Jamison v. Jamison

• Decision Date: 16 April 1838
• Citation: 31 Am.Dec. 536,3 Whart. 457
• Parties: JAMISON v. JAMISON.
• Court: Pennsylvania Supreme Court

3 Whart. 457

31 Am.Dec. 536

JAMISON v. JAMISON.

Supreme Court of Pennsylvania.

April 16, 1838

IN ERROR.

1. The certificate of the judge or justice as to the acknowledgment of a deed by a married woman is to be judged of solely by what appears on the face of the certificate itself; and parol evidence of what passed at the time of the acknowledgment is not admissible for the purpose of contradicting the certificate, except in cases of fraud and imposition.

2. An indenture of mortgage between A. and B. recited that A. was indebted in a certain bond to B., and in consideration thereof, and of one dollar to him paid, & c hath granted, & c., and doth grant & c. a certain tract of land, (describing it,) together with the appurtenances, and all the estate, right, title & c., in them the said A. and S. his wife, of in, and to the same: Habendum to the said B. his heirs and assigns: provided, that if the said A. and S his wife, or their heirs, executors, & c. shall pay the amount of the bond at the time appointed, then the indenture to be void, & c. The deed was signed and sealed by both husband and wife, and acknowledged by both, and as respects the wife, after a separate examination, & c. The land mortgaged was the estate of the wife: Held, that the deed was sufficient to pass the estate of the wife.

3. A mortgage of the wife's real estate executed by husband and wife to secure a debt of the husband, and acknowledged by the wife in the manner required by law in respect to absolute conveyances, will bind the estate.

4. A certificate of an acknowledgment of a deed by a married woman stated that " she being of full age separate and apart from her husband by me examined, declared that she did voluntarily of her own free will and accord, seal and acknowledge the within indenture without coercion of her said husband, the contents being by me first made known to her" : Held, that this was sufficient.

THIS was a writ of error to the Court of Common Pleas of Montgomery county.

On the return of the record, it appeared that writ of scire facias issued out of that Court to January term 1834, at the suit of Robert Jamison, against Syndonia Jamison, who survived Hugh Jamison, upon a mortgage dated the 31st day of January, 1827, executed by the said Robert Jamison and Syndonia Jamison.

The defendant pleaded non est factum and payment, with leave to give the special matter in evidence, & c.

The cause came on for trial before Fox, President, on the 24th of May 1836, when the plaintiff to maintain the issue on his part, called James Cummings, to prove the execution of the mortgage on which the scire facias issued; who being duly sworn testified as follows:--" I am a subscribing witness to the mortgage. I saw Syndonia Jamison execute the mortgage. I saw Hugh Jamison execute the mortgage also. Michael Rapp the other subscribing witness is dead. I am a justice of the peace. The mortgage was acknowledged before me, as a justice of the peace, by Hugh Jamison and Syndonia Jamison. I took the acknowledgment." And on being cross-examined he testified as follows:--" This transaction took place at the house of Hugh Jamison. Syndonia Jamison was examined before it was acknowledged. Her husband was then unwell and in bed. I took her out of the room from her husband. She said it was done of her own free will and accord, and that she had at first proposed it. This was before she signed it. We then went back in the room and they both signed it. I read it to both in the hearing of the husband and wife before I took her out of the room. When we went back in the room they both signed it, and I took the acknowledgment in the room with her husband. I took the acknowledgment of them both in the room in the presence of each other. John Jamison the brother of the plaintiff, the plaintiff, and Michael Rapp the other witness, were in the room when I took the acknowledgment. Robert Jamison took possession of the mortgage before we left the room, after giving them the money. I think the mortgage remained in my possession till they got the matter arranged. This was not long, not half an hour. I think it was ten minutes. I think it was only while they were counting out the money it remained in my possession, or perhaps it might have remained on the table. There was nothing done by Syndonia Jamison except signing the mortgage, that I recollect of. Robert Jamison took possession of the mortgage before Syndonia Jamison left the room. The acknowledgment of Syndonia Jamison which I took was in the room where she signed it. They lived in the room. Hugh Jamison was in bed. He sat upon the side of the bed to sign it. He was sick, he never got well after that. I don't know who counted the money. I can't tell how much money was counted. There was a note that Robert Jamison had against Hugh Jamison that went in part, but I don't recollect what amount. This transaction was in the evening after candle-light. When I took the acknowledgment of Mrs. Jamison she stood along side of the bed. The land on which the mortgage was given was the land she inherited of her father. The money was paid down on the table, I believe, and a request made by Syndonia to John Jamison and myself, that we should take a part of it and pay it to the sheriff. We did so. I have not a recollection how much we took. The sheriff had an execution against Hugh Jamison. The acknowledgment of the mortgage I have mentioned, was when Hugh Jamison was sitting on the side of his bed and Syndonia standing by it. There was no other taken after the execution of the mortgage. There was no other acknowledgment of the mortgage by Mrs. Jamison excepting the one in the entry before we went in to sign it. The acknowledgment by the bed side was that of Hugh Jamison and Syndonia also. There is an acknowledgment on the mortgage in writing, signed by me. I can't say positively when the mortgage was delivered to Robert Jamison; can't be positive in regard to who delivered it to him. Mrs. Jamison was up and took an active part. Her husband was not out of bed. I wrote the mortgage. Robert Jamison first spoke to me to write it."

The defendant's counsel then proposed to ask the witness " what was the form of the acknowledgment of Syndonia Jamison?" which was objected to by the plaintiff's counsel, and overruled by the Court. Whereupon the defendant's counsel excepted.

The plaintiff's counsel then offered the mortgage in evidence, which was objected to by the defendant's counsel, but admitted by the Court, and exception taken.

The mortgage was in the following words:--

" This indenture made the thirty-first day of January, in the year of our Lord one thousand eight hundred and twenty-seven between Hugh Jamison of Warwick township, in the county of Bucks in the state of Pennsylvania, (yeoman,) of the one part, and Robert Jamison of the township and county aforesaid, (yeoman,) of the other part. Whereas the said Hugh Jamison in and by a certain obligation or writing obligatory under his hand and seal duly executed, bearing even date herewith, stands bound unto the said Robert Jamison in the sum of six hundred and fifty-two dollars lawful money of the United States conditioned for the payment of three hundred and twenty-six dollars lawful money as aforesaid, together with lawful interest for the same, on or before the first day of April, one thousand eight hundred and twenty-eight, without any fraud or further delay, as in and by the said recited obligation and condition thereof, relation thereunto being had may more fully and large appear. Now, this indenture witnesseth, that the said Hugh Jamison as well for and in consideration of the aforesaid debt or sum of three hundred and twenty-six dollars, and for the better securing the payment thereof, with its interest, unto the said Robert Jamison, his executors, administrators, and assigns, in discharge of the said recited obligation, as for and in consideraof the further sum of one dollar unto him in hand well and truly paid by the said Robert Jamison, at and before the sealing and delivery hereof, the receipt of which one dollar is hereby acknowledged, hath granted, bargained, sold, released, and confirmed and by these presents doth grant, bargain, sell, release and confirm unto the said Robert Jamison, his heirs and assigns, all that parcel and tract or tracts of land situate," & c. [Here the description of sixty-five acres sixty one perches of land is inserted, with the recitals of title, recording, & c.] " Together with all and singular the buildings, woods, ways, waters, water-courses, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, use, possessions, property, claim and demand, whatsoever of them the said Hugh Jamison and Syndonia his wife, of, in, to or out of the same. To have and to hold the said described sixty-five acres and sixty-one perches of land, hereditaments and premises hereby granted or mentioned so to be, with the appurtenances unto the said Robert Jamison and to his heirs and assigns to the only proper use and behoof of the said Robert Jamison and to his heirs and assigns forever: Provided always, nevertheless, that if the said Hugh Jamison and Syndonia his wife or their heirs, executors, administrators, or assigns, do, and shall well and truly pay, or cause to be paid, unto the said Robert Jamison or to his executors, administrators, or assigns, the aforesaid debt or sum of three hundred and twenty-six dollars like money as aforesaid, on the day and time therein before mentioned, and appointed for payment thereof, together with the lawful interest for...