Sewall v. Haymaker

This was an action to recover 42 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 20 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 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, § 875. 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, Va., 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.]

'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 certaind eed 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 proven by John Sinclair until after the death of his wife, 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 incumbrance 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 Laws, 346; 1 Swan & C. St. 458, 465. The statute of Virginia applicable to the case was the act of February 24, 1819, (Rev. 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 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 considertion, not having notice thereof, or any creditor, unless the same writing be acknowlede d 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 her act, such privy examination, acknowledgment, and declaration shall thereupon be entered of record in such court; and if, before any 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, pr suant 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 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 Swan & C. St. 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 18 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 incumbered 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 incumbrance 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, and shall read or otherwise make known to her the contents of such deed, mortgage, or other imstrument 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.'

C. B. Matthews, for plaintiffs in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.