Opinion
(June Term, 1835.)
A certificate of commissioners appointed in another state, to take the private examination of a feme covert, touching the free and voluntary execution of her deed, which states merely that she "acknowledged the same to be her act and deed in due form," is not a compliance with the act of 1810, ( Rev. ch. 791,) which requires a certificate of her acknowledgment, that she executed the deed freely, and "doth voluntarily assent thereto."
An order, that a deed of a feme covert, with the accompanying commission and certificates be registered, is not conclusive that all the requirements of the statute have been complied with; and the omission of all or any of them, may be shown when the deed is offered in evidence upon any trial.
EJECTMENT for land in Wake County, brought on the joint and several demises of Rebecca W. Lucas and Simon Turner, and submitted to his Honor Judge NORWOOD, at Wake, on the last Circuit, upon a case agreed, of which the following were the material facts.
Rebecca W. Garland, on the 26th day of June, 1819, being seised in fee by descent from her father, the late David Stone, of the premises described in the declaration, executed, with the assent of John R. Lucas, to whom she was then about to be married, a deed to Simon Turner and his heirs, for an undivided moiety of the said lands, to the use of the said Turner and his heirs, in trust for herself, until Hannah Garland her daughter by a former marriage, should arrive to the age of eighteen years, or should marry, and then in trust for the said Hannah. The consideration for this deed was expressed to be one dollar, and the love and affection which she bore her daughter. Soon afterwards the said Rebecca intermarried with the said John R., and on the 12th day of April, 1822, they being then residents of the county of Brunswick, in Virginia, for and in consideration of $5,000, executed a deed of bargain and sale to Thomas Cobbs, of the city of Raleigh, for all the lands mentioned in the declaration, as well the moiety conveyed to Simon Turner by the deed aforementioned, as that retained by the said Rebecca. Attached to the deed to Cobbs, which formed a part of the case, appeared the following commission, and certificate. "The Commonwealth of Virginia to Thomas Orgain and Edward B. Hicks, Esquires, greeting. Whereas, John R. Lucas and Rebecca his wife, by their certain indenture of bargain and sale bearing date the 12th day of April, 1822, have sold and conveyed unto Thomas Cobbs, five hundred and twenty-one acres of land with the appurtenances, lying and being in the County of Wake and state of North Carolina: And whereas, the said Rebecca cannot conveniently travel to the said county and state aforesaid, to make acknowledgment of the said conveyance: Therefore we do give unto you power to receive the acknowledgment which the said Rebecca shall be willing to make before you of the conveyance aforesaid, contained in the said indenture which is hereunto annexed; and we do therefore empower you, to receive the acknowledgment of the said Rebecca of the same, and examine her privily and apart from the said R. Lucas her husband, whether she doth the same freely and voluntarily without his persuasions or threats, and whether she be willing that the same should be recorded in the state aforesaid according to law. And when you have received her acknowledgment, and examined her as aforesaid, that you distinctly and openly certify the same under your seals, sending the said indenture and this writ. Witness Robert Turnbull, clerk of our Superior Court of law of the County of Brunswick, in the state of Virginia, this 12th day of April, 1822. In the 46th year of our foundation.
(Signed) R. Turnbull.
"State of Virginia, Brunswick County to wit. Pursuant to the foregoing commission to us directed, we did this day examine Rebecca Lucas, privily and apart from her husband, touching her acknowledgment of the indenture mentioned in the foregoing commission, and hereto annexed, and she the said Rebecca, acknowledged the same to be her act and deed in due form. Given under our hands and seals this the 28th day of May, 1822.
(Signed) Edwd. B. Hicks, [L. S.] Thos. Orgain, [L. S.]"
To the deed was also annexed a certificate of the Governor of Virginia, under the great seal of that state, stating that the Superior Court of law of Brunswick County, was a Court of record, and that Robert Turnbull was clerk thereof. The deed, with the commission and certificates attached was then exhibited to one of the judges of this state, when the following certificate, and order for registration was made: "State of North Carolina, 15 Nov. 1822. The execution of the within deed was then acknowledged before me in due form of law, by J. R. Lucas, the bargainor. Therefore let it be registered." There was no other order of registration. On the deed there then appeared a certificate of registration in the following words. "The within deed and acknowledgments are all duly registered in the Register's Office of Wake County, in the state of North Carolina, in book No. 5, and pages 319 and 320, the 14th day of December, A.D. 1822."
In the month of July, 1831, John R. Lucas died, leaving the said Rebecca his wife (who is one of the lessors of the plaintiff,) surviving; and in October, 1833, Hannah the daughter of the said Rebecca, named in the deed to Turner, married. The other lessor of the plaintiff, is the trustee in the deed first above mentioned.
The plaintiff insisted, that the deed to Cobbs, never became the deed of the said Rebecca, for want of any privy examination sufficient in law to give it operation against her. And also, that if the said deed to Cobbs was valid as the deed of the said Rebecca, yet that the deed to Turner being also valid in law, the plaintiff was entitled to judgment as lessee of Turner.
The defendants insisted that the deed to Cobbs was valid, and that the deed to Turner being for consideration of blood only, was voluntary and could not prevail against the purchaser, Cobbs. The parties agreed, that if the Court should be of opinion, that the plaintiff was entitled to recover, whether as lessee of Turner and Mrs. Lucas, or of either of them, either the whole or an undivided part of the premises, then judgment was to be entered accordingly for him with six pence damages and costs; otherwise judgment to be for the defendants.
His Honor being of opinion that the plaintiff was entitled to recover the whole land mentioned in the declaration, gave judgment accordingly, from which the defendants appealed.
Devereux, for the defendant.
Badger, and W. H. Haywood, contra.
— Several questions have been raised by counsel in the argument of this cause. We deem it unnecessary, however, to advert to but one of the points made with respect to the validity of the deed to Cobbs, as we deem that decisive of the case. It is this. Suppose every other objection to the validity of that deed to be removed by the authorities adduced, and arguments made by the defendant's counsel, (upon which by-the-by we give no opinion) still the certificate of the private examination, and the acknowledgment of the deed by the feme covert, before the commissioners, does not find and disclose the very essential and important fact, that she executed the deed freely, and voluntarily assented thereto. The act of 1810, ( Rev. ch. 791,) expressly requires that the Judge or commissioners in another state or territory, shall privately examine the feme covert, "whether she doth voluntarily assent thereto, and an attestation of such acknowledgment shall be endorsed on, or affixed to said deed or commission, by the Judge or commissioners." What acknowledgment is to be indorsed or affixed? Why, that she acknowledged that she did execute the deed then exhibited to her, when she was privately examined, and furthermore that she acknowledged, that she "voluntarily assented thereto." The defendant's counsel, say that this objection to the validity of the deed is removed by the fact, that the commission is in due form, and that it directed the commissioners to ascertain whether the feme covert "voluntarily assented thereto;" and that the certificate of the commissioners, is to be taken by the Court, by necessary intendment, to be an affirmative response to that part of the direction contained in the commission; and that the certificate of her acknowledging it to be her act and deed in due form, contains, in substance, an allegation that it was done according to law, or to the requirements of the commission. The commission, it is true, is good both in form and substance, provided an order of the court from which it issued, had been obtained for issuing the same, and naming the commissioners; but whether such an order ever was obtained, does not appear in the case. We do not now mean to give any opinion, whether such an order was necessary; or whether the issuing the commission is evidence of an order having been made. Admitting the validity of the commission, this argument is plausible, but we do not think it solid. The deed of a feme covert, is not like that of an infant, voidable; but it is void. In pleading she may discharge herself under non est factum.
By the divine, as well as the common law, the wife is under the power and dominion of her husband; all her acts affecting her rights, are therefore presumed to be done under his influence and coercion. The real estate of the wife does not pass to the husband by the marriage. When the husband and wife make a deed to pass her lands, the law presumes that it is done by his authority over her, and without further ceremony it is void. But her real estate is not entirely tied up; she and her husband may convey, when she shall voluntarily assent to convey. To repel the presumption of the husband's influence over her, and to ascertain her free consent, the law requires that she should be privately examined, by persons of great trust and confidence, a Judge or member of some Court of record, or by two commissioners, who can explain to her her rights, and protect her in the enjoyment of them; persons who are to certify, that she did acknowledge that she executed the deed with her own free and voluntary assent. In the present case, the commissioners' certificate, stating that she did acknowledge the same to be her act and deed in due form, is too vague and uncertain. We cannot tell what is meant by the words "due form." Whether the words "in due form," applies to her having signed, sealed and delivered the deeds, or to having done these things, and also that they were done with her free and voluntary assent, leaves us in uncertainty, doubt and conjecture. The law never intended that femes covert, should be deprived of their titles to their lands, but upon the most clear and satisfactory proof that they had freely consented to part with the same. Knowing the influence of the husband, the law is careful and watchful to protect them against that influence. When deeds of this description are properly proved, the statute requires that an order should be made by a Judge, or the County Court, that the deed and the accompanying documents should be registered. The commission and certificates are required to be registered, that the court may at all times see, that every thing required by law to divest the feme covert of her title, had been complied with; and also, that the vendee, or those who claim under him, may be always enabled, when they offer the deed in evidence, to show to the Court, that the title had passed from the feme covert according to all the requirements of the statute. The order for registration is not conclusive as to these requirements; the omission of all or any of them, may be shown when the deed is offered in evidence upon any trial. From the case, as stated, it does not appear to us, that Mrs. Lucas, freely and voluntarily assented to part with her lands, when she signed, sealed and delivered the deed to the defendant Cobbs, or when she was privately examined. Therefore, the plaintiff as lessee, is entitled to recover an undivided moiety upon each of the several demises of Rebecca W. Lucas and Simon Turner. The judgment of the Superior Court is affirmed.
PER CURIAM. Judgment affirmed.