Lindley v. Smith

• Decision Date: 31 January 1871
• Citation: 1871 WL 7914,58 Ill. 250
• Parties: SAMUEL LINDLEYv.SILAS SMITH et al.
• Court: Illinois Supreme Court

58 Ill. 250

1871 WL 7914 (Ill.)

SAMUEL LINDLEY

v.SILAS SMITH et al.

Supreme Court of Illinois.

January Term, 1871.

WRIT OF ERROR to the Circuit Court of Clark county; the Hon. HIRAM B. DECIUS, Judge, presiding.

Mr. R. L. DULANEY, and Mr. R. W. THOMPSON, for the plaintiff in error.

Mr. JOHN SCHOLFIELD, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, to correct a mistake in the certificate of acknowledgment of a married woman, of a deed conveying land to which she held the legal title.

The defect in the certificate of acknowledgment by the justice of the peace, appears to be that he did not state therein that the wife was personally known to him as the real person whose name was signed to the deed as having executed the same.

The statute on this subject is as follows: “When any husband and wife residing in this State, shall wish to convey the real estate of the wife, it shall and may be lawful for the said husband and wife, she being above the age of eighteen years, to execute any grant, bargain, sale, lease, release, feoffment, deed, conveyance or assurance in law, whatsoever, for the conveying of such lands, tenements and hereditaments, and if, after the execution thereof, such wife shall appear before some judge or other officer authorized by this chapter to take acknowledgments, to whom she is known, or proved by a credible witness, to be the person who executed such deed or conveyance, such judge or other officer shall make her acquainted with and explain to her the contents of such deed or conveyance, and examine her, separate and apart from her husband, whether she executed the same voluntarily, freely and without compulsion of her said husband; and if such woman shall, upon such examination, acknowledge such deed or conveyance to be her act and deed, that she executed the same voluntarily and freely, and without compulsion of her husband, and does not wish to retract, the said judge or other officer shall make a certificate, indorsed on or annexed to such deed or conveyance, stating that such woman was personally known to the said judge or other officer, or proved by a witness (naming him), to be the person who subscribed such deed or conveyance, and setting forth the examination and acknowledgment aforesaid, and that the contents were made known and explained to her; and such deed, (being acknowledged and proved according to law as to the husband), shall be as...