered in her lifetime. Sewall v. Haymaker, 127 U. S. 719; s. c. 8 Sup. Ct. Repr. 1348; Rorer v. Roanoke Bk., 83 Va. 589; s. c: 4 S. E. Repr. 720.

although the protection of the court in the process of fineand recovery must have been more effectual than that afforded by a privy examination before inferior and merely ministerial officers. They held that the privy examination. and due certificate thereof were absolutely essential to the validity of the deed; that these things were the essence and foundation of the deed;2 that it was not the fact of the privy examination merely, but the recording of the fact that made the deed effectual to pass the estate of a feme covert; that until her acknowledgment is duly made and certified, the title does not pass, not even an equitable title; that the instrument in such case is as destitute of vitality as so much blank paper, and that no acts of the wife in connection with such deed, not amounting to positive, affirmative fraud on her part, can create an estoppel against her so as to give it effect."

3

Such strict construction does not, however, obtain in all cases. Thus the Gen. Stats. of Ky., ch. 81, §17, allow the certificate of acknowledgment to be impeached for fraud, "or mistake on the part of the officer;" and it was held that the mistake contemplated by the statute did not apply to the form and manner of taking a married woman's acknowledgment, and the certificate being regular on its face, parol proof was not admissible to show that the husband was present, and that the officer failed to explain the deed to the wife. Cox v. Gill, 83 Ky. 669.

1 Goodenough v. Warren, 5 Saw. 494; McCormack v. Woods, 14 Bush, 78; Bank of Healdsburg v. Baillhache, 65 Cal. 406; s. c. 4 Pac. Repr. 106; Davis v. Agnew, 67 Tex. 206; s. c. 2 S. W. Repr. 43, 376.

2 Cross v. Evarts, 28 Tex. 502.

3 Elliott v. Peirsol, 1 Pet. 328, 339; Sewall v. Haymaker, 127 U. S. 719.

4 Mason v. Brock, 12 Ill. 273; s. c. 52 Am. Dec. 490; Looney v. Adamson, 48 Tex. 621; Knight v. Paxton, 124 U. S. 552; Harkins v. Forsythe,. 9 Leigh, 301; and numerous cases cited in note 2, §98, ante.

Bagby v. Emberson, 79 Mo. 139.

6 Mariner v. Saunders, 5 Gilm. 113; Drury v. Foster, 2 Wall. 24.

7 Berry v. Donley, 26 Tex. 746; Lowells v. Daniels, 2 Gray, 161; Williams v. Baker, 71 Pa. St. 476; Oglesby Coal Co. v. Pasco, 79 Ill. 164; Miller v. Shackelford, 3 Dana, 299; McBeth v. Trabue, 69 Mo. 642.

An action of ejectment against a naked trespasser will be defeated by a defective married woman's acknowledgment in the owner's chain of title, and no proof of proper acknowledgment or execution of the deed, even if available, can supply the defect. That such fatal effect should be given to an irregularity of this kind, does not seem to have been at first contemplated. See head-note to Fisk v. Miller, 13 Tex: 226; also

$102.

Continued-The Modern View.

The courts, however, in many cases where directly confronted with the injustice and absurdities arising from a practical application of these irrational doctrines, have revolted at the consequences, and again and again have refused to stand by the logical results and effect of the rules declared, and thus have involved themselves in numberless contradictions that judicial ingenuity cannot reconcile nor explain away. They have held that a wife's defectively acknowledged deed, otherwise styled blank paper, may by slight acts of her's as widow, be confirmed and so made effectual to convey full title; that where the wife is a party litigant and fails to make objection at the trial to the introduction in evidence of her defectively certified deed, that this blank paper will thereupon support a verdict for title in favor of the grantee;2 that her bond for title without any privy examination whatever may be enforced by the courts; that such bond conveys an equitable title, that will in a proper state of facts prevail over the legal title; that the statute does not declare void any other mode of conveyance by her than that prescribed;5 that she may be estopped by acts otherwise than affirmatively fraudulent, and that her deed with defective acknowledgment may be validated by subsequent McKinney v. Matthews (Tex.), 6 S. W. Repr. 793, and 10 N. E. Repr. 647.

1 O'Keefe v. Handy, 31 La. Ann. 832; Carter v. Strapham, Cowp. 201; post, $119.

2 Urquhart v. Womack, 53 Tex. 616. And constitutes color of title. Perry v. Perry, 99 N. C. 270; 6 S. E. Repr. 86.

3 Clayton v. Frazier, 33 Tex. 92; and see Homeopathic Co. v. Marshall, 32 N. J. Eq. (5 Stew.), 106.

4 Dalton v. Rust, 22 Tex. 134.

5 Womack v. Womack, 8 Tex. 397.

Dalton v. Rust, supra. The tendency of modern decision is to enforce estoppel against married women as against persons sui juris, even independently of legislation freeing their estates from all interest and control of the husband. 2 Pomeroy's Eq. Juris., §814, citing Bigelow v. Farr, 59 Me. 162; Brinkerhoff v. Brinkerhoff, 23 N. J. Eq. 477; Drake v. Glover, 30 Ala. 382; Connolly v. Branstler, 3 Bush, 702; McCullough v. Wilson, 9 Harris, 436.

legislation without impairing vested rights, for the reason that these matters of the acknowledgment are but mere formalities.1

$103. The Statutory Requisites.

The statutes that yet provide for a separate acknowledgment usually include these requisites-that the wife shall be examined separate and apart from her husband; that the instrument shall be explained to her; that she shall acknowledge its voluntary execution; and that she still assents to it, or does not wish to retract it. The statutes are not uniform in requiring each and all of these, especially the last one.2 These matters constitute the married woman's acknowledgment, as distinguished from ordinary acknowledgments; and the omission of any one of them, when required by the statute, is fatal to the deed.3 In a few cases there has been shown a disposition on the part of the courts towards such a construction, in favor of the sufficiency and legality of the acknowledgment, as might ordinarily prevail in other matters of this general character; but it may be

The mortgage of a married woman without any acknowledgment has been enforced against her in equity. See Homeopathic Co. v. Marshall, 32 N. J. Eq. (5 Stew.), 106.

1 Dentzel v. Waldie, 30 Cal. 193; Watson v. Mercer, 8 Pet. 88; Barnett v. Barnett, 15 Serg. & R. 72;, s. c. 16 Am. Dec. 518; Mercer v. Watson, 1 Watts, 330; Dulaney v. Tilghman, 6 Gill & J. 461; Lycoming v. Union Bank, 15 Pa. St. 171; Watson v. Bailey, 1 Binn. 476; Webb v. Den, 17 How. 577; Cox v. Gill, 83 Ky. 669; Goshorn v. Purcell, 11 0. St. 641; post, $120.

2 This last clause is found in the statutes of Rhode Island, Virginia, West Virginia, Texas, California, Nevada, Idaho, Montana, and District of Columbia. In Kentucky she "consents that the same may be recorded." In Ohio she must be "still satisfied therewith as her act and deed."

3 Garrett v. Moss, 22 Ill. 363; Ward v. McIntosh, 12 O. St. 231.

4 Martin v. Davidson, 3 Bush, 574; Gregory v. Ford, 5 B. Mon. 481; Stevens v. Doe, 6 Blackf. 475; Ruffner v. McLennan, 16 Ohio, 639; Coleman v. Billings, 89 Ill. 183; Jordan v. Corey, 2 Ind. 385; s. c. 52 Am. Dec. 516; Allen v. Reynolds, 35 N. Y. (4 Jones), 297; Russell v. Whitesides, 4 Scam. 7; Fleming v. Potter, 14 Ind. 486. "Though it is not expressly stated in the certificate that the effect of the deed was explained to her, or that she declared that she had delivered it, or consented that it might be recorded, each of these facts is clearly implied from its state

regarded as the settled law, resulting as a logical sequence of the prevailing construction adopted by the courts, that a full and specific, though not always a literal, compliance with the statute will be required, both in the taking and in the certification of the acknowledgment.

$104. The Separate Examination.

The leading idea in the requirement that the wife shall be separately or privily examined, is that she shall be thereby removed from the presence and influence of the husband. He should be so far away that he cannot see or hear any indication of unwillingness on her part, nor communicate to her by word, look or motion. But although the statute use the term "private examination," it does not necessarily exclude all other persons besides the husband. The examination is sufficiently private if he is excluded. The officer must himself make the examination; he cannot do so by attorney. In a case where it is necessary, however, the examination may be made through an interpreter, who ments." Martin v. Davidson, supra; and see also, Whitehurst v. Hunter, 2 Hayw. 401.

1 McCandless v. Engle, 51 Pa. St. 309. 2 Belo v. Mayes, 79 Mo. 67.

A certificate is not successfully impeached by the testimony of the husband and wife that the husband remained in the clerk's office while the privy examination was taken, the husband stating that he does not remember whether he was out of hearing or not, and the wife being silent on this point, and saying that she signed the deed and acknowledged it. Grotenkemper v. Carver, 10 Lea, 280. Where the deed was read and explained to the husband and wife together, in a room fourteen feet square, after which the wife went out to get the notary a drink of water, and on her return he met her at the door, and standing just inside, asked her, as she was about to step in, if she signed freely, etc.; held, not a private examination. Webb v. Webb, 87 Mo. 540.

3 Love v. Taylor, 26 Miss. 567; Dennis v. Tarpenny, 20 Barb. 371; Thayer v. Torrey, 37 N. J. L. 339. A contrary rule is announced in Warren v. Brown, 25 Miss. 66; s. c. 57 Am. Dec. 191, which is overruled by Love v. Taylor, supra. See 1 Devlin on Deeds, §§552, 553; Den v. Geiger, 4 Halst. 233; Nanty v. Bailey, 3 Dana, 111.

4 Dawson v. Shirley, 6 Blackf. 531. If the law require the examination to be made by two officers, one alone is not suflicient. Malloy v. Bruden, 88 N. C. 305.

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