Chauvin v. Wagner

• Decision Date: 31 October 1853
• Citation: 18 Mo. 531
• Parties: CHAUVIN, et al., Plaintiffs in Error, v. WAGNER & DORSETT, Defendants in Error.
• Court: Missouri Supreme Court

18 Mo. 531

CHAUVIN, et al., Plaintiffs in Error,

v.WAGNER & DORSETT, Defendants in Error.

Supreme Court of Missouri.

October Term, 1853.

1. A certificate of a married woman's acknowledgment must substantially comply with the requirements of the statute. A defective certificate cannot be aided by a court of equity, nor by parol proof.

2. Under the act of 1825, a certificate of a married woman's acknowledgment of a conveyance of her own estate is not vitiated by the omission to state that the contents were explained to her, if it is stated that she was acquainted with the contents.

3. A majority of the court concur in the opinion that a certificate, which states that the wife “was examined whether she acknowledged that she executed the deed and relinquished her dower,” and that “she acknowledged that she executed the deed and relinquished her dower,” will pass her estate, being otherwise sufficient. Judge Ryland dissents.

4. Judge Gamble is of opinion that, under the act of 1825, the omission of the words “and does not wish to retract,” in a certificate of a married woman's acknowledgment of a conveyance of her own estate is fatal. Judge Scott dissents. Judge Ryland expresses no opinion.^(a1)

5. The covenant of seizin will not estop the heirs of the grantor from asserting a title not derived from him. They are merely liable in damages to the extent of the assets that have descended upon them.

6. The covenant for further assurance will not estop the heirs of the grantor from asserting a title not derived from him, unless assets have descended upon them, equal to the value of the property, at the time they acquired the title to it.

Error to St. Louis Court of Common Pleas.

This was an action in the nature of ejectment, begun by the plaintiffs in error in 1850, to recover a lot of ground in the city of St. Louis. The cause was submitted below upon an agreed case. The titles of the respective parties are stated in the opinion of the court. The following facts, upon which stress was laid in argument, may be added: In the deed of F. D. Chauvin and wife to Desire, the land conveyed is described as that conveyed to the wife by her brother-in-law, Leduc, in 1816. After the death of her husband in 1835, Mrs. Chauvin lived unmarried in St. Louis county, up to her death in 1849, and for five years next preceding her death, she resided in St. Louis city. After his purchase Desire improved the land. There was a judgment for the defendants below, from which the plaintiffs appealed to this court. The cause was argued at the October term, 1852, by Mr. Haight and Mr. Lord for the plaintiffs in error, and by Mr. Field and Mr. Gantt for the defendants in error, and again at the March term, 1853, by Mr. Lord for the plaintiffs in error, and Mr. Geyer for the defendants in error. Briefs were filed by Messrs. Haight, Lord and Whittelsey for the plaintiffs in error, and Messrs. Spalding and Shepley, Field and Gantt, for the defendants in error.

Messrs. Lord, Haight and Whittelsey, for plaintiffs in error.

The acknowledgment of the deed is defective and insufficient to pass the wife's estate.

I. It is the acknowledgment of a relinquishment of dower, and not of a conveyance of her estate. Without the acknowledgment, the deed is void, (12 Pet. 375;) with it, it passes just what the wife assents to pass; and when she says she relinquished her dower, what right has any other person to say she intended to pass her estate? By the 11th section of the act of 1825, where the wife is conveying her dower, she must “acknowledge that she executed the deed and relinquished her dower.” By the 12th section, where she is conveying her own estate, she must “acknowledge that she executed the deed and does not wish to retract.” The acknowledgment in question is in the precise form of a relinquishment of dower. Looking to the certificate alone, no one can say she intended to convey more than a dower interest; and the certificate cannot be aided by any considerations outside of it. If this acknowledgment is good, the 12th section of the act is mere surplusage. (McDaniel v. Priest, 12 Mo. 544; Mills' Con. [S. C.] 240; Littell's Select Cases, 156.)

II. It does not appear from the certificate that any proof was made to the court of the wife's identity. The clerk certifies that the proof was made to him, not to the court.

III. It does not appear that the contents of the deed were explained to her. It is stated that “she was made acquainted with the contents;” but something more was required; it was, that the contents should be explained to her, so that she could understand the legal effect of the deed.

IV. The certificate does not show whether she was examined as to whether she wished to retract. The law was framed with a jealous care of the rights of married women. It was not sufficient that she executed the deed voluntarily. The execution passed nothing; and it was intended that she should have an opportunity to retract, up to the time of the acknowledgment, which was the act that passed her estate.

The court is referred to the following decisions in the several states of the Union, upon the statutes enabling married women to convey.

MASSACHUSETTS. Lufkin v. Curtis, 13 Mass. 223; Catlin v. Ware, 9 Mass. 209; Powell v. Monson, 3 Mason, 347, 349; Raymond v. Holden, 2 Cush. 264. In Massachusetts, as well as in Maine, New Hampshire, Connecticut and California, the estate of the wife passes by her merely joining with her husband in a deed. The decisions show that, where less formality is required in the acknowledgment of the deed, greater particularity is exacted in framing the deed itself.

ILLINOIS. Mariner v. Sanders, 5 Gilman, 113; Mason v. Block, 12 Illinois, 273. The case of Hughes v. Lane, (11 Illinois, 123,) is cited by the defendants in error, upon the point that the addition of the words “and relinquished her dower” does not vitiate the acknowledgment. But the judge delivering the opinion expressly says that question does not arise and is not decided.

MICHIGAN. Sibley v. Johnson, 1 Mich. 380.

RHODE ISLAND. 1 Mason's C. C. R. 67, 115; 1 Rhode Island, 209.

NEW YORK. Jackson v. Stevens, 16 J. R. 110, 114; Jackson v. Cairns, 20 J. R. 301; 8 Cowen, 277; 10 J. R. 440; Martin v. Dwelly, 6 Wend. 9; Gillet v. Stanley, 1 Hill, 121.

VIRGINIA. 1 Munf. 518, 523; Hairston v. Randolph, 12 Leigh, 445; 1 Call, 190; 5 Grattan, 414; 2 Randolph, 549; 4 Leigh, 224.

KENTUCKY. Still v. Swan, Littell's Select Cases, 156, (in point.) Tevis v. Richardson, 7 Monroe, 654, (in point.) Barnett v. Shackelford, 6 J. J.Marsh. 532; 3 Dana, 289, 291; 8 B. Monroe, 177, 217; 1 Peters, 346.

TENNESSEE. Meigs, 437; 1 Yerg. 413, 429; Perry v. Calhoun, 8, Humphrey's 551.

NORTH CAROLINA. 2 Dev. 306; 2 Hayw. 68; 2 Murph. 390; Askew v. Daniel, 5 Iredell's Eq. 321; Jones v. Lewis, 8 Iredell's Law 70; 1 Dev. & Batt. 582; 1 Dev. & Batt. Eq. 346; 9 Iredell, 353; Green v. Branton, 1 Dev. Eq. 500.

SOUTH CAROLINA. 1 Hill's (S. C.) 110; Brown v. Spann, Mills' Con. (2 vol. in one,) 240.

MARYLAND. 2 Harris & McH. 38; 3 ib. 430; 1 Harr. & J. 291, 293; 2 ib. 230; 1 ib. 751; 2 ib. 62; 1 Pet. 109.

PENNSYLVANIA. 2 Yeates' 471; 1 Binney, 470; Kirk v. Dean, 2 Binney, 341; 5 Binney, 296; 4 S. & R. 272; 5 S. & R. 289; 6 S. & R. 49; 6 S. & R. 143; 9 S. & R. 268; 10 S. & R. 445; 14 S. & R. 84; 15 S. & R. 72; 3 Wharton, 457; 4 Harris, 532.

OHIO. Brown v. Farrar, 3 Ohio, 140; 6 Ohio, 353; 12 Ohio, 377; 13 Ohio, 116; 15 Ohio, 408; 16 Ohio, 599, 639; 17 Ohio, 105. These later decisions in Ohio are favorable to the defendants in error. They seem to be judicial attempts to do away with solemn legislative enactments.

The cases above cited fully establish the following propositions.

That statutes enabling married women to convey, being in derogation of the common law, are to be strictly pursued.

That the estate of the wife is not passed by the execution of the deed, but by its acknowledgment in the mode prescribed by law.

That parol evidence is never admitted, to aid a defective certificate, nor is any presumption indulged in to give validity to deeds of married women.

That if the certificate of acknowledgment is insufficient to pass the estate, then it is as though no acknowledgment had ever been made, and no act of the wife can ratify what never had any existence. (See 1 Zabriskie (N. J.) at p. 541.)

That the certificate in this case does not show a compliance with the law of 1825, and does not bar the plaintiffs from recovering the land in question.

That the decision of this court, in McDaniel v. Priest, (12 Mo. 544,) is sustained by a long series of adjudications.

But it is insisted that this is a case for equitable relief against the heirs of Chauvin, and that under the new practice, this may be set up as a defence. To this it may be replied that a deed can only be made in the mode prescribed by statute. If there was no acknowledgment, there was no deed, and a court cannot make one. It is true that statutes to cure defects in acknowledgments have been sustained. But no state has yet passed any law that when a married woman relinquishes her dower, she shall be held to have conveyed a fee.

Again, it is said that the plaintiffs in error are estopped by the covenants contained in the deed from Chauvin and wife to Desire. If this is so, it must be either by the covenant of seizin or the covenant for further assurance. They are not estopped by the covenant of seizin, because the uniform measure of damages for the breach of that covenant is the purchase money and interest. (Collier v. Gamble, 10 Mo. 467.) The liability of the plaintiffs under that covenant would merely be to refund the consideration money and interest, if assets to that extent descended to them from their father. Nor are they estopped by the covenant for further assurance. They claim as heirs of their mother, not of their father. There is no covenant binding on her or her heirs. The covenant of their father bound them to convey any title they might acquire from...