An irregular act of practice by an attorney of record
rebuked.
A deed, dated May 26, 1856, by C. L., grantor, described as
"sister and heir-at-law of H. M." and as "of the County of St.
Clair and State of Michigan," which conveyed to the grantee a tract
of land in Illinois and was signed and sealed by C. L. and by W.
L., the name of W. L. not appearing in the granting clause of the
deed, and which was acknowledged May 27, 1856, by said "C. L. and
W. L. her husband,"
held sufficient to pass said title of
husband and wife under the statute of Illinois of February 22,
1847, then in force, respecting the conveyance of lands or real
estate situate in Illinois by a
feme covert not residing
within the state, and respecting her joining with her husband in
the execution of the deed.
A magistrate's certificate, attached to a deed of land in
Illinois, that on the 27th of May, 1856, personally came C. L, and
W. L., her husband, "known
Page 120 U. S. 576
to me to be the persons who executed the foregoing instrument,
and acknowledged the same to be their free act and deed" is
equivalent to stating that they came before the officer and were
personally known to him to be the real persons who subscribed the
deed, and in this respect complied with the requirements of the
statutes of Illinois then in force.
An officer's certificate of the acknowledgment on the 27th May,
1856, of a deed of land in Illinois by a married woman, showing her
privy examination separate and apart from her husband, and which
shows that she, "fully understanding the contents of the foregoing
instrument, acknowledged," &c., is a sufficient compliance with
the statutes of the state in force at that time respecting the
communicating the contents of such a deed to her.
Ejectment. Plea, general issue. Judgment for defendant.
Plaintiff 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 is an action of ejectment in which the plaintiff in error
claims title to certain real estate in Cook County, Illinois, of
which Pullman's Palace Car Company is in possession. A jury having
been waived, the case was tried by the court pursuant to a
stipulation between the parties that judgment should be entered for
the defendant if the court was of opinion that a certain deed was
valid and binding as a conveyance by husband and wife of the real
estate therein described. The deed, and the certificate of
acknowledgment annexed thereto, referred to in the stipulation, is
as follows:
"This indenture, made this twenty-sixth day of May in the year
of our Lord one thousand eight hundred and fifty-six, witnesseth
that I, Christina Lynn, sister and heir at law of Henry Millspaugh,
deceased, who was a recruit of Lieutenant T. W. Denton, of
Thirteenth Regiment United States Infantry, war of 1812, with Great
Britain, of the County of St. Clair and State of Michigan, party of
the first part, in consideration
Page 120 U. S. 577
of the sum of forty-three dollars in hand paid by Milton &
Thomas C. McEwen, of the County of Orange and State of New York,
party of the second part, the receipt of which is hereby
acknowledged, do hereby release, grant, bargain, and quitclaim unto
the said party of the second part, their heirs and assigns forever
all her right, title, claim, and interest in that certain tract of
land granted by the United States unto David Millspaugh and
Christina Lynn, the brother and sister and only heirs at law of
Henry Millspaugh, deceased, as follows, to-wit [here follows a
description of the land] . . . to have and to hold the said
premises, with all the appurtenances thereunto belonging or in
anywise appertaining, to their only proper use, benefit, and behoof
of said parties of the second part, their heirs and assigns,
forever."
"In witness whereof, the said grantors have hereunto set our
hands and seals the day and year first above written."
"CHRISTINA LYNN [Seal]"
"WILLIAM LYNN [Seal]"
"Signed, sealed, and acknowledged in presence of:"
"MARY A. LYNN"
"OBED SMITH"
"State of Michigan, County of St. Clair, ss.:"
"On this twenty-seventh day of May, A.D. 1856, before me, a
justice of the peace in and for said County of St. Clair,
personally came Christina Lynn and William Lynn, her husband, known
to me to be the persons who executed the foregoing instrument, and
acknowledged the same to be their free act and deed, and the said
Christina Lynn, having been by me privately examined separate and
apart from the said husband, and fully understanding the contents
of the foregoing instrument, acknowledged that she executed said
deed freely and without any force or compulsion from her said
husband or from anyone."
"OBED SMITH"
"
Justice of the Peace"
The court being of opinion that the deed was valid to pass to
the grantees all the right, title, and interest of Christina
Page 120 U. S. 578
Lynn and William Lynn her husband in the real estate therein
described, entered judgment for the defendant on its plea of not
guilty.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the court.
Before entering upon the consideration of the case, it is proper
to notice the motion made in behalf of the plaintiff in error to
strike out certain parts of the printed argument filed by the
counsel for the defendant in error. Notwithstanding the agreement
that the case should be heard in the court below upon the single
question referred to in the stipulation, the counsel for the
defendant in error states many things which he declares to be
"incontrovertible facts" and within the knowledge of opposing
counsel, but which are wholly unsustained by anything in the
record. The motion to strike out relates to those matters. The
excuse given for this breach of professional propriety is "the
extreme brevity of the record." But it is the same record upon
which counsel for the company succeeded for his client, and which,
by agreement, contained all that was to be submitted to the court.
The excuse given furnishes no apology whatever for his violation of
the terms of the stipulation. Much less does it palliate his
attempt to influence the decision here by reference to matters not
in the record, and which he must have known could not be taken into
consideration. It is only necessary to say that the facts
dehors the record, which have been improperly introduced
into the brief of the counsel for the defendant in error, have not
in any degree influenced our determination of the case.
The plaintiff insists that the deed was void under the laws of
Illinois, upon two grounds: 1. that the husband is not a party to
the deed; 2. that the acknowledgment is defective. In
Lane v.
Soulard, 15 Ill. 123, it was held that the Revised Statutes of
Illinois of 1845 repealed all former laws on the subject of
conveyances of real estate, and authorized married women within
that state to convey land by joining with their husbands, and
acknowledging the deeds in a specified way; but that no provision
was made for the conveyance by nonresident married women of their
lands in Illinois until the passage of the act of February 22,
1847.
See also Higgins v. Crosby, 40 Ill. 260,
Rogers
v. Higgins, 48 Ill. 211.
Page 120 U. S. 579
This case depends mainly upon the construction to be placed upon
the second section of the latter act, which was in force when the
deed of May 26, 1856, was executed. That section is as follows:
"When any
feme covert, not residing in this state,
being above the age of eighteen years, shall join with her husband
in the execution of any deed, mortgage, conveyance, or other
writing of or relating to any lands or real estate situate within
this state, she should thereby be barred of and from all estate,
right, title, interest, and claims of dower therein in like manner
as if she was sole and of full age. And any such
feme
covert joining with her husband in the execution of a power of
attorney or other writing authorizing the sale, conveyance, or
other disposition of lands or real estate as aforesaid shall be
bound and concluded by the same in respect to the right, title,
claim, or interest in such estate as if she were sole and of full
age as aforesaid, and the acknowledgment or proof of such deed,
mortgage, conveyance, power of attorney, or other writing may be
the same as if she were sole, and shall entitle such deed,
mortgage, conveyance, power of attorney, or other writing to be
recorded as is authorized by this act, and the provisions of this
section shall apply to deeds, mortgages, conveyances, powers of
attorney and other writing heretofore as well as these which may
hereafter be executed."
2 Scates, Treat & Blackwell's Stat. Ill. 965; 1 Gross'
Stat.Ill. c. 24, § 24; 1 Adams & Durham's Real Estate Stat.
& Decisions Ill. 175.
Did Christina Lynn, within the meaning of that statute, "join
with her husband in the execution" of the deed of 1856? The
plaintiff contends that she did not, because the name of the
husband is not expressly designated in the body of the deed as a
grantor. It is argued that as William Lynn, the husband, had during
coverture a freehold interest jointly with his wife in her estate
of inheritance, with absolute ownership of the rents and profits of
the wife, the requirement in the act of 1847, that she should join
him in the execution of any deed for real estate, was a recognition
of his supremacy and right of control, and necessarily implied that
he, as grantor, so
Page 120 U. S. 580
named in the granting or operating clauses, must pass whatever
interest he had, and thereby also express his willingness that the
wife should convey her title or estate. While this position is
sustained by some adjudications, it is necessary to inquire as to
the state of the local law, for the rights of the parties must be
governed by the requirements of that law in respect to the mode in
which real property situated within the limits of that state may be
conveyed or transferred.
United States v.
Crosby, 7 Cranch 115;
Clark
v. Graham, 6 Wheat. 579;
McCormick v.
Sullivant, 10 Wheat. 202;
Suydam
v. Williamson, 24 How. 433;
Brine v. Ins.
Co., 96 U. S. 627.
In
Johnson v. Montgomery, 51 Ill. 185, the question was
whether dower was barred by a deed executed in 1853, in Ohio,
conveying lands in Illinois belonging to the husband, the wife
signing the deed, and duly acknowledging it before a proper
officer. But the wife was not named in the body of the deed, nor
was her right of dower referred to therein in any way. It is true,
as suggested by counsel for the plaintiff in error, that an
inchoate right of dower is not a present estate in lands, and that
the court in that case expressly waived any decision of the
question whether the deed then before it would have been good under
the act of 1847, and placed its decision entirely upon the
twenty-first section of the statute of conveyances of 1845. That
section provides that it shall be lawful
"for any married woman to release her right of dower of, in, and
to any lands and tenements whereof her husband may be possessed or
seized by any legal or equitable title during coverture by joining
such husband in the deed or conveyance for the conveying of such
lands and tenements, and appearing and acknowledging the same,
etc., . . . which [certificate of privy examination] being
recorded, together with the deed, duly executed and acknowledged by
the husband according to law, shall be sufficient to discharge and
bar the claim of such woman to dower in the lands and tenements
conveyed by such deed or conveyance."
1 Adams & Durham 133; Rev.Stat.Ill. 1845, p. 107. The court,
after observing that the deed merely extinguished the wife's
contingent
Page 120 U. S. 581
right of dower, and did not pass any estate she had in the land,
said:
"This precise question has not hitherto been presented, but we
entertain no doubt it has always been supposed by both the people
and the profession in this state that a married woman, signing her
husband's deed and being properly examined before an officer, and
causing his certificate of that fact to be placed upon the deed,
would bar her dower in the premises conveyed, although her name
nowhere appeared in the body of the deed. By signing the deed, she
'joins' in it, and, having done this, her dower is barred if she
takes the other steps pointed out by the statute."
This decision bears somewhat on the question as to what the
local statutes mean when they require the wife to join with the
husband in a conveyance of real estate.
In
Miller v. Shaw, 103 Ill. 290, one of the questions
was whether a certain conveyance by a married woman, living in
Illinois with her husband, passed the title to her separate real
property situated in that state, the husband not joining with her
in the granting clause of the deed. The statute in force when the
deed was made prescribed the mode in which the husband and wife,
residing in Illinois, could convey the real estate of the wife. Act
OF 1845, § 17, p. 106; 1 Adams & Durham 127, 128. It made it
lawful for the husband and wife to "execute" any grant, lease,
deed, or conveyance of such estate. The court said:
"That which this statute requires to be done to enable the wife
to convey her separate property is that she and her husband shall
execute the deed, and after that she shall appear before a proper
officer and acknowledge the same in the mode pointed out in the
statute, and, such deed being acknowledged or proved according to
law by the husband, it will be as effectual to pass the title to
the wife's separate property as the deed of an unmarried woman
would be to convey her property. All this was done in this case.
Both Mrs. Sheldon and her husband executed the deed to Ward, and
afterwards she appeared before a proper officer and acknowledged it
in conformity with the statute, and the acknowledgment of her
husband to the deed being according to law, that seems to be all
the law requires to be done to
Page 120 U. S. 582
make the deed effectual to pass the title to the wife's separate
estate."
The latest case to which our attention has been called is
Yocum v. Lovell, 111 Ill. 212. By a statute of Illinois,
every householder is declared to be entitled "to an estate of
homestead," to a specified amount, in the farm or lot of land, and
buildings thereon, owned or rightly possessed, by lease or
otherwise, and acquired by him or her as a residence, such
homestead, and all right and title therein, being exempted from
attachment, judgment, levy, execution, or sale for the payment of
his debts or sale for the payment of his debts laws of conveyance,
descent, and devise, as provided in that statute. The exemption
continues after the death of the householder, for the benefit of
the surviving husband or wife, so long as he or she occupies such
homestead, and of the children until the youngest child become
twenty-one years of age. The statute also provides that
"No release, waiver, or conveyance of the estate so exempted
shall be valid unless the same is in writing, subscribed by said
householder and his or her wife or husband, if he or she have one,
and acknowledged in the same manner as conveyances of real estate
are required to be acknowledged, or possession is abandoned or
given pursuant to the conveyance, or, if the exemption is continued
to a child or children, without the order of the court directing a
release thereof."
Rev.Stat.Ill. 1874, p. 497. In the case last cited, the question
was whether a trust deed expressly relinquishing the homestead
right was effectual for that purpose, the name of the wife not
appearing in the granting clause of the deed, though it was signed
and duly acknowledged by herself and husband in conformity with the
statute. The court held the deed to be sufficient to pass the
interest of both husband and wife in the estate of homestead,
observing that the statute did not require the name of the husband
or wife to appear in the body of the deed. Referring to Miller v.
Shaw as presenting an analogous question, the court said:
"In the case now being considered the wife joins with her
husband in the release of the homestead in precisely the same
manner as the husband did with the wife in the case cited. "
Page 120 U. S. 583
While those cases do not cover the precise question under
consideration, we are of opinion that under the principles
announced in them, the deed of May 26, 1856, must be upheld as a
valid transfer, under the law of Illinois, of the interest of
Christina Lynn and her husband. If, as adjudged by the supreme
court of the state, the wife, whose name did not appear in the
operative clause of the husband's conveyance of his lands, is to be
held as having joined him therein and surrendered her right of
dower by simply signing the deed and acknowledging it in conformity
with the statute, and upon privy examination duly certified; if,
under a statute making it lawful for husband and wife "to execute"
a conveyance of her real estate, they will both be held to have
executed a conveyance of her separate property where her name
appears, but that of the husband does not appear, in the granting
clause of the deed, but they both sign and acknowledge it in the
mode required by law, and if the wife's "estate of homestead" can
be conveyed by a deed, signed and duly acknowledged by herself and
husband, her name, however, not appearing in the body of the deed,
it would seem to follow that within the meaning of the act of 1847,
and according to the tendency of the decisions of the supreme court
of the state, the wife joins with her husband in the execution of a
conveyance of her estate of inheritance where her name alone
appears in the granting clause, but the deed is signed by both
herself and husband, is acknowledged by both, and is certified as
required by law. Such conveyance, so signed, acknowledged, and
certified, of the wife's land seems to be as effectual under the
local law to invest the grantee with the title and interest of both
husband and wife as if his name had also appeared in the granting
clause.
If, as suggested, the purpose of the act of 1847 in requiring
the wife to join the husband in the execution of conveyances of her
real estate was to protect her against strangers, and secure his
cooperation and counsel, that object was as fully accomplished by
his signing and acknowledging the deed with her as it would have
been by designating him in the body of the deed as co-grantor with
the wife.
Page 120 U. S. 584
It is proper to say that the question under consideration is not
free from difficulty, and we should have been glad to be guided, in
our determination of it, by an express decision of the highest
court of the state. The conclusion reached by us is more in harmony
with what that court has held in cases somewhat analogous than
would be a decision adjudging the deed of 1856 to be void.
One other question remains to be considered. It is contended
that the certificate of acknowledgement is fatally defective for
two reasons: 1st, it does not appear that Mrs. Lynn was personally
known to the magistrate or that she was proved by a credible
witness to be the same person as the one who subscribed to the
deed; 2d, it does not appear that she was informed of the contents
of the deed.
In support of these objections, the counsel for the plaintiff in
error relies upon the 20th section of the chapter on "Conveyances"
in the Revised Statutes of 1845, p. 107. That section provides:
"No judge or other officer shall take the acknowledgment of any
person to any deed or instrument of writing as aforesaid unless the
person offering to make such acknowledgment shall be personally
known to him to be the real person who and in whose name such
acknowledgment is proposed to be made, or shall be proved to be
such by a credible witness, and the judge or officer taking such
acknowledgment shall, in his certificate thereof, state that such
person was personally known to him to be the person whose name is
subscribed to such deed or writing, or having executed the same, or
that he was proved to be such by a credible witness (naming
him),"
etc. That chapter was amended by the Act of February 11, 1853,
the first section of which provides
"That no deed, mortgage, or other instrument of writing,
heretofore executed or hereafter to be executed by husband and
wife, in good faith, for the purpose of conveying or encumbering
the estate of the husband, or the estate of the wife, or the right
of dower in any lands situate in this state, and acknowledged by
them before any officer authorized by the laws of this state to
take acknowledgments, shall be deemed, held, or adjudged invalid or
defective or insufficient in law by reason
Page 120 U. S. 585
of any informality or omission in setting forth the particulars
of the acknowledgment before such officer, as aforesaid, in the
certificate thereof,
provided however that it appears in
substance from such certificate that the parties executing said
deed, mortgage, or other instrument of writing executed the same
freely and voluntarily and that, in case of married women executing
the same, it appear in substance that they knew the contents or
said deeds, mortgages, or other instruments of writing, and that
they were examined by the officer aforesaid, separate and apart
from their husbands."
1 Adams & Durham 185.
It was said in
Lindley v. Smith, 46 Ill. 527, that the
requirement that the certificate should show that the person
acknowledging it was personally known to the officer to be the
person whose name is subscribed to the deed, or was proved to be
such by a credible witness, was one of substance and salutary in
its operation, and was not dispensed with by the act of 1853, and
that "it is the acknowledgment of the
feme covert which is
the operative act to pass her title."
See also Murphy v.
Williamson, 85 Ill. 152. Assuming this to have been the
settled law of Illinois when the deed in question was executed, and
that the case on this point is governed by the Revised Statutes of
1845, the result claimed by the plaintiff in error does not follow.
The cases cited do not sustain the objection to the certificate of
acknowledgment. In
Lindley v. Smith, one of the cases
relied upon by the plaintiff in error, there was no language in the
certificate of the wife's acknowledgment from which it could be
inferred that she was either personally known to him or was proved
by a witness to be the person who had, as wife, signed the deed. To
the same class belong the cases of
Heinrich v. Simpson, 66
Ill. 57, and
Coburn v. Herrington, 114 Ill. 107. The
officer's certificate in this case states that
"Personally came Christina Lynn and William Lynn, her husband,
known to me to be the persons who executed the foregoing
instrument, and acknowledged the same to be their free act and
deed."
This is in substance a statement that they came before the
officer and were personally known to him to be the real persons who
in fact subscribed and acknowledged the deed.
Page 120 U. S. 586
The objection that the officer's certificate does not state that
she was informed formed of the contents of the deed -- if it have
any force whatever under the act of 1847, permitting the
nonresident
feme covert to acknowledge her deeds as if she
were unmarried -- is not well taken. The certificate shows that she
executed the deed freely, and without force or compulsion from the
husband or from anyone else, "fully understanding the contents"
thereof. Besides, this defect, if it be one, is of the kind that
was cured by the act of 1853, which only required it to appear, in
substance, as it does here, that the deed was executed freely and
voluntarily, and in the case of a married woman, that she knew its
contents, and was examined separately and apart from her husband.
She must have known if, as certified, she fully understood, the
contents of the deed.
The judgment below was right, and is
Affirmed.