Where the statutory expression was, "of her own free will, without undue influence or compulsion of her husband," the omission of the words "of her own free will," was held immaterial on the ground that the wife's freedom from the control of all other persons than the husband is presumed, and need not be shown, and the remainder of the expression sufficiently negatived the undue influence of the husband. As will be seen by reference to the cases cited in the notes, the courts have usually been liberal in the allowance of equivalent expressions in certifying the voluntary character of the wife's execution.2 Duress on the part of the husband cannot be shown as against a subsequent bona fide purchaser of the property.3

1 Tubbs v. Gatewood, 26 Ark. 128. The South Carolina form of certificate for relinquishment of dower provides that the wife shall declare that she acts "freely, voluntarily and without compulsion, dread or fear of any person or persons whomsoever." The courts, it has been said, have no right to dispense with what the statute requires. Laird v. Scott, 5 Heisk. 314; Boykin v. Rain, 28 Ala. 332; s. c. 65 Am. Dec. 349; Henderson v. Rice, 1 Coldw. 223.

2.Without any fear, threats or compulsion," held equivalent to "freely and voluntarily." Allen v. Lenoir, 53 Miss. 321. Where the certificate read with fear or compulsion of any one," instead of "without," this was held a patent clerical error and not to vitiate. King v. Merritt (Mich.), 34 N. W. Repr. 689.

"Voluntarily consenting," held equivalent to “of her own free will and accord, without coercion or compulsion of her husband." Shaller v. Brand, 6 Binn. 435; s. c. 6 Am. Dec. 489.

Omission of "undue influence," held immaterial, where "freely and voluntarily and without fear or compulsion," is used. Goode v. Smith, 13 Cal. 81. Omission of "husband" from the phrase, "undue influence of her husband," held a mere clerical error. Gorman v. Stanton, 5 Mo. App. 585. "Restraint" held equivalent to "constraint." Edmondson v. Harris, 2 Tenn., ch. 427.

But statement that there was a "satisfactory private examination," is not sufficient, Jones v. Lewis, 8 Ired. L. 70; nor that the wife "desired the acknowledgment to be certified,” Bartlett v. Fleming, 3 W. Va. 163; and that she acknowledged the instrument to be her act and deed "in due form," does not supply the omission of "voluntarily." Lucas v. Cobbs, 1 Dev. & Bat. 228.

"Without any bribe, threat or compulsion from her husband," held equivalent to "willingly." Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267.

3 Lane v. Schlemmer, 114 Ind. 296; s. c. 5 Am. St. Rep. 621; 15 N. E. Repr. 454; Gardner v. Case, 111 Ind. 494; s. c. 13 N. E. Repr. 36. (12-Reg. of Title.) 177

$110. The Wish not to Retract.

The wife may have freely and voluntarily signed the instrument, but the explanation of its effect, or some other circumstance, may induce her, at the last moment, to desire to withdraw her assent, and, therefore, a number of the statutes require that her continued assent shall be expressed by a statement that she does not wish to retract it, or words of similar import; and in such case, the omission of the required expression will be fatal to the certificate. In Ohio the certificate must state that she is "still satisfied" with the deed; in Kentucky, that she "consents that it may be recorded;"' and in North Carolina, that she "doth now voluntarily assent thereto."4 These provisions are designed to confer upon the wife a locus penitentiæ-an opportunity to withdraw before she is irrevocably bound. As this right to retract is absolute and unqualified, the courts will not enforce a performance of her bond for title to convey land;5

1 Davis v. Agnew, 67 Tex. 206; s. c. 2 S. W. Repr. 43, 376; Le Bourgeoise v. McNamara, 5 Mo. App. 576; Landers v. Bolton, 26 Cal. 548; Linn v. Patton, 10 W. Va. 187; Burkett v. Scarborough, 59 Tex. 496; Bateman's Petition, 11 R. I. 585; Grove v. Zumbro, 14 Gratt. 501; Hughes v. Lane, 11 Ill. 123; Laidley v. Cent. Land Co., 30 W. Va. 505; 4 S. E. Repr. 705; Blair v. Sayre, 2 S. E. Repr. 97; 29 W. Va. 604; Churchill v. Moore, 1 R. I. 209; Ruleman v. Pritchett, 56 Tex. 482; Bolling v. Teel. 76 Va. 487.

2 Ward v. McIntosh, 12 O. St. 231, overruling Card v. Patterson, 5 0. St. 319.

3 Statement that the wife "is still satisfied therewith," held equivalent to the statutory expression that she "consented that the deed might be recorded." Martin v. Davidson, 3 Bush, 574.

4 But the omission of the statutory words held immaterial where a voluntary execution was sufficiently stated. Etheridge v. Ferebee, 9 Ired. L. 312; Robbins v. Harris, 96 N. C. 557; s. c. 2 S. E. Repr. 70. The officer's certificate must contain his conclusion that the conveyance is not unreasable or injurious to her. Code, §1835; Sims v. Ray, 96 N. C. 87; s. c. 2 S. E. Repr. 443.

5 Cross v. Evarts, 28 Tex. 531; Warren v. Jones, 69 Tex. 462; Jones v. Goff, 63 Tex. 255. In Warren v. Jones, supra, the court holds that a conveyance made under a power of attorney from a married woman is binding on her, and attempts to draw a distinction between her right to retract under a bond for title, and under a power of attorney. The distinction, however, is one without a substantial difference, a distinction of terms only; and the decision is elsewhere in the opinion properly put on the ground of stare decisis.

and partly for this reason also, it is held in some instances that her conveyance made through a power of attorney is not binding.1

§111. Substantial Compliance.

The rule that a substantial compliance with the statute is sufficient-that immaterial words may be omitted, and words of equivalent import to those of the statute may be used-obtains with reference to the certificate of a married woman's acknowledgment, and has been, perhaps, sufficiently illustrated by the cases already cited in this chapter. By some of the courts the rule is applied without any apparent distinction between the certificate in these cases and those pertaining to ordinary acknowledgments; but with other courts there has been, in a few instances, a noticeable tendency towards a stricter construction of certificates of the wife's acknowledgment. Thus, in Blair v. Sayre, 29 W. Va. 604, it is held that a statement in the certificate that the wife acknowledged "that she had willingly executed the same (deed) and does not wish to retract it," is not a substantial compliance with the statute which requires the certificate to show that "she acknowledged the same to be her act and deed, and declared that she had willingly executed the same, and does not wish to retract it." John

1 See post, §117.

3

2 Martin v. Davidson, 3 Bush, 574; Pickens v. Kniseley, 29 W. Va. 1; Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267; Shields v. Netherlands, 5 Lea. 198; Campbell v. Moon, 16 S. Car. 107; Kottman v. Ayer. 1 Strobb. 552, 572; Gordon v. Leech, 81 Ky. 229; Gates v. Hester, 81 Ala. 357; s. c. 1 South. Repr. 848.

Where the question was whether an acknowledgment had in fact been properly made, it was said: "The law prescribes no set terms in which acknowledgments must be formulated. They are orally made. The officer must judge of their meaning and effect. Manner and gesture even may aid him in that, and he must judge whether the husband is far enough away to enable him to certify that the examination was privy." Donahue v. Mills, 41 Ark. 421.

2 Wingo v. Parker, 19 S. Car. 13; Dewey v. Campau, 4 Mich. 365; Rice v. Peacock, 37 Tex. 392; Merritt v. Yates, 71 Ill. 636; s. c. 22 Am. Rep. 128; Manchester v. Hough, 5 Mason, 67; Laidley v. Cent. Land Co., 30 W. Va. 505; s. c. 4 S. E. Repr. 705.

son, C. J., delivering the opinion, says that the case of Belcher v. Weaver, 46 Tex. 293, is precisely in point to the one at bar, but that the reasoning of the Texas court is entirely unsatisfactory-to him.

$112. Joint Certificates.

It is a common practice for the acknowledgment of both husband and wife to be certified in one certificate; the recitals as to their appearance before the officer, their identity, and the fact of acknowledgment being usually made as to both parties at one and the same time, followed by a separate statement of the privy examination of the wife.1 In these joint certificates it is often the case that some of the words relating to the wife's acknowledgment are transposed out of the exact order and connection in which they occur in the statutes, but this has usually been held immaterial. Where the certificate stated that the husband and wife severally acknowledged the instrument to be "their act and deed," and the words "act and deed" were not used again in the subsequent portion of the certificate relating to the wife's privy examination, it was held that the certificate substantially showed that the wife in her separate examination acknowledged the deed to be her act.2

$113. Identity of the Wife.

It sometimes happens that in a joint certificate the words of identity, "known to me," etc., are used in connection with the name of the husband only, and are not repeated in connection with the wife's name in the subsequent part relating to her separate acknowledgment. Usually the wife's name is

1 See for examples, Belcher v. Weaver, 46 Tex. 293; s. c. 26 Am. Rep. 267; Stringer v. Swenson, 63 Tex. 7; Muir v. Gallaway, 61 Cal. 498; Webster v. Hall, 2 Har. & McH. 19; s. c. 1 Am. Dec. 370.

2 Saylor v. Romanet, 52 Tex. 562.

Omission to fill the blanks in the latter part of a printed form of joint certificate, with the name of the wife, may be aided by reference to the previous portion where the parties are jointly mentioned. Donahue v. Mills, 41 Ark. 421. But compare Hartshorn v. Dawson, 79 III. 108; Merritt v. Yates, 71 Ill. 636; s. c. 22 Am. Rep. 128.

followed by the description, "wife of the said A." (the husband already mentioned); yet still the question arises as to the omission in such case to state specifically that the wife is known to the officer. This point has been more than once before the Supreme Court of Illinois, and in that state the omission is held fatal. In the case first presenting the question there is a dissenting opinion by Chief Justice Breese, holding that such certificate shows a substantial compliance with the law, and that the objection is too technical to be permitted to defeat the right. Under the liberal rule of construction that has usually been applied by the courts to the statement of identity, the certificates in these cases might properly have been held sufficient. In addition to the considerations ordinarily influencing the construction of the certificate of acknowledgment, it may be observed as a well known fact that an introduction by the husband at the time of acknowledgment usually constitutes the extent of the officer's acquaintanceship with the wife; and that under the customs and usages of our country he is not expected to question as to her family history, or to call for further proof of her marriage or identity. In Tennessee the statute, aided by the construction of the court, presents the proper form of certificate in such cases. There the 1 Coburn v. Herrington, 114 Ill. 104; Heinrich v. Simpson, 66 Ill. 57; Lindley v. Smith, 46 II. 524.

2 Lindley v. Smith, supra, cited fully in 1 Devlin on Deeds, §558. 3 See cases cited, ante §77, and Hiles v. La Flesh, 59 Wis. 465; s. C. 18 N. W. Repr. 435.

The words of identity in the Alabama statute (Code of Ala., §2822), are "known or made known to me to be the wife of the within named" grantor. A certificate reciting that "A. H., wife of R. B. H., whose name is signed to the foregoing instrument, and who is known to me, acknowledged," etc., was held to sufficiently show that the wife was known to the officer, and known to be the wife of the grantor. Gates v. Hester, 81 Ala. 357; s. c. 1 South. Repr. 848.

The principle upon which the courts proceed is that the law does not mould the habits, the manners and the transactions of mankind, to inflexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Richards, 19 Serg. & R. 351.

Lyle v.