Et At. v. Petitioner

• Decision Date: 30 March 1901
• Citation: 49 W.Va. 387
• Court: West Virginia Supreme Court
• Parties: Morgan et at. v. Snodgrass et al.

49 W.Va. 387

Morgan et at.

v.Snodgrass et al.

Supreme Court of Appeals of West Virginia.

Decided March 30, 1901

.

1. Deed of Married Woman Recorded.

A deed of a husband and wife for her separate real estate, duly executed, acknowledged, and delivered, is good between the parties, though not recorded, (pp. 390-393).

2. Married Woman Separate Estate Acknowledgment.

A deed from a married woman for her separate real estate, signed and acknowledged by the husband, is good, though he is not named as a grantor or otherwise in the body of the deed; but it is not good unless acknowledged by both. (pp. 394, 395).

Appeal from Circuit Court, Wetzel County. Bill by I. D. Morgan and H. L. Smith against C. A. Snodgrass and others. Decree for defendants, and plaintiffs appeal.

Reversed.

A. B. Fleming, U. N. Arnett, Jr., and T. P. Jacobs, for appellants.

W. G. Snodgrass and C. A. Snodgrass, for appellees

Brannon, President:

The facts of this case are as follows: Drophy Walters, a married woman, owned a tract of fifty-six acres of land in Wetzel County, and she and her husband conveyed it to a son, L. S. Walters, by a deed never recorded, but lost or destroyed. While L. S. Walters owned the land he leased it for oil purposes to the South Penn Oil Company, and that company took possession and bored four wells, three of them producing wells. The Eureka Pipe Line Company has its pipe lines on the land carrying oil from these wells. Afterwards L. S. Walters took a second deed from his mother. L. S. Walters conveyed, to H L. Smith, and he conveyed half the tract to I. D. Morgan. After all this Drophy Walters, then widowed, conveyed the same land to C A. Snodgrass, and he brought an action of ejectment against the South Penn Oil Company and the Eureka Pipe Line Company to recover the possession from them of the land. Then Smith and Morgan brought this chancery suit against Snodgrass and others to set up or restore the said lost deed from Drophy Walters and her husband to L. S. Walters, and declare it subsisting still and valid, and to declare the second deed between the same parties a valid contract of sale of the land, and to enjoin the further prosecution of said ejectment, and enjoin Snodgrass from using the deed from Drophy Walters and her husband to him as evidence of title, and to cancel the deed as a cloud over the plaintiff's title, and to enjoin Snodgrass from asserting any title under said deed, or interfering with the possession or operation of the South Penn Oil Company.

The decree dismissed the suit without relief to Smith and Morgan, and they appeal.

Is the lost.deed utterly void because it was not recorded? If it is, then Walters and the plaintiffs claiming under it have no property under it, no right vested recognized by law, so as to call on a court of equity to exercise its anscient jurisdiction to give relief against accident by repairing the loss of the deed.

Doubtless most lawyers, at first blush, would answer that the deed is a mere nullity. They would do so upon the principle that by common law a married woman could not contract, could not convey her land, except by fine and recovery, and since that has been substituted, by the process of privy examination, she can only convey in that mode pointed out by statute, and that her deed is good only so far as the statute makes it good; that while a deed from another person becomes good on delivery, a married woman's deed requires a further element, recordation, by the very letter of section 6, chapter 73, Code 1887, in force when this deed was made, saying that "when the privy examination, acknowledgment and declaration of a married woman shall have been so taken and recorded in the office of the clerk of the county court; or when the same shall have been so taken and certified as aforesaid, and the writing to which such certificate is annexed, or on which it is, shall have been delivered to the proper clerk of the county court and admitted to record as to the husband as well as the wife, such writing shall operate to convey from the wife "all her dower, and right, title and interest of every nature in the real estate conveyed thereby." Many cases announce the general doctrine that a married woman can only convey in the mode prescribed by statute, and in enumerating the elements necessary they include with signature and privy examination and acknowledgment, recordation. Leftwich v. Neal, 7 W. Ya. 576; Rollins v. Manager, 22 Id. 461; Nickell v. Tomlinson, 27 Id. 697; Rosenour v. Rosenour, 47 W. Va. 554, (35 S. E. 918); Sewall v. Haymaker, 127 U. S. 719. Many other cases can be found in which this general statement is made; but in not one case, I think, was the very point adjudged in Yirginia or West Yirginia, unless we except Rorer v. Roanoke Bank, 83 Ya. 589, 4 S. E. 820. The gross wrong prevented in that case by such construction, as will appear in the ease, largely explains it. In that case the court construes the statute as requiring recordation to pass title. Now, I confess that the letter of the statute says this; but what is its spirit, its true meaning? The wife by signing, sealing, acknowledging and delivering the deed has shown her full and final will to convey. All legal safeguards have been complied with for her safety. Until delivery that will has not been manifested, she can stop; but after delivery she has parted with the deed, it is an evidence of ownership in the grantee to do with it as he pleases. He may cause it to be recorded. She had nothing to do with that. She cannot prevent that act of the clerk, a purely ministerial act which the grantee may call upon the clerk to perform. I assume she cannot revoke after delivery and prevent recordation. If the other construction is true, she can; but I suppose no one will say that the legislature meant to give her a right to commit so flagrant a wrong. That act is performed for the benefit of a grantee. Where is the title between delivery and recordation? Is it in a state of suspended animation? Is it in the clouds, or is it in either the woman or her grantee? If still in the woman, the deed when recorded does not take effect from its date; or does it retroact to the date? I say that it is in the grantee. But there is the letter of the statute. What do you do with it? I assume that it should he held directory as to this recordation feature; that recordation is a nonessential as between the parties, but not as to creditors and purchasers. I think the excellent definition of a directory statute given by Cooley's Const. Lim. 77, will justify our treating this feature of the statute as directory: "Those directions, which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and.prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory." In Christy v. Birch, 25 Ma. 942, the statute involved said that the property of the wife "shall only be conveyed by the joint deed of the husband and wife duly attested, authenticated and admitted to record," and it was held that "the statute did not intend to make invalid, as between the parties, thereto, a deed otherwise in accordance with the statute though not recorded." The court, by Chief Justice McWhorter, said: "The language of the statute as to recording the deed would almost seem to be imperative, yet it is impossible to conclude that the legislature, whose only object was the protection of the wife, should make the title to her vendee dependent upon his acts or omissions after she had made the deed to him to the property, and which acts or omissions could not in any possible way affect her interest. If she had sold the property and received the purchase money for it, she was protected as far as there was any need of protection, and it was a matter of indifference to her interest what the purchaser did with his deed.

"We think that the only reasonable construction of the act is that the portion of it alluding to the recording of the deed from a married woman is not intended to affect the validity of the deed as between the married woman and her husband, the grantors and their vendee, but can allude only to subsequent purchasers. We feel clear that this is the proper construction of the act. To hold otherwise would be to say that a purchaser from a married Woman held his title upon a condition which was not mentioned in the deed and the happening or non-happening of which was a matter of the utmost immateriality to her interest.

"A deed must be in existence and in the hands of the recording officer before it can be recorded. No time is fixed by the law within which it must be recorded. The vendee may delay its record to suit his convenience. If it shonld be duly executed by a married woman and is lost, this loss alone, if the position of appellant's counsel is true, would operate as a reversion of the property to the grantor. It could not be recorded because it was lost, and it could not be re-established because it had not been recorded."

This recordation provision was wisely omitted from section six, chapter 73, of the Code by chapter 73, Acts 1891, as will be seen from the section as printed in the Codes of 1891 and 1900, and therefore since the act of 1891 a deed or writing for the conveyance or sale of land in which the wife and husband unite, if properly executed and acknowledged by both, is good beyond question, though not recorded, between the parties and their heirs, though not as to creditors and purchasers for valuable consideration without notice. Why was that requirement of recordation kept in the statute until 1891 through so many years and changes? Why retain it when the recordation could do the woman no good, unless the legislature meant (as if surely did not) to let her get the grantee's money and then defeat her conveyance by forbidding its recordation? I think its presence is only to be...