A paper, executed, under seal, for the husband's benefit, by
husband and wife, acknowledged in separate form by the wife, and
meant to be a mortgage of her separate lands, but with blanks left
for the insertion of the mortgagee's name and the sum borrowed, and
to be filled up by the husband, is no deed as respects the wife,
when afterwards filled up by the husband and given to a lender of
money, though one
bona fide and without knowledge of the
mode of execution. The mortgagee, on cross-bill to a bill of
foreclosure, was directed to cancel
her name.
Foster, of Minnesota, being about to engage in some enterprise
and wanting money, asked his wife, who owned, in her separate
right, a valuable tract of land in that state, to mortgage it for
his benefit. What exactly was said or promised did not appear.
However, Foster afterwards went to a notary, who exercised, as it
seemed, the business of a scrivener also and directed him to draw a
mortgage of the property, with himself and wife as mortgagors, but
leaving
the name of the mortgagee, and the sum for which the
land was mortgaged, in blank. This the magistrate did. Foster
acknowledged the deed at the magistrate's office
in this
shape, and the magistrate then took the instrument to Mrs.
Foster at her husband's house, that she might sign and acknowledge
it in the same shape. When the magistrate took the mortgage to her
thus to execute, Mrs. Foster said
"she was fearful that the speculation which her husband was
going into would not come out right;
that she did not like to
mortgage that place, but that he wanted to raise a few hundred
dollars, or several hundred dollars, or something to that
effect"
-- the magistrate, who was the witness that gave the testimony,
did not recollect the exact expression which she used -- "and that
she did not like to refuse him, and that so she consented to sign
the mortgage." Mrs. Foster having signed the instrument in
this
blank shape, the notary, under his hand and seal, certified,
in form, that the husband and wife, "the signers and sealers of the
foregoing deed," had personally appeared before him, "and
acknowledged the signing and sealing
thereof to be their
voluntary act and
deed, for the uses
Page 69 U. S. 25
and purposes expressed," and that the wife,
"being examined separate and apart from her said husband, and
the contents of the foregoing deed made known to her by me, she
then acknowledged that she executed the same freely, and without
fear or compulsion from anyone."
Such form of separate acknowledgment, it may be well to say, is
required by statute, in Minnesota, to give any effect to a
feme
covert's deed. After taking the wife's acknowledgment, the
notary gave the instrument to her husband. He, finding the
complainant, Drury, willing to lend as much as $12,800 upon the
property, himself filled up the blanks with the name of Drury, as
mortgagee, and with the sum just mentioned as the amount for which
the estate was mortgaged. In this form, the instrument was
delivered to Drury, who, knowing nothing of the facts, advanced the
money in good faith, and put his mortgage on record. There was no
evidence that the wife derived any benefit from the money advanced,
or that she ever knew that such a large sum was advanced.
On a bill of foreclosure brought four years afterwards by Drury
against Foster and wife, in the Federal Court for Minnesota, the
defense was that the mortgage was not the wife's deed -- a defense
which the court below thought good as to her. It accordingly
dismissed the bill as regarded her, giving a decree, however,
against the husband. The correctness of its action as regarded the
wife was the question on appeal here.
Page 69 U. S. 33
MR. JUSTICE NELSON delivered the opinion of the Court.
By the laws of Minnesota, an acknowledgment of the execution of
a deed before the proper officers, privately and apart from her
husband, by a
feme covert, is an essential prerequisite to
the conveyance of her real estate or any interest therein. And she
is disabled from executing or acknowledging a deed by procuration,
as she cannot make a power of attorney. These disabilities exist by
statute and the common law for her protection, in consideration of
her dependent condition, and to guard her against undue influence
and restraint.
Now it is conceded in this case that the instrument Mrs. Foster
signed and acknowledged was not a deed or mortgage, that on the
contrary it was a blank paper, and that in order to make it
available as a deed or mortgage, it must be taken to have been
signed and acknowledged with the design to have the blanks filled
by the husband or some other person before the delivery. We agree
-- if she was competent to convey her real estate by signing and
acknowledging the deed in blank and delivering the same to an agent
with an express or implied authority to fill up the blank and
perfect the conveyance -- that its validity could not well be
controverted. Although it was at one time doubted whether a parol
authority was adequate to authorize an alteration or addition to a
sealed instrument, the better opinion at this day is that the power
is sufficient.
Page 69 U. S. 34
But there are two insuperable objections to this view in the
present case. First, Mrs. Foster was disabled in law from
delegating a person, either in writing or by parol, to fill up the
blanks and deliver the mortgage, and second, there could be no
acknowledgment of the deed within the requisitions of the statute
until the blanks were filled and the instrument complete. Till
then, there was no deed to be acknowledged. The act of the
feme
covert and of the officers were nullities, and the form of
acknowledgment annexed as much waste paper as the blank mortgage
itself at the time of signing.
It is insisted, however, that Mrs. Foster should be estopped
from denying that she had signed and acknowledged the mortgage. The
answer to this is that to permit an estoppel to operate against her
would be a virtual repeal of the statute that extends to her this
protection, and also a denial of the disability of the common law
that forbids the conveyance of her real estate by procuration. It
would introduce into the law an entirely new system of conveyances
of the real property of
feme coverts. Instead of the
transaction's being a real one in conformity with established law,
conveyances, by signing and acknowledging blank sheets of paper,
would be the only formalities requisite. The consequences of such a
system are apparent, and need not be stated.
There is authority for saying, that where a perfect deed has
been signed and acknowledged before the proper officer, an inquiry
into the examination of the
feme covert, embracing the
requisites of the statute, as constituting the acknowledgment, with
a view to contradict the writing, is inadmissible; that acts of the
officer for this purpose are judicial and conclusive. We express no
opinion upon the soundness of this doctrine, as it is not material
in this case. The case before us is very different. There is no
defect in the form of the acknowledgment or in the private
examination. No inquiry is here made into them. The defect is in
the deed, which it is not made the duty of this officer to write,
fill up, or examine, and for the legal validity of which he is no
way responsible. The two instruments are distinct. The
Page 69 U. S. 35
deed may be filled up without any official authority, and may be
good or bad. The acknowledgment requires such authority. The
difficulty here is not in the form of the acknowledgment, but that
it applied to a nonentity, and was therefore nugatory. The truth is
that the acknowledgment in this case might as well have been taken
and made on a separate piece of paper, and at some subsequent
period attached by the officer, or some other person, to a deed
that had never been before the
feme covert. The argument
in support of its validity would be equally strong.
Our opinion is that, as it respects Mrs. Foster the mortgage is
not binding on her estate.
We may regret the misfortune of the complainant from the
conclusion at which we have arrived, but it seems to us impossible
to extend the relief prayed for by the bill of foreclosure, without
abrogating the protection which the law for ages has thrown around
the estates of married women. Losses of the kind may be guarded
against, on the part of dealers in real estate, by care and
caution, and we think that this burden should be imposed on them,
rather than that a sacrifice should be made of the rights of a
class who are dependent enough in the business affairs of life,
even when all the privileges with which the law surrounds them are
left unimpaired.
Decree affirmed.
N.B. A decree made below, on a cross-bill ordering the mortgagee
to cancel the wife's name on the mortgage, was affirmed here. The
cross-bill set up, substantially, the facts disclosed in the answer
to the original bill, and the proofs taken in each case were the
same.
