McDaniel v. Priest

• Decision Date: 31 October 1849
• Citation: 12 Mo. 544
• Parties: MCDANIEL v. PRIEST.
• Court: Missouri Supreme Court

12 Mo. 544

MCDANIEL

v.PRIEST.

Supreme Court of Missouri.

October Term, 1849.

ERROR TO RALLS CIRCUIT COURT.

GLOVER & CAMPBELL, and DRYDEN, for Plaintiff.

1. The deed and certificate of acknowledgment were insufficient in law to pass the wife's estate: it would possibly have been good to pass dower, but she had no dower in the lands, and could therefore pass nothing. Rev. Code, 1825, p. 220, § 12. This act requires that the contents of the deed shall be explained to the wife. This, as we conceive, does not suppose that the wife may not be able to read; but that she is ignorant of matters of law, and does not understand the operation of the act she is about to do. The privy examination and explanation, then, should show her what are her rights, and she must freely assent, knowing them, to give them up. Here the plaintiff was misled and deceived; she thought it was dower she was passing away. When an estate in fee simple has been taken from her, if the deed shall be made a bar to her claim, she is told the execution of the deed will relinquish her dower, and she executes it. 2. Had she not been told the deed would only pass a right of dower, she might not. The argument which seeks to separate the examination of the court, and confine it only to the question whether she “executed the deed,” striking out the words, “and relinquishes her dower,” does violence to the true character of the transaction, and gives it an effect never understood by the examiners or the wife. In every part of the certificate the relinquishment of dower is presented as the ultimatum of the effect of the transaction. See 2 U. S. Digest, p. 129, No. 252, 253, 254; 7 Monroe, 661. The object of the privy examination is to ascertain if the wife “freely executed the deed,” and “understood the nature and consequences of her act.” The acknowledgment must not only be free, but intelligent. 3 Dana, 113, 114, 115, 117. 3. The court erred in not setting aside the non-suit in plaintiff's motion.

NAPTON, J.

The only question in this case is as to the sufficiency of a certificate of acknowledgment by the clerk of the Circuit Court of Marion county made in 1834, to the execution of a deed, by George McDaniel and his wife, conveying certain lands belonging to the wife. After the death of McDaniel, his wife brought ejectment to recover the land, and her right to a recovery depended upon the validity of this certificate, which was as follows: “Be it remembered, that on this 17th day of February, 1834, it being the first day of the February term of said court, appeared in open court, George McDaniel and Charlotte, his wife, both of whom are well known to the court to be the persons whose names are subscribed to the within deed, as having executed the same and severally acknowledged the same to be their act and deed for the purposes therein mentioned; the said Charlotte, being first made acquainted with the contents thereof, and by the court examined separate and apart from her husband, whether she executed the said deed and relinquishes her dower to the lands and tenements therein mentioned, voluntarily, freely, and without compulsion, or the undue influence of her husband, acknowledged and declared that she executed the said deed, and relinquishes the dower in the lands and tenements therein mentioned, voluntarily, freely, and without compulsion, or the undue influence of her said husband, and does not wish to retract it. In testimony whereof,” & c.

We have never been disposed to exact a literal...