Russell v. Rumsey
| Decision Date | 30 April 1864 |
| Citation | 35 Ill. 362,1864 WL 3060 |
| Parties | CORNELIA RUSSELLv.GEORGE F. RUMSEY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Superior Court of Chicago.
Bill for dower filed in the court below by appellant against appellees, upon which a decree pro forma was entered dismissing the bill.
The certificates of acknowledgment to the deed in question, which was a quitclaim executed June 25, 1851, by John B, F. Russell and complainant, his wife, are as follows:
“ State of Illinois-- Cook County--ss.
I, Edward Wright, a notary public * * * do hereby certify that John B. F. Russell, who is personally known to me as the same person whose name is subscribed to the above instrument of writing, appeared before me this day in person. and acknowledged that he signed, sealed and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth.
Given under my hand and seal this 28th day of June, A. D., 1851.
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¦[SEAL.]¦EDWARD WRIGHT, Notary Public. ¦
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STATE OF ILLINOIS-- Cook County--ss:
I, Edward Wright, a notary public, * * do hereby certify that Cornelia Russell, who is to me personally known to be the same person who executed the within deed, personally appeared before me this day, and having been by me examined separate and apart, and out of the hearing of her husband (the within mentioned John B. F. Russell), and the contents and meaning of the within deed having been by me fully explained and made known to her, acknowledged that she had executed the same freely and voluntarily, and without compulsion of her husband.
Given under my hand and notarial seal this 8th day of March, A. D. 1852.
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¦[SEAL]¦EDWARD WRIGHT, Notary Public. ”¦
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The questions raised upon appeal relate to the sufficiency of said certificate to bar complainant's right of dower, and the constitutionality of the act of 1853 (Sess. Laws, 89) in its operation thereupon.
J. S. Page, for appellant.Scammon, McCagg and Fuller, for appellees.
The certificate of acknowledgment annexed to the deed of Russell and wife to Wright fails to state that Mrs. Russell relinquished her right of dower in the premises. In other respects the certificate is formal and sufficient. It presents the question whether such a certificate is sufficient to operate as a bar of dower under the statute. In the case of Hughs v. Lane, 11 Ill., 123, it was said, if the certificate shows that the substantial requirements of the statute have been complied with, it is sufficient to pass the wife's title to her real estate. And the same reason for the application of the rule applies to the release of her dower. The question then arises whether the omitted words are substantial or merely formal.
The statute requires the officer to explain to her the contents of the deed or conveyance, and to examine her separate and apart from her husband, whether she executed the same and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely, and without compulsion of her husband. If she shall so acknowledge the deed, the officer is required to grant a certificate, to be indorsed upon and annexed to such deed, stating that such woman was personally known to him, or proved to be the person who subscribed the deed or writing, and that she was made acquainted with the contents thereof, and was examined and acknowledged as aforesaid. How acknowledged as aforesaid? The statute had prescribed that she should acknowledge that she relinquished her dower freely and voluntarily. The officer is required to examine her as to that fact, and ascertain whether she relinquished her dower in the mode pointed out by the statute, and then certify the facts. If he omits any portion of the facts which she is required to acknowledge, then he does not certify that she acknowledged the deed “as aforesaid.”
It would seem to be apparent from the language of the statute, that everything required by her to be acknowledged was regarded as essential. This is the uniform construction put upon the statute by the profession since its adoption. All conveyancers, so far as our knowledge extends, have so regarded and acted upon the statute. It is believed that every form book ever published in the state has contained, in the form of such an acknowledgement, a statement that the wife relinquished her right of dower in the premises. Most of the printed blanks for deeds, prepared for use in the state, have certificates containing this statement, where the wife is expected to join in its execution. In the volume of real estate statutes, published by Judge PURPLE, on page 507, there is a form given, and it contains the statement. There were few more distinguished real estate lawyers in the profession, and that fact gives it significance. We have only to refer to almost any deed that may be examined, where the wife has joined to release her dower, to see that the acknowledgment contains such a statement. After contemporaneous construction of such uniformity and for such a length of time, we are not prepared, even if it was not so obvious, to adopt a different one.
It is urged that a widow claiming dower under such circumstances acts in bad faith. This may be true, but the law is not designed to regulate the morals of indviduals who violate no law. Also, that she knew when she executed the deed that the purchaser expected to obtain a release of her dower, and that she must have designed to bar it by her act. The same might be said with equal truth if she had only signed the deed and acknowledged it in the presence of a subscribing witness; and yet it would not be contended that her dower would thereby have been released. Nor could witnesses be called to prove the fact. The statute has, in lieu of the more solemn mode of barring dower by fine or recovery, adopted the examination and certificate by the officer. When this change was made it can hardly be supposed that any requirement imposed would be regarded as merely formal or directory. In so great and important a change in the mode of barring dower, it would of course lead to the adoption of other acts deemed sufficient, but to no more than was deemed essential. The wife is unable to bar her right of dower except by conforming to the requirements of the statute.
Nor has equity jurisdiction to specifically execute the contract of a feme covert, whether for the relinquishment of her dower or the conveyance of her real estate. If there has been a mistake by the officer, or the feme covert has acted in bad faith, it is the misfortune of the grantee to have received a deed inoperative to pass the...
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