Miller v. Wentworth

• Decision Date: 10 October 1876
• Citation: Miller v. Wentworth, 82 Pa. 280 (Pa. 1876)
• Court: Pennsylvania Supreme Court
• Parties: Miller <I>et al. versus</I> Wentworth.

82 Pa. 280

Miller et al. versus Wentworth.

Supreme Court of Pennsylvania.

June 7 and 8, 1876.

October 10, 1876.

June 7th and 8th 1876.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON and WOODWARD, JJ. SHARSWOOD and WILLIAMS, JJ., absent

Error to the Court of Common Pleas of Warren county: January Term 1876, No. 135. Certified from Eastern District.

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Johnson & Lindsey and J. C. Strong, for plaintiffs in error.— The grantee of a married woman must see that the deed to himself is properly acknowledged: Michener v. Cavender, 2 Wright 334. The statutory form of acknowledgment must be strictly followed Graham v. Long, 15 P. F. Smith 383; McCandless v. Engle, 1 Id. 310; and this must appear in the certificate. This acknowledgment and the certificate were a fraud upon the wife. Besides, the presence of the husband at the acknowledgment by the wife, raises a presumption of duress. This court will go behind the certificate in either case. Mrs. Howd's acknowledgment was taken before she signed the deed; this was irregular: Michener v. Cavender, supra.

The copy of an instrument, which can be stamped under the Act of Congress of 23d June 1874, is a literal transcript of the lost instrument; one which has been compared with it. Further, that act has a proviso that "no right shall be affected by stamping in pursuance of the act." The copy in this case was not stamped till after suit begun, when the rights of the parties were fixed; the case, therefore, falls within the proviso.

W. D. Brown and R. Brown, for defendants in error.—In the absence of fraud or duress practised on the wife, the certificate of acknowledgment is conclusive of the facts stated in it; it has been so decided in a line of cases, from Watson v. Bailey, 1 Binn. 470, down to Heeter v. Glasgow, 29 P. F. Smith 79. The certificate was a substantial compliance with the requirements of the law: Evans v. Commonwealth, 4 S. & R. 272; M'Intire v. Ward, 5 Binn. 301; Shaller v. Brand, 6 Id. 435. It appears that Mrs. Howd was examined apart from her husband, she knew the contents of the deed, and her will was free. The signing, sealing and acknowledging were contemporaneous; Michener v. Cavender does not apply to such a case. A vendee need not inquire whether the certificate is true in fact, if it is sufficient on its face. The copy stamped was a sufficient copy. The Act of 1874 was passed to raise a revenue; it should be interpreted to promote that object: Brinker v. Brinker, 7 Barr 53. The Act of Congress of 13th July 1866, sect. 9, is in pari materia; that provides for stamping copies of unstamped papers "to the satisfaction of the collector." The unstamped deed was valid to pass a title; its only disqualification was to its being used in evidence: Long v. Spencer, 1 Weekly Notes 435; Tripp v. Bishop, 6 P. F. Smith 424. Therefore the plaintiffs below acquired no rights upon Mrs. Howd's death.

Chief Justice AGNEW delivered the opinion of the court October 10th 1876.

The decision of two questions will determine this case. 1. The sufficiency of the acknowledgment of the deed from Mrs. Howd to Darwin Wentworth. 2. The sufficiency of the payment of the stamp duty. As to the first it is to be observed the evidence discloses only irregularity, and no imposition, coercion or other element of fraud or duress, in procuring the acknowledgment. The defendant is a bonâ fide purchaser, for a full consideration, without notice of any irregularity; relying on the certificate of the magistrate, there being nothing on its face to put him upon inquiry. In such a case the certificate is conclusive of the facts stated in it, and parol evidence will not be received to impugn it: Barnet v. Barnet, 15 S. & R. 72; Jamison v. Jamison, 3 Wharton 457; Louden v. Blythe, 3 Casey 22; Williams v. Baker, 21 P. F. Smith 476; Heeter v. Glasgow, 2 Weekly Notes 1. The cases supporting the exceptions of fraud and duress prove the rule: Louden v. Blythe, 4 Harris 532; Michener & Wife v. Cavender, 2 Wright 334; Hall v. Patterson, 1 P. F. Smith 289; McCandless v. Engle, Id. 309.

These principles leave only a single inquiry. Is the acknowledgment of Mrs. Howd's deed sufficient on its face? It does not literally follow the words of the Act of 24th February 1770. Yet the rule is firmly established that if the essentials, or substantial requisites of the act appear in the acknowledgment, it is sufficient. So many cases have been decided on this point a particular examination of each is unnecessary: M'Intire v. Ward, 5 Binn. 296; Shaller v. Brand, 6 Id. 438; Id. 441; Jamison v. Jamison, 3 Whart. 472. The exceptional cases also prove the rule: Watson v. Bailey, 1 Binn. 479; Evans v. Commonwealth, 4 S. & R. 272; Thompson v. Morrow, 5 Id. 289; Hawley v. McClurg, 9 Id. 273. The substantial requirements of the Act of 1770 are a separate examination of the wife apart from her husband — her full knowledge of the contents of the deed — and her voluntary consent to its execution by herself: Evans v. Commonwealth, 4 S. & R. 273; Louden v. Blythe, 3 Casey 25; Louden v. Blythe, 4 Harris 532. The acknowledgment of Mrs. Howd, according to the secondary evidence of its contents, set forth that her husband and she appeared in person and acknowledged the indenture to be their act and deed and desired that it might be so recorded; that she was examined separate and apart from her husband; that the contents were first fully made known to her, and that she acknowledged that she signed, sealed and delivered the same without any fear or compulsion from her said husband. All the requisites of the Act of 1770 are thus given, unless we hold that the absence of a declaration of free will deprives it of sufficiency. It is reduced to this question, therefore, whether the words "without any fear or compulsion from her said husband," are equivalent to a declaration of free will. It certainly is, unless the legislative intent was to protect her from some other coercion, or fear, than that of her husband. But we know of none other intended. The law was founded on the common-law principle of marital unity, and subjection of the wife to the husband. Being covert the law intended that coverture, pro hac vice, should be suspended, by a separate examination and an expression of her will, without the fear or compulsion of her husband before her. We find no case exactly in point, but many where the purpose of the law is said to be to free her from the control of her husband. For example see Evans v. Commonwealth, 4 S. & R. 273; Louden v. Blythe, 3 Casey 25; Louden v. Cowden, 6 S. & R. 274; Louden v. Blythe, 4 Harris 539; Shrader v. Decker, 9 Barr 14. The means of this special emancipation from the restraints of coverture were to be separation from the presence of her husband when she could speak freely into the private ear of the magistrate, whose duty it would be to probe the freedom of her will, and whose official character would be a practical protection from fear or constraint. Therefore when she has, on such an examination apart, and having a full knowledge of the act she is doing, declared that she signed, sealed and delivered the deed without any fear or compulsion of her husband, she has substantially declared that her will was free and her consent was voluntarily given.

Some of the cases are quite strong. Thus in Shaller v. Brand, 6 Binn. 435, it was held that all the requisites as to the freedom of the will were supplied by the words "voluntarily consenting thereto," omitting the words "without any coercion or compulsion of her said husband." So the averment of a full knowledge of the contents were decided to be supplied by a recital of what the deed was for: M'Intire v. Ward, 5 Binn. 296. So the words "seal and deliver" were supplied by "seal and acknowledge;" and the absence of the word "compulsion" held not to be fatal: Jamison v. Jamison, 3 Whart. 457, 472. In view of the purpose of the law and the judicial interpretation of its provisions, we think the secondary evidence in this case presented a sufficient acknowledgment of the deed.

From the foregoing observations and authorities it will be seen that the alleged irregularity of taking the acknowledgment before the actual signature of Mrs. Howd cannot be inquired into in the absence of fraud or duress. Michener and Wife v. Cavender, 2 Wright 334, is a very different case. There the wife did not sign the mortgage either before or at the time of taking her acknowledgment. If her name became affixed it was long afterwards. Here the whole transaction was one and the same, and the order of time of signature was a mere irregularity, which could not be shown by parol to contradict the acknowledgment, in the absence of fraud or duress.

The second question relates to the sufficiency of the payment of the stamp duty. It seems that Mrs. Howd advanced to the defendant the money to pay for the necessary stamps; but he neglected to provide and apply them, and finally used the money for his private purposes. Having sold parts of the land, he handed the deed to Hamilton, to enable him to draw up deeds to the purchasers. Hamilton's office was burned, and Mrs. Howd's deed to defendant was consumed. This action was brought by Mrs. Howd's heirs against Wentworth, in possession, to recover, on the ground of the alleged invalidity of the deed, and it became necessary to stamp the deed or a copy, to enable Wentworth to avail himself of it as evidence. But the deed being unrecorded, and no copy preserved, this became impossible. He therefore procured a...