In affirmative statutes, such parts of the prior as may be
incorporated into the subsequent statute as consistent with it must
be considered in force.
If a subsequent statute be not repugnant in all its provisions
to a prior one, yet if the later statute clearly intended to
prescribe the only rules which should govern, it repeals the prior
one.
Under the application of these rules, the law of Virginia,
passed in 1776, authorizing the mayor of a city to take the
acknowledgment of a
feme covert to a deed, is not repealed
by the act of 1785, or that of 1796.
It was an ejectment brought by the heirs of Mary E. Fairbairn,
to recover a half-acre lot in the City of Louisville, designated on
the old plan as number 22, and on the new plan as number 31.
There were many questions in the case, but as the opinion of the
court turned upon a single point, it is not necessary to state any
except that one.
On 12 March, 1811, Mary E. Fairbairn, being the wife of Thomas
H. Fairbairn, and the owner of the lot in controversy, subject to
the dower interest of her mother, united with her husband and
mother in executing a deed for the premises. She then resided in
the City of Baltimore. It was alleged by her children and heirs
that this deed was incompetent to pass her interest, being
improperly executed.
They therefore brought an ejectment to recover it.
The deed was as follows:
"This indenture, made this 12 March, in the year of our Lord
1811, between Elizabeth Henry, Thomas H. Fairbairn and Maria his
wife, (daughter and heiress of Daniel Henry, deceased), of the City
of Baltimore, in the State of Maryland, of the one part, and Dr.
Richard Ferguson, of the Town of Louisville, in the County of
Jefferson and State of Kentucky, of the other part, witnesseth that
the said Elizabeth Henry, and Thomas H. Fairbairn and Maria his
wife, for and in consideration of the sum of eight hundred dollars,
current money of the United States of America, to the said Thomas
H. Fairbairn in hand paid, at and before the execution of these
presents, the receipt whereof is hereby acknowledged, the said
Elizabeth Henry, as tenant in dower, hath aliened, released, and
confirmed, and by these presents doth alien, release, and confirm,
and the said Thomas H. Fairbairn as tenant by the curtesy, and the
said Maria his wife, as tenant in fee simple, have granted,
bargained, sold, conveyed, released, and confirmed, and by these
presents doth grant, bargain, sell, release, convey, and confirm,
unto the said Richard Ferguson, his heirs and assigns, forever,
a
Page 44 U. S. 637
certain lot of land, with all the appurtenances, situate, lying,
and being in the Town of Louisville aforesaid, and known on the
plan or map thereof by the number ninety-one (91), containing half
an acre, be the same more or less, on Main Street, adjoining the
northwardly side of the half-acre lot whereon the said Ferguson now
lives, and between the same and Main Street, to have and to hold
the said half-acre lot number ninety-one, with all the
appurtenances, unto the said Richard Ferguson, his heirs and
assigns, to his and their only proper use and behoof forever. And
the said Thomas H. Fairbairn and Maria his wife do covenant and
agree to and with the said Richard Ferguson and his heirs and
assigns that they, the said Thomas and Maria, will, and their
heirs, executors, and administrators, shall warrant and forever
defend the said lot of land numbered ninety-one, with all the
appurtenances, unto the said Richard Ferguson, his heirs and
assigns against all and every person or persons whatsoever lawfully
claiming or to claim the same."
"In witness whereof, the said Elizabeth Henry, Thomas H.
Fairbairn, and Maria his wife, have hereto set their hands and
seals, on the day and year first written."
"ELIZABETH HENRY [L.S.]"
"THOMAS H. FAIRBAIRN [L.S.]"
"MARIA ELIZA FAIRBAIRN [L.S.]"
"Signed, sealed, and delivered, in presence of:"
"EDW'D JOHNSTON"
"JNO. HARGROVE"
"HENRY PAYSON"
"CUTH. BULLITT"
"THOMAS LESTER"
"Baltimore County, State of Maryland, sct.: "
"Be it known and remembered, that on this 12 March, 1811,
Elizabeth Henry, and Thomas H. Fairbairn and Maria his wife,
parties to the within and foregoing deed of conveyance to Dr.
Richard Ferguson, come in their proper person before me, Edward
Johnston, Mayor of the City of Baltimore in the state aforesaid,
and signed, sealed and delivered said deed of conveyance, as and
for their voluntary act and deed, and the said Maria, being
privately examined by me out of the presence and hearing of her
said husband, did of her own free will and consent again consent to
and acknowledge the said deed of conveyance as and for her act and
deed, the same being shown and explained to her, and also
relinquished and released all her right, title, interest, and
estate, and fee of, in, and to the lot of land number 91, with all
the appurtenances by the said deed conveyed, or intended to be
conveyed."
"In testimony whereof, I have hereto set my hand, and caused the
corporate seal of the City of Baltimore to be hereunto affixed the
day and year above written."
"EDW'D JOHNSTON, Mayor of the City of Baltimore"
Page 44 U. S. 638
Upon the trial in the court below, the following instructions
were given with reference to this deed.
"And in substitution of a number of instructions moved by the
plaintiff, the court gave to the jury these instructions."
"Instead of the plaintiff's instruction No. 1, the court
instructed the jury that the deed of conveyance by Thomas H.
Fairbairn &c., of 12 March, 1811, to the defendant Dr. Richard
Ferguson, whereof a copy was read in evidence by the plaintiff, was
not in law the deed of the
feme covert Maria E. Fairbairn,
is not her deed of conveyance for any purpose whatever, and passed
from her to Dr. Ferguson no estate whatever in the lot of land in
controversy."
The bill of exceptions brought up this instruction, amongst
others:
The question was, whether the Mayor of the City of Baltimore had
a right to take the acknowledgment.
The act of Virginia, passed in 1776, which had been adopted by
Kentucky, (4 Littell's Laws of Kentucky, 432) allowed the mayor of
a city to take an acknowledgment where the grantor resided out of
Virginia.
Two acts were afterwards passed by Virginia, one in 1785 and the
other in 1796, prescribing other modes of taking acknowledgments in
such cases, and the question was whether these acts repealed that
of 1776. The provisions of these acts are quoted in the opinion of
the Court, and need not be repeated.
Page 44 U. S. 643
MR. JUSTICE McLEAN delivered the opinion of the Court.
The lessors of the plaintiff brought an action of ejectment to
recover a half-acre lot in the City of Louisville, numbered on the
new plan of the city ninety-one. Richard Ferguson, Daviess, and
others, were made defendants. The jury found the defendants guilty,
and a judgment was entered against them. On the trial, exceptions
were taken to various rulings of the court, only one of which it is
material to consider.
The court instructed the jury
"That the deed of conveyance, by Thomas H. Fairbairn and wife,
of 12 March, 1811, to the defendant, Dr. Richard Ferguson, whereof
a copy was read in evidence by the plaintiffs, was not in law the
deed of a
feme covert, Maria E. Fairbairn, is not her deed
of conveyance for any purpose whatever, and passed from her to Dr.
Ferguson no estate whatever in the lot of land in controversy."
The plaintiffs below claimed as heirs at law of Maria E.
Fairbairn. The fairness of the purchase of the lot by Ferguson was
not controverted, nor that he paid for it an adequate
consideration. The lot having descended to Maria E. Fairbairn, and
her husband being dead, her heirs claim the property on the ground
that the acknowledgment of the deed by their mother, she being a
feme covert, was defective. And so the court ruled in the
above instruction.
The deed was acknowledged on 12 March, 1811, the day it bears
date, by Elizabeth Henry, who signed it and who had a dower
interest in the lot, and by Fairbairn and wife, the latter being
examined separate and apart from her husband, in due form, before
the Mayor of Baltimore, who affixed his certificate and the seal of
the corporation to the acknowledgment.
On 20 May, 1811, Warden Pope, Clerk of the County Court of
Jefferson, in which Louisville is situated, certified that the deed
was received in his office, and it being duly certified and
authenticated, he recorded the same.
By the Virginia act of 1776 adopted by Kentucky, 4 Litt.Laws of
Kentucky 432, entitled "An act to enable persons living in
other
Page 44 U. S. 644
countries to dispose of their estates in this commonwealth with
more ease and convenience," it was provided
"That a person residing in any other county, for passing any
lands and tenements in this commonwealth by deed, shall acknowledge
or prove the same before"
the mayor or other chief magistrate of the city, town or
corporation wherein or near to which he resides. But where there
was no mayor or other chief magistrate within the county, then a
certificate, under the hands and seals of two justices or
magistrates of the county, that such proof or acknowledgment has
been made before them, is sufficient. Without an acknowledgment,
the fee did not pass under this statute. And
"Where any person making such conveyance shall be a
feme
covert, her interest in any lands or tenements shall not pass
thereby unless she shall personally acknowledge the same before
such mayor or other chief magistrate, or before two justices or
magistrates, as aforesaid."
A privy examination is required, and the same being certified,
the deed may be recorded in the county where the land lies. And
such deed shall be effectual to pass all the interest of the
feme covert.
The acknowledgment of the deed under consideration in all
respects conforms to the requirements of the above act, and the
important question is whether, at the time of the acknowledgment,
the act was in force? If the act had not been repealed, the deed is
unquestionably valid.
The plaintiffs in error contend that the above statute was
repealed by the act of 1785, and also of 1796. The act of 1785 is
entitled "An act for regulating conveyances," in the 1st section of
which it is provided,
"That no estate of inheritance or freehold or for a term of 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, unless
acknowledged or proved before the General Court, or before the
court of the county, city, or corporation, in which the land is
conveyed, or in the manner hereinafter directed,"
&c.
"When husband and wife shall 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 &c.; or if before two
justices of the peace, of that county in which she dwells, who may
be empowered by commission, to be issued by the clerk of the court
wherein the writing ought to be recorded,"
&c., shall be sufficient to convey her estate.
In this act there is no express repeal of the act of 1776;
consequently that act can only be repealed insofar as it may be
repugnant to the subsequent act. They are both affirmative
statutes, and such parts of the prior statute as may be
incorporated into the subsequent one, as consistent with it, must
be considered in force. This
Page 44 U. S. 645
is a settled rule of construction, and applies with peculiar
force, to these statutes. Their object was to prescribe certain
modes by which real property within the commonwealth should be
conveyed, by residents and nonresidents, and also by
femes
covert, and it must be admitted, that no other modes of
conveyance than those which are so prescribed will be valid. These
forms have been adopted for the security of real property, and the
convenience of individuals; hence we find in the statute books of
all the states, numerous acts regulating the signing,
acknowledging, and recording of deeds.
If the act of 1785 be not repugnant in all its provisions to the
act of 1776, yet if the former clearly intended to prescribe the
only modes by which real estate should be conveyed, it repeals the
prior act. And this intention, it is said, is found in the act of
1785. To some extent, this may be correct. In the first section of
that act it is provided that
"No estate of inheritance in lands or tenements shall be
conveyed from one to another, unless the conveyance be declared by
writing, sealed and delivered."
Now a deed, to be valid as a conveyance under this statute, must
be in writing, sealed and delivered. This is the common law
definition of a deed. But there are other requisites to make this
conveyance valid against a purchaser for a valuable consideration
without notice. The deed must be acknowledged as the statute
requires and lodged with the clerk for record. The conveyance as
between the parties would be valid under this statute without
acknowledgment, but unless acknowledged and recorded, or lodged for
record, would not be notice to subsequent and innocent
purchasers.
The acts under consideration provide specially the mode by which
the estate of a
feme covert shall be conveyed. In the act
of 1785, her privy examination may be made in court or by one of
the judges thereof, or she may be examined by two justices of the
peace of the county where she resides, "who may be empowered to do
so by commission," &c.
By the act of 1776, the acknowledgment and privy examination of
a
feme covert were required to be made before the mayor or
other chief magistrate, or before two justices or magistrates of
the town or place wherein she shall reside. The acknowledgment
before two justices is retained in the act of 1785, with this
additional requisite, that the justices shall be commissioned, as
provided, to perform this duty. This necessarily repeals that part
of the prior act which authorized the acknowledgment to be taken
before two justices without being commissioned. The latter act is,
in this regard, repugnant to the former. The provisions cannot
stand together, as the latter act superadds an essential
qualification of the justices not required by the former. But the
important question is whether, as the act of 1875 made no provision
authorizing a mayor of a city to take the acknowledgment of a
feme covert, that provision in the act of 1776 is repealed
by it. In this respect it is clear there is no
Page 44 U. S. 646
repugnancy between the two acts. The two provisions may well
stand together; the latter as cumulative to the former.
Does a fair interpretation of the act of 1785 authorize the
inference that the legislature intended no conveyance by a
feme
covert should be valid unless acknowledged in the form
prescribed by that act? We think no such inference can be drawn. In
the first section of that act, in reference to ordinary
acknowledgements of conveyances, in order, when recorded, that they
might operate as notice to subsequent purchasers, it is required
that the acknowledgment should be made as provided, "or in the
manner hereinafter directed." The words here cited can have no
bearing on the execution of a conveyance by a
feme covert.
In a subsequent part of the same section, provision is made for the
execution of such an instrument, which is complete, without
reference to any other part of the statute. The above words
therefore could only refer to the conveyances spoken of in the
first part of the section and in order that they might operate,
when recorded, as notice.
Upon a careful comparison of these statutes as regards the point
in controversy, we think there is no repeal of the act of 1776 by
the act of 1785. There is no express repeal; no repugnancy, as
regards the power of the mayor of a city to take the acknowledgment
of a
feme covert; nor on this point are there any words of
the latter act which show an intention to make its provisions
exclusive. We are therefore brought to the conclusion, looking only
at these statutes, that the latter act in this regard may be
considered as cumulative.
As having a strong and decided bearing on this view we refer to
Wood v. United
States, 16 Pet. 362. In that case, the Court
said
"The question then arises whether the 66th section of the act of
1799, chap. 128, has been repealed, or whether it remains in full
force. That it has not been expressly or by direct terms repealed
is admitted, and the question resolves itself into the more narrow
inquiry whether it has been repealed by necessary implication. We
say by necessary implication for it is not sufficient to establish
that subsequent laws cover some or even all the cases provided for
by it, for they may be merely affirmative, or cumulative, or
auxiliary. But there must be a positive repugnancy between the
provisions of the new laws and those of the old, and even then the
old law is repealed by implication only
pro tanto to the
extent of the repugnancy."
We come now to consider the act of 1796. The act of 20 December,
1792, concerning the relinquishment of dower, in the 2d section,
provides that dower may be relinquished before two justices of the
peace where the parties reside out of the commonwealth, and the
clerk of the county is required to certify that the persons taking
the acknowledgment were justices &c. This provision is
repugnant to that of the act of 1785, which requires a commission
to be issued to such justices.
Page 44 U. S. 647
By the Act of 17 December, 1795, two persons were authorized to
be appointed by joint ballot of the legislature to revise the laws
in force &c. These persons, having been so appointed, reported
the act of 1796, which is entitled "An act to reduce into one the
several acts, or parts of acts, for regulating conveyances." In
this act are included parts of the act of 1776 and nearly the whole
of the act of 1785. It was passed 19 December, 1796, and, with all
other acts reported at the same time, was adopted by a general act,
referring to the various acts and providing that
"So much of every act or acts before recited as comes within the
purview of this act shall be and the same is hereby repealed from
and after 1 January, 1797,"
on which day the above act took effect.
That part of the act of 1776 authorizing the mayor of a city to
take the acknowledgment of a
feme covert is not included
in the act of 1796, nor were certain provisions of the act of 1748
"for settling the titles and bounds of lands," &c., included,
some parts of which have since been recognized by the Court of
Appeals of Kentucky as in force.
Great reliance is placed by the counsel for the defendants in
error in the case of
Hynes' Representatives v. Campbell, 6
Mon. 286. In that case the complainants prayed a rescission of the
contract for the conveyance of a certain tract of land on the
ground of a defect of title, and the court held that they were not
bound to accept the deed for the land tendered by the defendant, as
some of the conveyances under which he claimed were not
acknowledged and recorded, as the law required. The deeds thus
objected to
"were acknowledged before two justices of the peace of Dunwiddie
County, Virginia, who certified simply that the grantor
acknowledged the same before them, as the law required,"
without adding that the grantor "also subscribed the same in
their presence." This proceeding was under the act of 1792, which
had been construed to require a certificate of the justices that
the deed had been subscribed in their presence, in regard to deeds
executed within the state. And the court said it turned its
attention to the act of 1776,
"and it find that it regulates only conveyances made out of the
state, and that it provides for acknowledgement alone, before two
justices of the peace, and says not a word about subscribing, and
if that act is in force in this respect, it will exactly embrace
the case in question."
And it held that the above act was virtually repealed by the act
of 1785, which requires that the two justices taking the
acknowledgment should be commissioned to do so. This view of the
court, as regards the acknowledgments of the deeds then before it,
was undoubtedly correct. It is the construction which we have
before given to this part of the act of 1785. The attention of the
court was not drawn to any other point than the one before it. It
did not say that that part of the act of 1776 which regulates the
acknowledgment
Page 44 U. S. 648
by a
feme covert, which is wholly different from the
above, was repealed. It is true its language is general, but its
meaning must be limited to the point under consideration. This
decision therefore cannot be considered as having a bearing on the
point now before us.
In the case of
Prewet v. Graves, 5 J.J.Marsh. 120, the
court said that the 5th section of the act of 1748 had been
repealed by subsequent and repugnant enactments. In
Miller v.
Henshaw & Co., 4 Dana 323, it said, in reference to the
act of 1776, and to the decision of
Hynes' Representatives v.
Campbell, above cited, that the act of 1776
"is nowhere repealed by express words, but only by construction,
in consequence of the inconsistency of its provisions with those of
subsequent statutes, and as none of the subsequent statutes relates
to the authentication of deeds of personalty out of the state
except those which reduce the number of witnesses from three to
two, there can be no inconsistency, and therefore no constructive
repeal of so much of this statute as relates to deeds of
personalty, except as to the number of witnesses."
In
McGowen v. Hay, 5 Litt. 244, the court held the act
of 1748 was in force in Kentucky in regard to the acknowledgment
and recording of mortgages and deeds of trust. By the act of 1796,
a deed, executed out of the commonwealth for lands within it, was
required to be recorded in eight months. The act of 1785, which
preceded it, required such deed to be recorded in eighteen months;
and in
Taylor v. Shields, 5 Litt. 297, the question was
whether the latter of these acts in this respect had repealed the
former, and the court said
"We should hesitate much to give such effect to the latter
statute. . . . Virtual repeals are not favored by courts. A body of
acts ought to be held as one act, so far as they do not conflict
with each other. Here, the same restriction to the 'manner
prescribed by law' existed before the passage of our act, as well
as afterwards, and if, in transcribing the Virginia Code into ours,
any part shall be adjudged to be repealed barely by putting in the
date of transcribing as the date of the law, and because the
provision, so transcribed, shall apparently conflict with any
former part not so transcribed, it may be of serious consequence to
the community. . . . We incline,"
the court said, to the opinion
"that the clause in our statute [of 1796] 'in the manner
prescribed by law' meant to retain and was intended to retain
former provisions with regard to deeds entire,"
and it held that the recording of the deed within eighteen
months under the act of 1785 was sufficient.
That part of the act of 1785 which regulated the time of
recording deeds executed without the commonwealth was not copied
into the act of 1796, and yet the court held that the latter act in
this respect did not repeal the former.
In
Elliott v.
Piersoll, 1 Pet. 339, this Court said the Virginia
statute of 1748 "was adopted in Kentucky, at her
Page 44 U. S. 649
separation from Virginia, and is understood never to have been
repealed."
It does not appear that the question, as to the validity of the
acknowledgment of a deed before the mayor of a city, by a
feme
covert, under the act of 1776, since that of 1785 has been
enacted, has ever been decided. Some general expressions, as above
stated, have been used by the Court of Appeals in regard to the
repeal of the former act by the latter, but those expressions did
not relate to the above question. And it may be again observed that
those remarks by the Court of Appeals can only be held to apply to
the matter then before it, and that a more extended application of
them would be inconsistent with the views taken by the same court
in the other cases cited. If the provision in the act of 1785,
requiring a deed executed out of the state to be recorded in
eighteen months, is not repealed by the act of 1796, requiring such
deed to be recorded in eight months, is the act of 1776,
authorizing the acknowledgment of a deed before a mayor, by a
feme covert, repealed by subsequent acts? None of those
acts repeal, in terms, the above provision in the act of 1776, and
they contain no repugnant provision. Consequently, the first act
stands unrepealed. The different acts on the same subject, in the
language of the Court of Appeals, must be "considered as one act."
In this view, the provision in question stands consistently with
all the subsequent statutes, and on this ground we feel authorized
to say, that the acknowledgment of the deed before us is valid,
under the act of 1776, and that it conveyed to Ferguson, the
grantee, a good title in fee simple. The clause of the act of 1796,
"repealing so much of the acts referred to as come within the
purview of that act," extends no further than the repugnancy of the
act of 1796 to the provisions of the acts named.
Upon the whole, the judgment of the circuit court is
Reversed at the costs of the defendants, and the cause be
remanded, &c.
