Johnson v. Parker

• Decision Date: 25 May 1889
• Citation: 11 S.W. 681,51 Ark. 419
• Parties: JOHNSON v. PARKER
• Court: Arkansas Supreme Court

11 S.W. 681

51 Ark. 419

JOHNSON v. PARKER

Supreme Court of Arkansas

May 25, 1889

APPEAL from Desha Circuit Court in Chancery, JNO. A. WILLIAMS Judge.

Decree affirmed.

W. G Weatherford, for appellant.

Plaintiff was certainly not barred of her dower by any law in force at the time the acknowledgment was made. What then is the effect of the curative act of 1883?

The act declares that such deed shall be held to pass the estate which it purports to convey. In this case the deed purports to convey the fee, and the act makes it good for that purpose.

Reviews 44 Ark. 112; 41 Id., 101; Gould's Dig., p. 268, sec. 21 and contends that there was no defect either in the deed or acknowledgment to cure, and that a married woman can only relinquish her dower in the manner prescribed in the statute. Lex ita scripta.

Jas Murphy, for appellee.

The defects in the deed and acknowledgment were cured by acts of March 8th and 14th, 1883. The act simply gives to the deed the effect the grantors in equity and good conscience intended, but which from ignorance or mistake perhaps was not perfected.44 Ark. 365; 45 Id., 41; Ib., 101; 15 Ohio 232.

OPINION

COCKRILL, C. J.

This is a suit by Mrs. Johnson, the appellant, for assignment of dower in lands which she had joined with her husband in conveying to one Wyley in 1859. The conveyance was in form a warranty deed in which the wife joined as a grantor. It was recorded soon after its execution. There is no clause relinquishing dower in the body of the deed. nor any mention of it in the officer's certificate of acknowledgment. It is conceded that the acknowledgment was not in the form prescribed by statute for the relinquishment of dower, and that the widow is not barred of her right according to the previous decisions of this court, (Meyer v. Gossett, 38 Ark. 377, and cases cited,) unless the subsequently passed curative acts have made the conveyance effective for that purpose. The court decreed against the widow in, so far as the deed controls, and the effect of the Statutes referred to, is the only question we need consider. The first of these provisions is the sixth section of the act of March 8th, 1883, entitled, "An Act for the better quieting of titles," which was substantially re-enacted under the same title in 1885, (see Acts of 1885, p. 190,) and is as follows: "All deeds and other conveyances recorded prior to the first day of January, 1883, purporting to have been acknowledged before any officer, and which have not heretofore been invalidated by any judicial proceeding, shall be held valid to pass the estate which such conveyances purport to transfer, although such acknowledgment may have been on any account defective." The second is the act of March 14th, 1883, entitled: "An Act to cure defective acknowledgments," viz: "All conveyances and other instruments of writing authorized by law to be recorded, or which have been heretofore recorded in any county of this State, the proof of the execution whereof is insufficient because the officer certifying such execution omitted any words in his certificate, * * * * shall be valid and binding as though the certificate of acknowledgment or proof of execution was in due form."

In the case of Johnson v. Richardson, 44 Ark. 365, we ruled that these provisions of the statute validated a previously defective acknowledgment of a relinquishment of dower, and that no vested right was disturbed thereby. In that case, however, the certificate of the officer showed that the wife had made an ineffectual effort to relinquish dower, and the curative acts were permitted to supply the defect in the certificate; while here, no mention is made of dower either in the deed or in the officers certificate of acknowledgment, and the question is, is the acknowledgment "defective" within the meaning of the first act, or "insufficient because the officer certifying such execution omitted any words in his certificate," within the meaning of the second? The officer certifies that the husband acknowledged the instrument "to be his act and deed and that the wife being privily examined separate and apart from her said husband, declared that she did freely and willingly sign and deliver said * * without any fear or compulsion from her said husband as her act and deed." The certificate is imperfect as to both parties inasmuch as it omits all mention of the "purposes and consideration" for which the deed was executed. Little v. Dodge, 32 Ark. 453. With the addition of these words in their proper connection, the acknowledgment would be good as that of grantors to the fee. It is not pretended that the curative statutes do not supply them, but the contention is, that their operation should stop there and leave the certificate as in perfect form for the conveyance of the fee by both husband and wife. The argument is, that as the wife has not manifested an intent to relinquish dower, there is no defect in that respect to be cured; and not being bound by the covenants in the deed on account of her coverture, she is not barred of her recovery of dower. If there had been a clause in the deed expressing the purpose thereby to relinquish dower, unquestionably the effect of the statute would be to supply any defect in the acknowledgment which prevented the deed from having that effect; otherwise the clearly expressed intent of the parties to vest an estate in their grantee, freed from the wife's contingent right of dower, would be defeated by the lack of form in the ceremony of execution, which was the very consummation the legislature intended to prevent. But, when the acknowledgment is in form for that purpose, the fact that the wife joins in the deed with her husband, as grantor, is sufficient to bar her dower even though there is no clause in the deed expressly relinquishing it. It was so determined in Dutton v. Stuart, 41 Ark. 101. If she joins with her husband in the conveyance as a grantor, her estate passes; if she has no estate, but only the possibility of dower, for what purpose, asks Judge English in the case last cited, does she join in granting the estate except to relinquish her right to dower? The deed is sufficient to pass her title, right or interest whatever it may be, provided only the requirements of the statute as to the acknowledgment are observed. A deed of general warranty purports to convey a perfect title or estate. If "the estate which the conveyance purports to transfer," does not "pass," to use the language of the statute, merely because the officer's certificate of acknowledgment is not in the form prescribed by the statute, then the acknowledgment is on that account defective; and "the proof of the execution is insufficient because the officer certifying to it has omitted words" which were necessary in the acknowledgment to give full legal effect to the terms of the conveyance. The application of the statute has heretofore been made only to obvious omissions of words from the certificate of acknowledgment; and particular instances of this nature may have given rise to the legislation in question, but the terms employed are comprehensive and enunciate a general rule applicable to all cases in which the acknowledgment is insufficient to give full legal effect to the terms of the conveyance.

The evil of the one case is as great as that of the other. As was said by the supreme court of Ohio in Goshorn v Purcell, 11 Ohio St. 641, in construing a statute which authorized the courts to correct "errors, defects and mistakes" in the deeds of married women, "we should look rather to the principle of justice and right which the rule was intended to enforce by an application to past transactions, than the particular instances to which a like application had been made, though historically connected with the adoption of the rule." And in that case it was said that the statute would apply to a conveyance perfect in form if it did not comply with the obvious intent of the parties. Our statutes were designed to operate upon the ceremony of the execution of conveyances--a subject...