Under the statutes of Virginia which were in force in September,
1837, and equally under the statutes of Ohio which were in force at
that time, a deed by husband and wife conveying land of the wife
was inoperative to pass her title unless the husband, she having
duly acknowledged the deed, signified his assent to the conveyance
in her lifetime by an acknowledgment in the form prescribed by
law.
Ejectment. Judgment for defendant. Plaintiffs sued out this writ
of error. The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This was an action to recover forty-two undivided one-hundredth
parts of a tract of land in the County of Fayette, State of Ohio.
The answer denied that the plaintiffs, or either of them, have any
estate, title, or interest in or to this land, or to any part
thereof. The defendants also pleaded that no cause of action
accrued to the plaintiffs or to either of them against him within
twenty years prior to the filing of the petition.
The bill of exceptions shows that the plaintiffs in error, after
offering in evidence a patent of the United States covering the
land in controversy, made proof tending to establish the following
facts:
The patentee, William Green Munford, died intestate, leaving as
his only heirs Robert Mundord, John Munford, Stanhope Munford,
William Green Munford, Elizabeth Munford, and Mary Munford. Three
of these heirs -- Stanhope, William Green, and Elizabeth -- died
early in the
Page 127 U. S. 720
present century unmarried, childless, and intestate; the other
three inherited the patented lands in equal shares. Margaret Ann
Munford, the only heir of Robert Munford, who also died intestate,
was born in the year 1800, and in 1819 intermarried with John
Sinclair. She died intestate September 13, 1837, having inherited
one-third of the property in controversy. Her husband died August
3, 1875. The original plaintiffs are her only heirs, and J.
Hairiston Sewall is the grantee of some of the original plaintiffs
for whom he was substituted as a party.
This was the case made by the plaintiffs in error, who were
plaintiffs below.
The defendant, to maintain the issues on his part, offered in
evidence a certain deed purporting to be a conveyance to one Cary
S. Jones of the interest of John Sinclair and Margaret Ann
Sinclair, his wife, in this land.
That deed is dated September 10, 1837, three days before the
death of Mrs. Sinclair, and purports to be signed by the grantors,
Sinclair and wife, of Gloucester County, Virginia, and to have been
"signed, sealed, and delivered in presence of Wm. Robins, Richard
S. Jones, and Pet. R. Nelson." Attached to it are the following
certificates:
"GLOUCESTER COUNTY,
to-wit:"
"We, William Robins and Peyton R. Nelson, justices of the peace
in the county aforesaid, in the State of Virginia, do hereby
certify that Margaret Ann Sinclair, the wife of John Sinclair,
parties to a certain deed bearing date on the 10th of September,
1837, and hereunto annexed, personally appeared before us, in our
county aforesaid, and, being examined by us privily and apart from
her husband, and having the deed aforesaid fully explained to her,
she, the said Margaret Ann Sinclair, acknowledged the same to be
her voluntary act and deed and declared that she had willingly
signed, sealed, and delivered the same and that she wished not to
retract it."
"Given under our hands and seals this 10th day of September,
1837."
"WM. ROBINS [Seal]"
"PET. R. NELSON [Seal]"
Page 127 U. S. 721
"STATE OF VIRGINIA,
Gloucester County, to-wit:"
"We, Wm. Robins _____, Thomas Smith, justices of the peace in
the county and state aforesaid, do hereby certify that John
Sinclair, a party to a certain deed bearing date the 10th day of
September, 1837, and hereunto annexed, personally appeared before
us, in our own county aforesaid and acknowledged the same to be his
act and deed, and desired us to certify the said acknowledgment to
the clerk of the counties of _____, in the State of Ohio, in order
that the said deed may be recorded."
"Given under our hands and seals this 14th of May, 1840."
"WM. ROBINS [Seal]"
"THOMAS SMITH [Seal]"
"STATE OF VIRGINIA,
Gloucester County, to-wit:"
"I, John R. Cary, clerk of the court of the county aforesaid, in
the state aforesaid, do hereby certify that Wm. Robins and Thomas
Smith and Peyton R. Nelson, Esquires, whose names and seals are
affixed to the within certificates of acknowledgments, were at the
time of subscribing the same, justices of the peace in and for the
county aforesaid, duly commissioned and qualified, and that due
faith and credit may and ought to be given to all their acts as
such. In testimony whereof I have hereunto subscribed my name as
clerk aforesaid, and affixed the seal of the said county, this 14th
day of May, 1840, in the 64th year of the commonwealth."
"[L.S.] JOHN R. CARY,
C.G.C."
STATE OF VIRGINIA, Gloucester County,
to-wit:
"I, Wm. Robins, presiding justice of the court of the county
aforesaid, do hereby certify that John R. Cary, who has given the
certificate below, is clerk of the said court, and that his
attestation is in due form."
"Given under my hand this 14th day of May, 1840."
"WM. ROBINS, Sen'r [Seal]"
The plaintiffs objected to the admission of the conveyance in
evidence upon the ground that, as it was not acknowledged or
Page 127 U. S. 722
proven by John Sinclair until after the death of his wife, it
was not sufficient and valid as a conveyance of the latter's
interest, either under the laws of Virginia, where it was executed,
or under the laws of Ohio, where the land is situated. This
objection was overruled, and the deed admitted in evidence, to
which the plaintiffs excepted. The defendant offered in evidence
deeds conveying to him whatever title Cary S. Jones had, and
admitted that he was in possession of the premises in
controversy.
No further evidence being offered, the court charged the jury
that the deed of September 10, 1837, was a valid conveyance, and
passed to the grantee, Jones, all the interest of Margaret Ann
Sinclair in the premises; that the defendant, by subsequent
conveyances, had become the grantee of that interest, and that he
was entitled to a verdict. To this charge the plaintiffs
excepted.
The Act of the General Assembly of Ohio passed February 21,
1831, entitled "An act to provide for the proof, acknowledgment,
and recording of deeds and other instruments of writing," was in
force both when Mrs. Sinclair acknowledged the deed to Jones,
September 10, 1837, and when it was acknowledged, in 1840, by her
husband. Its fifth section is in these words:
"All deeds, mortgages, powers of attorney, and other instruments
of writing for the conveyance or encumbrance of any land,
tenements, or hereditaments situate within this [that] state,
executed and acknowledged or proved in any other state, territory,
or country, in conformity with the laws of such state, territory,
or country or in conformity with the laws of this state shall be
valid as if executed within this state in conformity with the
foregoing provisions of this act."
29 Ohio Statutes 346; 1 S. & C. Stat. 458, 465.
The statute of Virginia applicable to the case was the Act of
February 24, 1819 (Revised Code, Va. 1819, p. 361), entitled "An
act to reduce into one the several acts for regulating conveyances,
and concerning wrongful alienations."
Its first section provides
"That no estate of inheritance or freehold or for a term of
Page 127 U. S. 723
more than five years in lands or tenements shall be conveyed
from one to another unless the conveyance be declared by writing
sealed and delivered, nor shall such conveyance be good against a
purchaser for valuable consideration, not having notice thereof, or
any creditor unless the same writing be acknowledged by the party
or parties who shall have sealed and delivered it or be proved by
three witnesses to be his, her, or their act before the court of
the county, city, or corporation in which the land conveyed or some
part thereof lieth, or in the manner hereinafter directed, and be
lodged with the clerk of such court to be there recorded."
The fourth section provides:
"All bargains, sales, and other conveyances whatsoever of any
lands, tenements, or hereditaments, whether they be made for
passing any estate of freehold or inheritance or for a term of
years, and all deeds of settlement upon marriage wherein either
lands, slaves, money, or other personal things shall be settled or
covenanted to be left or paid at the death of the party or
otherwise, and all deeds of trust and mortgages whatsoever which
shall hereafter be made and executed shall be void as to all
creditors and subsequent purchasers 'for valuable consideration
without notice' unless they shall be acknowledged or proved, and
'lodged with the clerk to be' recorded, according to the directions
of this act; but the same, as between the parties and their heirs,
'and as to all subsequent purchasers, with notice thereof, or
without valuable consideration,' shall nevertheless by valid and
binding."
The fifteenth section makes specific provision for the execution
and acknowledgment of deeds by husband and wife. It is as
follows:
"When a husband and his wife have sealed and delivered a writing
purporting to be a conveyance of any estate or interest, if she
appear in court, and, being examined privily and apart from her
husband by one of the judges thereof, shall declare to him that she
did freely and willingly seal and deliver the said writing, to be
then shown and explained to her, and wishes not to retract it, and
shall before the said court acknowledge the said writing, so again
shown to her, to be
Page 127 U. S. 724
her act, such privy examination, acknowledgment, and declaration
shall thereupon be entered of record in such court, and if, before
any two justices of the peace for any county or corporation in 'any
state' or Territory of the United States, 'or of the District of
Columbia,' such married woman, being examined privily and apart
from her husband, and having the writing aforesaid fully explained
to her, shall acknowledge the same to be her act and deed, and
shall declare that she had willingly signed, sealed, and delivered
the same, and that she wished not to retract it, and such privy
examination, acknowledgment, and declaration shall be certified by
such justices, under their hands and seals, by a certificate
annexed to said writing, and to the following effect, that is to
say:
County or corporation, sc.: We, A.B. and C.D., justices of
the peace in the county (or corporation) aforesaid, in the state
(or territory or district) of _____, do hereby certify that E.F.
the wife of G.H., parties to a certain deed, bearing date on the
___ day of _____, and hereunto annexed, personally appeared before
us in our county (or corporation) aforesaid, and, being examined by
us privily and apart from her husband, and having the deed
aforesaid fully explained to her, she, the said E.F. acknowledged
the same to be her act and deed, and declared that she had
willingly signed, sealed, and delivered the same, and that she
wished not to retract it. Given under our hands and seals this ___
day of _____. A.B. [Seal] C.D. [Seal], and such certificate
shall be offered for record to the clerk of the court in which such
deed ought to be recorded; it shall be the duty of such clerk to
record the said certificate accordingly, along with the deed to
which it is annexed, and when the privy examination,
acknowledgment, and declaration of a married woman shall have been
so taken in court, and entered of record, or certified by two
magistrates, and delivered to the clerk to be recorded, and the
deed also shall have been duly acknowledged or proven, as to the
husband, and delivered to the clerk to be recorded, pursuant to the
directions of this act, such deed shall be as effectual in law, to
pass all the right, title, and interest of the wife as if she had
been an unmarried woman,
provided however that no
covenant
Page 127 U. S. 725
or warranty contained in such deed hereafter executed shall in
any manner operate upon any
feme covert and her heirs
further than to convey effectually, from such
feme covert
and her heirs, her right of dower, or other interest in real estate
which she may have at the date of such deed."
The first section of the Ohio statute of 1831 (1 S. & C.
Stat. 458), as modified by the subsequent Acts of January 29, 1833
(
id. 470), and February 17, 1834 (
id. 694),
provides that when any man or unmarried woman, above the age of
eighteen years,
"shall execute, within this state, any deed, mortgage, or other
instrument of writing, by which any land, tenement, or hereditament
shall be conveyed, or otherwise affected or encumbered in law, such
deed, mortgage, or other instrument of writing shall be signed and
sealed by the grantor or grantors, maker or makers, or [and] such
signing and sealing shall be acknowledged by such grantor or maker
in the presence of two witnesses, who shall attest such signing and
sealing, and subscribe their names to such attestation, and such
signing and sealing shall also be acknowledged by such grantor or
grantors, maker or makers, before a judge of the supreme court, or
of the court of common pleas, a justice of the peace, notary
public, mayor, or other presiding officer of an incorporated town
or city, who shall certify such acknowledgment on the same sheet on
which such deed, mortgage, or other instrument of writing may be
printed or written, and shall subscribe his name to such
certificate."
The second section of the same act provides
"That when a husband and wife, she being eighteen years of age
or upward, shall execute, within this state, any deed, mortgage, or
other instrument of writing for the conveyance or encumbrance of
the estate of the wife, or her right of dower in any land,
tenement, or hereditament, situate within this such deed, mortgage,
or other instrument of writing, shall be signed and sealed by the
husband and wife, and such signing and sealing shall be attested
and acknowledged in the manner prescribed in the first section of
this act, and in addition thereto the officer before whom such
acknowledgment shall be made shall examine the wife, separate and
apart from her husband,
Page 127 U. S. 726
and shall read or otherwise make known to her the contents of
such deed, mortgage, or other instrument of writing, and if, upon
such separate examination, she shall declare that she did
voluntarily sign, seal, and acknowledge the same and that she is
still satisfied therewith, such officer shall certify such
examination and declaration of the wife, together with the
acknowledgment as aforesaid, on such deed, mortgage, or other
instrument of writing, and subscribe his name thereto."
MR. JUSTICE HARLAN delivered the opinion of the court.
Obviously, in view of the statutes of Ohio, the first inquiry
must be whether the deed purporting to convey to Jones the interest
of John Sinclair and wife in the lands in dispute was executed and
acknowledged in conformity with the laws of Virginia, where that
deed purports to have been made.
There has been no appearance in this Court by the defendant, nor
in the examination of the questions presented have we had the
benefit of a brief in his behalf. But we are informed by the brief
of the plaintiffs in error that it was claimed in the court below
that neither the acknowledgment nor record of the Sinclair deed
constituted parts of the deed itself, and that the effect of the
want of acknowledgment was simply that defined by § 4 of the
Virginia act of 1819, namely that the deed was valid and binding as
between the parties and their heirs.
We do not understand such to have been the law of Virginia in
respect either to the acknowledgment or recording of deeds made by
husband and wife. In
First National Bank of Harrisonburg v.
Paul, 75 Va. 594, 600, the question was as to the
admissibility of parol evidence to show that the privy examination
of a married woman was regularly taken in the form prescribed by
the statute, or that the officer taking the same, by mistake or
inadvertence, omitted material statements required to be set forth
in the certificate of such examination. Referring to § 7 of c. 117
of the Virginia Code of 1873, which, as we shall presently see, is
substantially the same as § 15 of the act of 1819, the court
said:
"It will thus be seen that the statute prescribes the necessary
steps to be taken preparatory to a valid relinquishment of the
claim for dower.
Page 127 U. S. 727
The certificate must set forth her declaration and
acknowledgment as prescribed by the statute; it must be on or
annexed to the deed; it must be admitted to record along with the
deed, and when
all these requirements shall have been
complied with, and
not till then, the writing operates to
convey from the wife her right of dower."
After observing that the object of the statute was to provide a
substitute for the proceeding by fine in England, which was never
in force in Virginia, whereby the rights of the wife, on the one
hand, might be carefully guarded, and an indefeasible title
secured, on the other, the court proceeds:
"As was said by Judge Tucker (
Harkins v. Forsyth, 11
Leigh 301), 'The validity of the deed is made to depend, not upon
the truth of the certificate, but upon its existence and its
delivery to the clerk.' It is the authentic and sole medium of
proving that the
feme covert has acknowledged the deed
with all the solemnities required by the statute."
The Court of Appeals of Virginia, in the same case, quotes with
approval the following language from
Elliott v.
Peirsol, 1 Pet. 330:
"What the law requires to be done and appear of record can only
be done and made to appear of the record itself or an
exemplification of the record. It is perfectly immaterial whether
there be an acknowledgment or privy examination in fact or not, if
there be no record of the privy examination, for by the express
terms of the law, it is not the fact of privy examination merely,
but the recording of the fact, which makes the deed effectual to
pass the estate of a feme covert."
In
Rorer v. Roanoke Nat. Bank, decided in 1887 (not yet
in the regular reports, but reported in 4 S.E. 820, 826, 831), the
court said that "all the requirements of the statute, including
recordation, as to both
husband and wife, must be complied
with or else the wife's title does not pass." After an extended
review of the statutes of Virginia relating to conveyances,
beginning with the act of 1674, and including those of 1705, 1710,
1748, 1785, 1792, 1814, and 1819, the court further said:
"The part of § 15, c. 99, 1 Rev.Code, 1819, prescribing the
effect of acknowledgments of married women when recorded was
condensed substantially into what is now
Page 127 U. S. 728
§ 7, c. 117, Code 1873, which was the statute in force and
applicable to the case in hand. . . . The statute is absolute;
there is no room for presumptions resulting from technical rules of
construction, and all its requisites must be substantially complied
with, or else nothing passes by the deed of a married woman. As
colony and state, such has been not only the general policy but the
unmistakable spirit and letter of the law in Virginia for over 200
years."
In view of these adjudications, it is clear that by the law of
Virginia the acknowledgment and the recording of conveyances by
husband and wife of lands in that commonwealth, in the mode
prescribed by her laws, is essential to pass the estate of the wife
in such lands.
The question, however, remains as to the effect of the death of
Mrs. Sinclair before her husband had acknowledged the deed. This
question is by no means free from difficulty. It was suggested, in
a somewhat different form, but not decided, in the case of
Rorer v. Roanoke Nat. Bank. It was there argued that if a
married woman's deed only became effectual when duly admitted to
record, it would result that if the wife died between the date of
her acknowledgment and the recording of the deed, the instrument
would be wholly void. But the court said:
"Not so, however, for as between the husband and the grantee,
the deed would be valid and binding though as to the wife it would
be inoperative -- ineffectual to pass her title -- until duly
recorded, for it is only then that a married woman's conveyance
becomes a complete transaction. But it is useless to argue this
proposition, as the pretended recordation in 1875 of the deed of
1861 was prior to Mrs. Rorer's death. It is sufficient to say that
if the question were presented directly for decision, it would be
an exceedingly interesting one, as the authority for recordation at
a time subsequent to the execution and delivery of the deed seems
to rest solely upon her presumption of the wife's continuing
acquiescence, and in 2 Tuck.Bl.Com., Bk. 2, p. 268, the
distinguished author significantly suggests the question whether
recordation after the death of the wife would be effectual."
Although it was not essential under the Ohio statute that
Page 127 U. S. 729
the deed signed by Sinclair and wife be put upon record in
Virginia, we are of opinion that upon her death it became -- so far
as the laws of the latter state are concerned -- inoperative as a
conveyance of her interest in the lands in controversy. Until the
husband acknowledged it and thereby, in the only way prescribed by
statute, gave his assent to her conveying away her interest, the
deed was ineffectual for any purpose. While it may not have been
necessary that they should acknowledge the deed at the same time,
or upon the same occasion, or before the same officer, the statute
of Virginia, upon any fair interpretation of its words, and having
regard to the policy which induced its enactment, must be held to
have required that the acknowledgment of the husband should occur
in the lifetime of the wife, while she was capable of asking his
consent to the conveyance of her lands. But that assent was of no
avail after the death of the wife, before the husband had, by
acknowledgment of the deed, signified his willingness to have her
convey to Jones, under whom the defendant claims title. Upon her
death, the title passed to someone. It did not pass to Jones, for
the reason that there was not then in existence any completed
conveyance sufficient, under the law, to transfer her estate to a
grantee. It therefore must have passed to her heirs, and their
title could not be divested by any subsequent act of the husband.
The fourth section of the Virginia statute, declaring certain
conveyances to be valid and binding as between the parties and
their heirs, has no application to conveyances by a wife in which
the husband does not join during her lifetime by an acknowledgment
in the mode prescribed by law.
It results that if the admissibility as evidence of the deed to
Jones depends upon its validity under the laws of Virginia as a
conveyance of Mrs. Sinclair's interest in these lands, the court
erred in not excluding it from the jury.
Was the deed executed and acknowledged in conformity with the
laws of Ohio, where the lands are situated? In other words, would
the deed have conveyed the interest of Mrs. Sinclair if it had been
executed and acknowledged in Ohio by the wife in her lifetime, but
not acknowledged by the
Page 127 U. S. 730
husband until after the death of the wife? If so, it may be that
under the Ohio statute of 1831, the deed would be good as between
the heirs of Mrs. Sinclair and Jones, for that statute declares
that a conveyance of lands in Ohio will be valid if acknowledged in
conformity either with the laws of the state in which it is
executed or in conformity with the laws of Ohio.
Upon examining the statutes of Ohio, the controlling provisions
of which have been referred to, and also the decisions of the
Supreme Court of that state to which our attention has been called,
we find nothing to justify us in holding that a deed for land
acknowledged by the wife, but not acknowledged by the husband in
the lifetime of the wife, will pass her estate in the lands
conveyed. In
Ludlow v. O'Neil, 29 Ohio St. 181, it was
held, using the language of the syllabus, that
"Under the statute of February 22, 1831, it is not indispensable
to the validity of a deed executed by husband and wife that they
should acknowledge it before the same officer, or at the same time
and place, or that their acknowledgment should be certified by a
single certificate."
Yet "the acknowledgment of the wife is not binding upon her
until the deed is executed and acknowledged by the husband." "The
husband," the court said,
"can render the wife every needed protection by himself refusing
the sign and acknowledge the deed. If she acknowledged it before
the husband, it is presented to him with the wife's signature and
acknowledgment, and he has only to refuse to acknowledge."
We are of opinion that, equally under the Ohio and Virginia
statutes, a deed by the husband and wife conveying the latter's
land is inoperative to pass her title unless the husband, she
having duly acknowledged the deed, should, in her lifetime and by
an acknowledgment in the form prescribed by law, signify his assent
to such conveyance. For the reasons stated, the judgment is
Reversed, with directions to grant a new trial and for
further proceedings in conformity with law and the principles of
this opinion.
MR. JUSTICE MATTHEWS took no part in the decision of this
case.