should be sworn.1 The examination and explanation of the deed must precede the acknowledgment.2

$105. Certifying the Privy Examination.

Unless the certificate shows the separate examination, it is fatally defective. Some statutes require the examination to be "out of the presence" of the husband, and others, "out of the hearing;" and it is usually held that either of these expressions will, in the certificate, answer for the other; and even the omission of these words has been held not to vitiate where the certificate stated the examination to have been separate and apart from the husband. Where the statutory expression is "separate and apart" from the husband, the use of either one of these words has, in some instances, been held sufficient, and in others not sufficient.7

1 Norton v. Meader, 4 Saw. 603; DeArnaz v. Escandon, 59 Cal. 486; Walter v. Weaver, 57 Tex. 569; Chestnut v. Shane, 16 Ohio, 599. Contra, Dewey v. Campau, 4 Mich. 565.

2 Watson v. Michael, 21 W. Va. 568; Laidley v. Knight, 23 W. Va. 735. Signing and acknowledging a deed of her separate property by a married woman is not effectual to convey her title when her name does not appear in the body of the instrument, and there is nothing to show that the husband, who is the sole grantor, is a married man. Bradley v. Mo. P. Ry. Co., 91 Mo. 493; s. c. 4 S. W. Repr. 427.

3 Jourdan v. Jourdan, 9 Serg. & R. 268; s. c. 11 Am. Dec. 724; Watson v. Bailey, 1 Binn. 470; s. c. 2 Am. Dec. 462; Laughlin v. Tream, 14 W. Va. 322; Kendall v. Miller, 9 Cal. 591; Clayton v. Rose, 87 N. C. 106; Edgerton v. Jones, 10 Minn. 427; Marsh v. Mitchell, 26 N. J. Eq. 497; Bagby v. Emberson, 79 Mo. 139; First Nat'l Bank v. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740; Willis v. Gattman, 53 Miss. 721; Pratt v. Battels, 28 Vt. 685; Graham v. Long, 65 Pa. St. 386; Stillwell v. Adams, 29 Ark. 346; Hartley v. Ferrell, 9 Fla. 374; Harty v. Ladd, 3 Or. 353; Phillips v. Green, 3 A. K. Marsh. 7; s. c. 13 Am. Dec. 124. Under the Kentucky statute, where the acknowledgment is before a clerk in that state, the separate examination need not be certified. Dowell v. Mitchell, 82 Ky. 47.

* Deery v. Cray, 5 Wall. 795; Nippel v. Hammond, 4 Colo. 211. Pardun v. Dobesberger, 3 Ind. 389; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dec. 370.

6 Belo v. Mayes, 79 Mo. 67.

7 Dewey v. Campau, 4 Mich. 565. But the word "apart" held not equivalent to "out of hearing." Butterfield v. Beale, 3 Ind. 203.

172

Where it is necessary, the explanation of the deed may be made through a sworn interpreter.

$106. Explanation of the Deed.

The object of requiring the officer to explain the contents of the instrument to the wife is to prevent the conveyance from being obtained by deceit or misrepresentation of the husband. A full knowledge on her part of the contents of the deed is one of the principal objects to be attained by the private examination. If she is misinformed as to its contents, the conveyance is of no avail against her; and if the deed has been changed in an important particular after her acknowledgment has been taken, she cannot be compelled to abide by the altered instrument. It is not sufficient for

the officer to merely read the deed to the woman. The explanation has been held not necessary where it sufficiently and certainly appears to the officer that the wife already correctly understands the contents and effect of the instrument; and where the statute does not require the officer himself to make the explanation, it will suffice that she is made acquainted with the contents by any person.5

held that by the terms of some of the statutes the explanation need not be private. Usually, however, this matter constitutes a part of the privy examination.

Statement in the certificate of a "private examination," held to suffice for "privily and apart from her husband." Skinner v. Fletcher, 1 Ired. 313. "Separate and apart," held to suffice for "privily and apart." Coombes v. Thomas, 57 Tex. 321.

1 Pease v. Barbiers, 10 Cal. 436; Hitz v. Jenks, 123 U. S. 298; Langton v. Marshall, 59 Tex. 296.

2 Cole v. Bammel, 62 Tex. 108; and see Roney v. Moss, 76 Ala. 491.

3 Watson v. Michael, 21 W. Va. 568; Chestnut v. Shane, 16 Ohio, 599.

4 Drew v. Arnold, 85 Mo. 126; Chauvin v. Wagner, 18 Mo. 541; McIntyre v. Ward, 5 Binn. 301; Talbot v. Simpson, 1 Pet. C. C. 188; Schley v. Pullman Co. 7 Supt. Ct. Repr. 730; 120 U. S. 575.

5 Jansen v. McCahill, 22 Cal. 563; French Bank v. Beard, 54 Cal. 480.

• Webb v. Webb, 87 Mo. 510; Ray v. Crouch, 10 Mo. App. 321; Moorman v. Board, 11 Bush, 185.

In Tennessee the statute requires the certificate of a married woman's acknowledgment to show that she executed the deed "under

$107. Certifying the Explanation.

The certificate is invalid if it fails to show the requisite explanation of the deed to the wife. It is not sufficient for the officer to certify that she "declared that she fully understood the contents of said deed;" she might be mistaken in her understanding of it. Where the statute requires the officer to make the explanation, the certificate must show that it was made by him; otherwise it is sufficient to state generally that the explanation was made, or that the wife was made acquainted with the contents of the instrument.*

A statement in the certificate that the officer made the wife acquainted with the contents of the instrument has recently been held sufficient in California, although the deed stated that it was subject to conditions contained in another instrument not signed by her, and not then executed, the contents whereof were unknown to the officer.5

standingly," and that is an indispensable requisite, though that precise word need not be used. Anderson v. Bewley, 11 Heisk. 29; Wright v. Duffield, 2 Baxt. (58 Tenn.), 218.

Norton v. Meader, 4 Lawy. 603, 625; Harrison v. Oakman, 56 Mich. 390; De Arnaz v. Escandon, 59 Cal. 486; Walter v. Weaver, 57 Tex. 569; Chestnut v. Shane, 16 Ohio, 599; 1 Dev. on Deeds, §§537, 538.

1 Bolling v. Teel, 76 Va. 487; Paine v. Baker, 15 R. I. 100; s. c. 1 N. Eng. Repr. 153; Ruleman v. Pritchett, 56 Tex. 482; Bateman's Petition, 11 R. I. 393; Barnet v. Barnet, 15 Serg. & R. 72; s. c. 16 Am. Dec. 516; Roney v. Moss, 76 Ala. 491; Burkitt v. Scarborough, 59 Tex. 495; Bagby v. Emberson, 79 Mo. 139; Hutchinson v. Ainsworth, 63 Cal. 286; Johnson v. Bryan, 62 Tex. 623; O'Ferrall v. Simplot, 4 Iowa, 381.

2 Langton v. Marshall, 59 Tex. 296; but see contra, Thomas v. Meir, 18 Mo. 573.

3 Rice v. Peacock, 37 Tex. 392.

4 Thomas v. Meir, supra; Talbot v. Simpson, 1 Pet. C. Ct. 188; Kavanah v. Day, 10 R. I. 393; Martin v. Davidson, 3 Bush. 572; Hughes v. Lane, 11 Ill. 123; Nippel v. Hammond, 4 Colo. 211.

5 Bull v. Coe (Cal.), 18 Pac. Repr. 808.

Under some of the statutes it has been held not necessary for the officer to certify that he had made the explanation. Stevens v. Doe, 6 Blackf. 475; Gregory v. Ford, 5 B. Mon. 471; Chestnut v. Shane, 16 Ohio, 599.

Where the certificate showed that the explanation was before the privy examination, it was held fatally defective. Watson v. Michael, 21 W. Va. 568; Laidley v. Knight, 23 Id. 735.

$108. The Voluntary Execution.

The separate examination is intended to secure to the wife the free exercise of her will in the execution or rejection of the deed.1 Evidence of duress on the part of the husband, in order to successfully impeach a certificate showing a voluntary execution, must be clear and well corroborated, especially if it relate to matters occurring in the privacy of domestic life. A threat by the husband to poison himself does not constitute duress ;3 and it has been held that a threat to arrest the husband, who had committed a crime, is not duress as regards the wife.

The voluntary assent must be affirmatively expressed. The several statutes use a greater variety of terms for the expression of the wife's consent than in relation to any other matter connected with her acknowledgment,5 and as a result a great number of cases have arisen in which the courts have been called on to construe equivalent expressions, and to determine what will constitute a substantial compliance with the statute on this point. Where the statute uses an unnecessary number of words and terms of sim

Where the certificate stated that the contents of the deed "were made fully to her," the omission of "known" was held not to vitiate. Hornbeck v. Building Association, 88 Pa. St. 64.

A statement in the certificate that the wife declared that she executed the deed freely and understandingly, held not to supply the want of explanation. Ruleman v. Pritchett, 56 Tex. 482.

1 Moorman v. Board, 11 Bush, 140; Mount v. Kesterson, 6 Coldw. 452. 2 Ins. Co. v. Nelson, 103 U. S. 544; Smith v. Allis, 52 Wis. 337; Smith v. McGuire, 67 Ala. 34.

3 Wright v. Remington, 41 N. J. L. 48; s. c. 32 Am. Rep. 180; but compare Eadie v. Slimmon, 26 N. Y. 9.

4 Compton v. Bunker Hill Bank, 96 Ill. 301; s. c. 36 Am. Rep. 147. The terms most commonly employed, are "willingly" (Tex.; Va.; Wash. Ter.; D. C.); "freely" (Dak.); "freely, without fear, coercion or compulsion" (Oregon); "willingly, without compulsion or threats or fear of her husbands displeasure" (Del.); "of her own free will, without compulsion or undue influence of her husband" (Ark.); "of her own free will and accord, and without fear, constraints, or threats on the part of her husband" (Ala.); "freely and voluntarily" (Ky.; La.); "freely and voluntarily, without any compulsion or the illicit influence of her husband" (N. M.); "voluntarily“ (Ohio); “her voluntary act and deed” (R. I.).

ilar import, as, "her voluntary act and deed, freely, without any fear, threats or compulsion of her said husband," the omission of one or more of the prescribed terms has usually been held not to vitiate, for the reason that the others sufficiently express the voluntary assent.1 The decisions, however, are not uniform; and the omission of the words "fear" and "ill-usage," in such connection, has been held fatal on the ground that the courts have no right to dispense with what the statute has required. "Without fear, constraint or threat," has been held sufficient for "without fear, constraints or threats," as found in the Alabama statute.3

$109. Certifying the Voluntary Execution.

A failure to show the voluntary execution is fatal to the certificate. It is not necessary, however, for the certificate to state that the wife comes before the officer voluntarily.5

Tubbs v. Gatewood, 26 Ark. 128; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dec. 370; Battin v. Bigelow, 1 Pet. C. C. 452; Ruffner v. McLenan, 16 Ohio, 639; Dengenhart v. Cracraft, 36 O. St. 549; Den v. Geiger, 4 Halst. (9 N. J. L.), 225; Devlin on Deeds, §568; Brown v. Farron, 3 Ohio, 140; Goode v. Smith, 13 Cal. 81.

2 Laird v. Scott, 5 Heisk. 314; Hawkins v. Burress, 1 Har. & J. 513; Boykin v. Rain, 28 Ala. 332; s. c. 65 Am. Dec. 349; Bright v. Boyd, 1 Story, 486; 1 Story Eq., §§97, 117; Alabama v. Boykin, 38 Ala. 510; Hollingsworth v. McDonald, 2 Har. & J. 230; s. c. 3 Am. Dec. 545; Henderson v. Rice, 1 Coldw. 223.

Use of the words "freely and of her own accord," in lieu of "as her voluntary act and deed," held sufficient. Dundas v. Hitchcock, 12 How. 256.

Where the statute required that the acknowledgment should be that the wife executed the deed without fear or compulsion of her husband or any one else, the omission of the latter words was held fatal to the certificate. Bronson v. Cahill, 4 McL. 19. For cases of acknowledgments held not voluntary, see Edgerton v. Jones, 10 Minn. 427; Helm v. Helm, 11 Kan. 19; Anderson v. Anderson, 9 Kan. 112. See also post, $121.

3 Homer v. Schonfield, 84 Ala. 313; s. c. 4 South. Repr. 105.

4 Chaffe v. Oliver, 39 Ark. 531; Leftwich v. Neal, 7 W. Va. 569; Bernard v. Elder, 50 Miss. 336; Pratt v. Battels, 28 Vt. 685; Bagby v. Emberson, 79 Mo. 139; Dennis v. Tarpenny, 20 Barb. 371; Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267; Blackburn v. Pennington, 8 B. Mon. 219. Garrett v. Moss, 22 Ill. 363; Kavanaugh v. Day, 10 R. I. 393; Louden v. Blythe, 27 Pa. St. 22; s. c. 67 Am. Dec. 442.

Mickel v. Gardner, 41 Ark. 491.