Watson's Lessee v. Bailey

• Decision Date: 31 December 1808
• Parties: Lessee of WATSON and Wife v. BAILEY and others.
• Court: Pennsylvania Supreme Court

1 Binn. 470

2 Am.Dec. 462

Lessee of WATSON and Wife v. BAILEY and others.

Supreme Court of Pennsylvania.

December 31, 1808

Bargain and sale of the wife's land by husband and wife who, by a certificate of a judge of the common pleas indorsed on the deed, " personally appeared before him and acknowledged the indenture to be their act and deed, and desired the same to be recorded, she being of full age, and by him examined apart, " not sufficient to pass the wife's estate.

Parol declarations of the wife that she executed the deed voluntarily, and if it was not sufficient, would execute and acknowledge it again, or do any other act to make the deed good,--inadmissible.

APPEAL from the circuit court of Lancaster county.

The wife of Watson, one of the lessors of the plaintiff claimed the premises in this ejectment, as heir at law of Margaret Mercer, in whom the title was formerly vested. The defendants also derived title from Margaret Mercer, in virtue of a deed of bargain and sale of the premises, executed by her and her husband James Mercer, to Nathan Thompson, on the 30th May 1785, who on the same day conveyed to the husband, of whom the defendants were heirs. On the day the deed was executed, the husband and wife appeared before a judge of the common pleas, who indorsed upon the deed the following certificate: " Lancaster county ss. Personally appeared before me, the subscriber, one of the justices of the court of common pleas for the county aforesaid, the within named James Mercer and Margaret his wife, and acknowledged the above written indenture to be their act and deed, and desired that the same might be recorded. She the said Margaret being of full age, and by me examined apart. In testimony whereof I have hereunto set my hand and seal, this 30th day of May, anno Domini 1785."

The chief justice, before whom the cause was tried in May 1807, held that the acknowledgment was defective, and that therefore the deed did not pass the estate of the wife. The defendants then offered to produce evidence of parol declarations by the wife, that she executed the deed voluntarily, and that if it was not sufficient she would execute and acknowledge it over again, or do any other act to make the deed good. The evidence was held to be inadmissible; and the jury found for the plaintiff. A motion was then made for a new trial, which was refused; and the defendants appealed to this court.

The act of assembly, upon which the main question turned, was passed the 24th February 1770, and is entitled " an Act for the better confirmation of the estates of persons holding or claiming under feme coverts, and for establishing a mode by which husband and wife may hereafter convey their estates." The preamble to the 1st sect. recites, that it had been theretofore the usage, ever since the settlement of the province, in transferring the estates of femes covert, in many cases for the husband and wife to execute the conveyance in the presence of witnesses only, and in other cases, after such execution to acknowledge the same before a justice of the peace, or a judge of the common pleas or supreme court, the wife being separate and apart from her husband examined; whereby a great number of bona fide purchasers, for a valuable consideration, under such conveyances, were then become the just and equitable owners and possessors of such estates; and as doubts had arisen whether such deeds were valid in law to pass the estate of the wife in the lands intended to be transferred by the said deeds, it therefore enacts that no conveyance whatsoever theretofore bona fide made by husband and wife in manner aforesaid, of any lands, tenements, or hereditaments whatsoever, should be deemed defective; but that the same should be valid in law for transferring and passing the estates, rights, titles, and interests of such husband and wife, according to the true intent and meaning of the words thereof. The 2d section is as follows: " And in order to establish a mode by which husband and wife may hereafter convey the estate of the wife, be it enacted, that where any husband and wife shall hereafter incline to dispose of and convey the estate of the wife, or her right of, in, or to, any lands, & c. it shall and may be lawful to and for the said husband and wife, to make, seal, & c. any grant, bargain and sale, & c. for the lands, & c. intended to be by them passed and conveyed; and after such execution, to appear before one of the judges of the supreme court, or before any justice of the county court of common pleas, of and for the county where such lands, & c. lie, and to acknowledge the said deed or conveyance; which judge or justice shall, and he is hereby authorized and required to, take such acknowledgment; in doing whereof, he shall examine the wife separate and apart from her husband, and shall read or otherwise make known the full contents of such deed or conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed deliver, the said deed or conveyance, without any coercion or compulsion of her said husband, every such deed or conveyance shall be, and the same is hereby declared to be, good and valid in law, to all intents and purposes, as if the said wife had been sole, and not covert, at the time of such sealing and delivery; any law, usage, and custom, to the contrary in any wise notwithstanding." 1 St. Laws. 536.

Montgomery and Tilghman for the appellants. The act of 1770 makes no distinction between deeds to pass the wife's contingent right of dower, and deeds to pass her separate estate; it includes both. The present question is therefore of vast importance; because, however in some instances the ceremonies of this law have been complied with in deeds to pass her estate, it is notorious that the present form of certificate is almost universally indorsed upon deeds to bar her dower. This fact is material to shew the true meaning of the act of 1770. The preamble recites an existing usage for femes covert to pass their estates by a simple bargain and sale before witnesses; and another usage to pass them by deed and acknowledgment, the wife upon such acknowledgment being examined apart from her husband, without more. The former usage had been sanctioned by a judicial decision in Lloyd's Lessee v. Taylor, ^[a] and the latter in Davy v. Turner. ^[b] In the one there was no acknowledgment or separate examination; in the other there was an examination apart, which included a communication of the contents to the wife. The 1st section of this act sanctions all deeds in conformity to either usage; and by the second section it confirms and establishes that usage under which married women passed their estate or right in land by deed, with an acknowledgment and examination apart. By confirming this usage, and making it written law as to all subsequent conveyances, it adopted and legalized that form of certificate which had been before used by the magistrate in similar cases; and accordingly, to this day, the form has undergone little or no change; and very many titles are now derived from femes covert under no other evidence than the defendants have shewn. This practice since the law, universal as to conveyances by which the wife has passed her dower, and very general as to those by which she has passed her fee, is irresistible evidence of a known intention in the legislature to make no change in the mode of pursuing the usage they confirmed. This is one view of the subject. But take it as a mode of conveyance devised by the act. What does the act direct? That the justice shall do certain things; but not that he shall recite all he does. He has said enough to shew that the substance of the act has been satisfied. The acknowledgment by the wife, that the indenture was her act and deed, and her examination apart from her husband, which is coupled with this acknowledgment, shewing the one to have been made during the other, are well set out. The only thing wanting is, that he made known to her the contents; and this is to be presumed. In the first place, this was necessary by the usage before the act; and yet in Davy v. Turner, where it was not set out by the indorsement, the usage was held to have been pursued. In the next place it is a principle, that where the law trusts to a judicial officer the power to do a certain particular, and he certifies he has done it, every thing forming that particular is presumed to have been done. Illustrations of this principle are found in 19 Viner 187. pl. 1. 39 E. 3. 7. Bro. Action on the case pl. 67. Now he has certified the separate examination, which includes the making known the contents, and her declaration that she acts without coercion. These are parts of one ceremony; and the whole being certified, the question is simply whether the parts are included. Credit is to be given to justices of the peace, that they have done right in the execution of their power. The presumption is in their favour. The Queen v. Simpson. ^[a] Here there is enough to shew that the judge had the act in his eye; and if it cannot be presumed that he did his duty, nothing short of a full statement of particulars will answer; and then not one title in fifty can stand. At all events if the court is to presume that he did not do his duty, the declarations of the wife should have been received to rebut the presumption.

Hopkins for the appellee. Whatever in common cases may be the presumption in favour of justices, none is ever made to give validity to the deed of a married woman; for the general presumption being that such a deed is void, it is essential that those things which constitute its validity, should plainly appear along with it. ...