Sexton v. Pickering.
October, 1825.
Deed — Execution by Wife — Evidence of — Certificate of flagistrate. — The certificate of magistrates of other States, has been sufficient evidence of the execution of a deed by a feme covert, since the Act of 1814; but until the Act of 1819, the certificate of such magistrates was not evidence of the execution of deed, by other persons than feme coverts.
Same — Same—What Necessary to Validity. — The deed of a feme covert, to be valid, must be executed by the husband also.
Same — Same—Same.—But if it appears by sufficient evidence, that the deed was executed by a feme covert, it would be completely valid as to her, if it appears, by the testimony of even a single witness, that it has been executed by the husband also.
Joseph Sexton filed his bill in the Winchester Chancery Court, stating, that in June, 1815, he purchased of Joshua Pickering, of Pennsylvania, his interest in a certain tract of land in the county of Frederick, being an undivided moiety of a tract that had been devised to him and his *628brother John, by their father; subject to the incumbrance of their mother’s dower: that in a conversation between the plaintiff and the said Joshua, the latter represented that *the said tract contained largely upwards of 400 acres; in consideration of which, the plaintiff agreed to give the said Joshua $1000, $400 of which were to be paid on or before the 15th of August, then next following, and the re.mainder on or before the 1st of February, 1817; and upon the first payment being made, the said Joshua would convey the land to the plaintiff; and the plaintiff would either give bond and security for the remaining $600, to be paid at the time above-mentioned, or he should give a deed of trust on the land, for the security of the said balance; all which terms were reduced into the form of an agreement, signed and sealed by both parties: that the plaintiff paid the said $400, and executed his obligation with security, for $600, according to the agreement, and the defendant signed.a conveyance for the land, and promised that his wife would sign the same, and have it properly certified and authenticated, so as to relinquish her dower, before the obligation became due; that the plaintiff immediately commenced improving the said land, in which he expended several thousand dollars; by which means he had greatly added to its value. [N. B. The charge of a deficiency, being denied by the answer, and not supported by evidence, it is unnecessary to make any further mention of it.] The plaintiff charges, that the wife of the said Joshua did not sign the deed, before the said bond became due, nor at any time since: that, nevertheless, the said Joshua had brought suit on the said bond, obtained judgment, issued execution, upon which a forthcoming bond was taken, and judgment was given on the forthcoming bond. He therefore, prayed an injunction, to stay further proceedings on the said bond.
The Chancellor granted the injunction as to $200, on the ground of the failure of the wife to relinquish her dower. But upon a petition filed by the plaintiff, supported by affidavits, (stating that an injunction for only $200 would be inadequate to the purposes intended, as the land is worth, by his improvements, four or five times as *much as it was originally worth,) the Chancellor extended the injunction to the whole of the judgment at law.
Pickering answered, referring to the written agreement for the terms of the contract. He admits, that at the time of the execution of the agreement, and when the $400 were paid, he did give the plaintiff assurances that his wife’s dower should be relinquished, but that the plaintiff himself was to come up to the place of residence of the defendant, and have the business done himself, to his 'own satisfaction: that both he and his wife have been always ready to complete the conveyance by the relinquishment of dower;. and as evidence of it, he filed a deed purporting to be executed by him and his wife, and her dower relinquished and certified according to law, &c.
The deed above-mentioned, purports to be executed by Pickering and his wife, and to be executed in the presence of two witnesses. There is also a certificate by two justices of the peace of Bedford county, in the State of Pennsylvania, that Joshua Pickering, and Sophia, his wife, acknowledged, before them, that the said instrument was their act and deed, and desired that it might be recorded; and that the said Sophia was examined privily and apart from her husband, and that she willingly signed and sealed the same, and consented that it might be recorded. To this is added, a certificate of the prothonotary of the Court of Common Pleas, for the same county, stating that the persons who signed the foregoing certificates, were justices of the peace for the said county.
The injunction was afterwards, on motion, dissolved, when the defendant should file with the clerk of the Court, bond with good security, in the penalty of $500, conditioned to abide by and perform the orders and decree, which may be made against him in this suit.
From this order, Sexton appealed.
Nicholas, for the appellant,
contended, that the deed was not proved according to law, and, therefore, the condition *had not been performed, on which only the bond was to have been paid. Fie referred to 1 Rev. Code, 157, 357, (Pleasants’ edit.) Ib. 363; 1 Rev. Code, 365, (1819.) The acknowledgment of the wife was inoperative, unless the deed had been previously executed by the husband, file witht the clerk of the Court, bond with
Leigh, for the appellee,
said, that the relinquishment of dower might be made before the deed was executed by the husband.
October 18.
JUDGE CABELL,
delivered the opinion of the Court.
Pickering, living in Pennsylvania, contracted to sell to Sexton, of Frederick county, in this State, his interest in certain lands in that county, for $1000, of which $400 were to be paid on or before the 15th of August, 1815, and the residue, on or before the 1st of February, 1817. It was stipulated in the articles of agreement, that upon the first payment being made, Pickering was to convey the land with warranty against himself, and all persons, claiming by, through, or under, him. The first payment was made; and it appears, both from the bill and answer, and also from the testimony of two witnesses, that Pickering executed a deed conveying his interest in the lands. It is highly probable that this deed was duly proved and recorded, as to Pickering; for Sexton, in his bill, makes no complaint of the want of a conveyance from Pickering, but complains that Mrs. Pickering had not relinquished her right of dower; and it is evident, both from the bill and answer, that although Sexton received the deed from Pickering, it was received in the perfect understanding between the parties, that Mrs. Pickering was to relinquish her dower, before the second payment. This, however, was not done before *629that payment became due. In the *mean time, Sexton had made valuable improvements on the land. Pickering brought suit and recovered a judgment for the balance of the purchase money; and Sexton obtained an injunction on two grounds; first, that there had been a misrepresentation as to the quantity of the land; and secondly, that the dower had not been relinquished. The fact of misrepresentation as to quantity, being denied by the answer, and unsupported by testimony, may be regarded as out of the case. It is very clear, however, that it was right to award the injunction, on the ground that Mrs. Pickering’s right of dower had not been relinquished. But it is contended, that the dower has been relinquished since, and the deed which Pickering filed with, and made a part of, his answer, is referred to as evidence of the fact. That deed appears to have been duly executed by the wife; and it would be completely effectual for the purposes for which it was intended, if it appeared that the husband also had executed it. The certificate of magistrates of other States, has been sufficient evidence of the execution of a deed by a feme covert, since the act of 1814; but it was not until the law of 1819, that the certificate of such magistrates was made evidence of the execution of deeds, by other persons than feme coverts. Pickering, in his answer, refers to the deed, as having been executed by his wife; but he does not say that he had executed it; nor is there any proof whatever of its execution by him, except the certificate of magistrates, which, as before, observed, could not be received to that effect. Whatever the fact, therefore, may have been, we can regard this deed as one executed by Mrs. Pickering only. But the deed of a feme covert, to be valid, must be executed by the husband also. We cannot, therefore, say, that Mrs. Pickering has relinquished her dower in this land; and if it was right to award the injunction, on this ground, it was equally proper that it should be continued.
The requisition of bond and security from Pickering, was not sufficient for the purposes of justice, in this case. *The land had been greatly improved in value; two witnesses deposing, that Mrs. Pickering’s dower is now worth the price originally contracted to be given for the whole tract.
It may not be improper to observe, that as it appears by sufficient evidence, that the deed was executed by Mrs. Pickering, it would be completely valid as to her, if it had appeared by the testimony of even a single witness, that it had been executed by her husband also.
The order of the Chancellor, dissolving the injunction, is therefore reversed, and the cause remanded, &c.