井

CONVEYANCES.

Act of February 24, 1819-January 1, 1820. R. C. ch. 99.

8. § 15. 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 shewn and explained to her, and wishes not to re-
tract it, and shall, before the said court, acknowledge the said writing, so again
shewn to her, to be her act, such privy examination, acknowledgment and de-
claration, shall be thereupon entered of record in such court and if, before
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 (i) 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, (3) sealed and
delivered the same, and that she wished not to retract it, and such privy exa-
mination, acknowledgment and declaration shall be certified by such justices,
under their hands and seals, by a certificate annexed to the 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
and hereunto annexed, personally appeared before us(k) in our county
(or corporation) aforesaid; and, being examined by us,(l) privily(2) and apart

made before execution, is sufficient to avoid
it, on the plea of non est factum. The pre-
sumption in such a case is, that the altera-
tion was made after the execution of the
deed. Per Washington, J. Prevost v. Gratz
et al. 1 Peters's Rep. 369; and see Davis v.
Oliver, 1 Ridgw. P. C. 9, 10; and the re-
marks of Story, J. in Speake et al. v. U.
States, 9 Cranch, 37.

Where a party sues on an instrument,
which, on the face of it, appears to have
been altered, it is for him to shew that the
alteration has not been improperly made.
Henman v. Dickinson 5 Bing. 183 Jack
son v. Osborn, 2 Wend. 555.

As to filling up blanks, see Hudson v.
Revett, 5 Bing. 638; U. S. v. Nelson &
Myers, 2 Brock. C. Ct. R. 64.

This act does not prescribe that the jus-
tices, taking the acknowledgment, shall
transmit the deed, under their seals, to the
clerk, for record. The practice is, to deli-
ver the deed, open, to the party whose inte-
rest or duty it is to place it on record. This
practice, (which is believed to be pretty ge-
neral,) is not calculated to guard against
fraud, but on the contrary, to open a door
to it, thereby giving rise to the question just
presented.

Land sold being erroneously described in the conveyance executed by vendor, mistake corrected on bill in equity filed by vendee. Long's ex'r, &c. v. Israel et al. 9 Leigh, 556.

(i) See Co. Litt. [353 b] Webster's lessee v. Hall, 2 Har. & M'Hen. 21-2-3; Battin's lessee v. Bigelow, 1 Peters's R. 453; Jones Maffet et ux. 5 Serg. & Raw. 534; Watson v. Mercer et al. 6 Serg. & Raw. 49.

V.

22

day of

(3) The deed must be signed by the wife, and be certified as in this sec. prescribed. Tod v. Baylor, Court of Appeals, May 2d, 1833, 4 Leigh, 498.

In the commission for the privy examina-
tion of a feme covert, touching a deed exe-
cuted by husband and wife, and in the certi-
ficate of the privy examination and acknow-
ledgment of the wife, under the stat. of
1792, 1 Old Rev. Code, c. 90, § 6, it is not
necessary, that the requisitions of the stat.
be literally followed, to make the deed bind
ing on the wife; it is enough if they be
substantially complied with. Langhorne v.
Hobson, 4 Leigh, 224. A certificate, (under
the act 1792,) states, that the feme made
her acknowledgment of the conveyance of
the land contained in the indenture, thereto
annexed, freely and voluntarily, and that
she was willing the same should be record-
ed, without stating that the feme declared
that she had willingly signed and sealed
the deed, and without stating that it was
shewn and explained to her by the com'rs:
Held, that if feme had in fact signed the
deed, such certificate of privy examination
is substantially a compliance with the requi-
sitions of the statute, and binding on the
feme. Tod v. Baylor, 4 Leigh, 498.

(k) (1) The fact should be as here set
forth; it is a joint authority, and therefore
the justices should be together, otherwise,
their proceedings will be altogether void;
and this remark applies to § 7, No. 7. See
3 Bac. Abr. (E) 5, 797; 8 East, 327, note (a);
Ridgely v. Howard et al. 3 Har. & M'Hen.
321; and Moore v. Moore's ex'rs, 1 Cox's N.
J. Rep. 147-8, Kinsey, C. J.; post. note (n).
(2) See Jourdan v. Jourdan, 9 Serg. &

Act of February 24, 1819-January 1, 1820. R. C. ch. 99.

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,(3) sealed and delivered the same, and that she wished not to retract it. Given under our hands and seals, this day of

A. B. [L. s.] C. D. [L. S.]

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(1) 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 proved, as to the husband, and delivered to the clerk to be recorded, pursuant 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(4) woman : Provided however, That no covenant or warranty contained in such deed, hereafter executed, shall, in any manner, operate upon any feme covert, or her heirs, further than to convey effectually from such feme covert and her heirs, her right of dower,(m) or other interest in real estate, which she may have at the date 11 of such deed.(n) From 1785, c. 62, 12 Stat. Larg.155; Dec.20, 1814, c.28.*

Raw. 268; Jones v. Moffet et ux. 5 Serg. & Raw. 523; 2 Inst. 515 (15), Modus Lerandi Fines, and note difference between separate and privy and apart; and see Martin v. Dwelly et al. 6 Wend. 1 (in err.); Butler et al. v. Buckingham, 5 Conn. R. 492; Jack son v. Stevens, 16 Johns. 114; Martin v. Mitchell, 2 Jac. & Walk. 424.

(1) It seems that until the privy examination, acknowledgment and declaration, are entered of record, when taken in court, or the deed with the certificate of the justices annexed, when such examination, &c. are made by justices, is delivered to the clerk to be recorded, no estate passes from the feme covert. It is not the fact of privy examination only, but the recording of the fact which makes the deed effectual to pass the interests of the feme. See Elliotte et al. v. Peirsol et al. 1 Peters's Rep. S. C. U. S. 338, 340, &c.; Jackson & Stevens, 16 Johns. Rep. 100.

(4) These provisions remove the disability of coverture. If the feme covert be an infant, she will not be bound by the conveyance, tho' acknowledged, &c. by her agreeably to this act. See Sanford v. M'Lean, 3 Paige, 117; Thomas v. Gammel et ux. 6 Leigh, 9; Priest v. Cummings, 16 Wend. 617.

(m) A wife has a title of dower, a widow a right of dower, before it is set out by metes and bounds, and after it is thus set out, she has an estate in dower. Maxims in Convey. § 73, § 222, ed. 1820. Which estate she may dispose of. See Jackson v. Hickson, 17 Johns. R. 123; Jackson v. Aspell, 20 Johns. R. 411; Sutliff v. Forgey, 1 Cowen, 89; Tompkins v. Fouda, 4 Paige,

448.

(n) This proviso was introduced Dec. 20,

داوة

1814. For the law as understood prior to the introduction of this proviso, see Nelson v. Harwood, 3 Call, 394; 3 Munf. 325. And on this subject, see Nicholson's lessee v. Hemsley, 3 Har. & M'Hen. 409; Jackson v. Gilchrist, 15 Johns. R. 89; Whitbeck v. Cook et ux. Ibid. 483, 545; Jackson v. Vanderheyden, 17 Johns. R. 167.

*

By the acts of Sept. 1674, 2 Stat. Larg. 317; Oct. 1705, 3 Stat. Larg. 319; Oct. 1710, 3 Stat. Larg. 517, the privy examination and acknowledgment of femes covert to deeds, could only be taken of the femes personally, by the general or county court, where the deed was recorded. The act of Aug. 1734, c. 6, § Stat. Larg. 40, pro-17 vided, that a commission might be issued by the clerk of the general or of any county court, to two or more commissioners, being justices of the county rohere the feme shall reside, to take and certify her privy examination and acknowledgment; and such commissions and privy examinations made before that act, were declared good; and the law was declared to be, that such privy examination and acknowledgment were not binding on the feme, unless recorded. The provisions of this act of 17 were substantially re-enacted by act of Oct. 1784, c. 1, 5 Stat. Larg. 410. The report of the committee of revisors of 1784, and after them the assembly of 1785, made a slight alteration; requiring that the commission should issue from the court where the deed ought to be recorded, and be executed by two justices of the peace of that county in which the feme dwelleth. Oct. 1785, c. 62, 12 Stat. Larg. 155. By act of Dec. 1796, c. 208, R. Č. magistrates of corporate towns were empowered to execute such commissions. Under the act of 1785, c. 62, the aldermen of

estate of 17418.66

Act of February 24, 1819-January 1, 1820. R. C. ch. 99.

9. § 16. If the wife be not in the United States of America, or in the territories thereof, or in the district of Columbia, a commission to examine her privily, and take her acknowledgment, shall be issued by the clerk of the court in which the deed ought to be recorded, and' be directed to any two judges or justices of any court of law, or to the mayor, or other chief magistrate of any city, town or corporation of the country in which the wife shall be: and, in the execution of such commission, the person or persons to whom it shall be directed, shall take and certify the privy examination, acknowledgment and declaration of such feme covert, in the same manner as justices of the peace within the United States are required to take and certify the same. Such certificate of the judges or justices, mayor or chief magistrate, authenticated in the form, and with the solemnity, by them used in other acts, and delivered, together with the commission aforesaid, to the clerk of the proper court, to be recorded, shall, with such commission, be accordingly recorded by him, together with the deed, to which they are annexed, and shall be as effectual in law as a certificate, in like case, by two justices of the peace within the United States, made pursuant to the provisions of this act.' Alt. from 1785, c. 62, 12 Stat. Larg. 155; R. C. c. 90. See Oct. 1776, c. 16, 11 Stat. Larg. 280.

10. § 17. No such deed as is mentioned in this act, shall hereafter be admitted to record in any other than the county and corporation courts of this commonwealth; except only, that any deed which, at any time before the first day of November, in the year eighteen hundred and fourteen, had been partially proved in the general court, in any of the former district courts of law, or in the superior court of law for any county, may be fully proved and admitted to record, in the court in which it may have been partially proved, if that were the general court or superior court of law; or, if it were a former district court, then in the superior court of law for the county in which such district court was holden; [on the acknowledgment of the party or parties, or the proof on oath of such acknowledgment of the party or parties, or the proof on oath of such acknowledgment by the legal number of witnesses thereto, made in the clerk's office of said courts. Act of Feb. 19, 1822, c. 23.] And being so fully proved and recorded, it shall be as effectual, to all intents and purposes [as if it were proved in court, (1822, c. 23,)] as if recorded in a county or corporation court. From Feb. 9-Mar. 1, 1814, c. 10.

11. 13. Every title bond, or other written contract, in relation to land, may be proved, certified or acknowledged, and recorded, in the same manner (o)

the city of Richmond, not being justices of the peace of Henrico, had no authority to take privy examinations and acknowledgments of femes covert, residing in Richmond, to conveyances of land. Currie et al. v. Page & al. 2 Leigh, 617. The act of Dec. 20, 1814, c. 28, provided that the privy examination and acknowledgment of a feme covert, may be taken, without any commission, before any two justices of the peace in any county or corporation within the United States, or the territories thereof, within which the feme covert may be. From Mr. Leigh's note.

(0) It is a general principle, that a power to convey lands, must possess the same requisites, and observe the same solemnities, as are necessary in a deed conveying lands. Clark et al. v. Graham, 6 Wheat. 579.

"The power of attorney being attested by only two witnesses, was not, for that

cause, defective. The law does not require any particular form, as to the attestation of a power of attorney to convey land; as, between the parties, such a power may be proved by any evidence, which would be sufficient to prove any other fact in a court of justice." Per Green, J. in Newman v. Chapman, 2 Rand. 105.

A person owning lands may by parol authorize another to make a contract for the sale thereof; and if a contract be made under such authority, the owner of the lands may be charged by virtue of the contract, provided there be a memorandum thereof in writing, signed by the person authorized to make it. Yerby v. Grigsby, 9 Leigh, 387.

The signing by the agent of his own name is sufficient. The statute does not make it indispensable that he should sign the name of the party to be charged therewith. S. C.

Act of February 24, 1819-January 1, 1820. R. C. ch. 99.

as deeds for the conveyance of land; and such proof, acknowledgment or certificate, and the delivery of such bond or contract to the clerk of the proper court, to be recorded, shall be taken and held as notice to all subsequent purchasers, of the existence of such bond or contract. Rev. 1819.

12. § 14. Hereafter, every partition of any tract of land or lot, and every assignment of dower in any tract of land or lot, made under any order or decree of any court, and every judgment or decree, by which the title to any tract of land or lot, shall be recovered, shall be duly recorded in the court of the county or corporation in which such tract of land or lot, or part thereof, shall lie, and until so recorded, such partition or assignment, judgment or decree, shall not be received in evidence in support of any right claimed by virtue thereof. Feb. 9—Mar. 1, 1814, c. 10; -Am. Rev. 1819.

13. § 18. The clerks of the several courts aforesaid shall record all writings acknowledged or proved, or certified to have been acknowledged or proved, in manner before prescribed, all privy examinations and acknowledgments of married women, howsoever taken or made according to this act, and all endorsements on such writings, and all plats, schedules and other papers, thereto annexed, by entering them, word for word, in well bound books, to be carefully preserved, and shall afterwards re-deliver them to the parties entitled to them: Provided however, That when the grantee or other person bound to pay the fee for recording any deed, resides out of the state, the clerk shall not be bound to receive such deed to be recorded, or to receive any proof or acknowledgment thereof, until the payment of such fee shall be secured to him. 1792, c. 90; 1796, c. 201, R. C.

14. § 19. In every case, where a commission for a privy examination of a feme covert hath heretofore duly issued, from the office of the general court, or from the office of any former district court, or from the office of any superior court of law within this commonwealth, and shall have been, or shall be, returned duly executed, it shall be lawful to record such commission, and the privy examination certified in pursuance thereof, in the county court, or other court, in which, according to this act, it would be proper to record the deed upon which such commission issued. And such commission and privy examination shall have the same effect in law, as if the commission had been issued from the court in which the deed may be recorded. Dec. 20, 1814, c. 28.

16. 10. Any witness, who, in proving the acknowledgment of any deed recorded in the manner herein prescribed, shall wilfully and corruptly foreswear himself, shall be deemed guilty of perjury, and shall be subject, on conviction thereof, to the same punishment, as if such perjury had been committed in open court. Feb. 9-Mar. 1, 1814, c. 10.

16. 8. The several clerks aforesaid shall, on the first day of every term of their respective courts, return to the court, a correct and complete list of all deeds, by them admitted to record in manner aforesaid, since the term last preceding, of their said courts, specifying therein the proof or acknowledgment of such deeds before them, as the case may be, and also particularly reciting the truth of the case, in relation to any deed which may have been admitted to record upon the certificates of magistrates as aforesaid; and setting forth therein, a description of each deed, by the names of the parties thereto, and the kind of property therein mentioned; which list having been inspected by the court, shall be inserted in the minutes of the proceedings of the day, and read therewith in open court; and the said clerks shall, moreover, cause a fair copy of such list of deeds, to be set up early in the morning of the day in which such return is made, at the principal door of their respective courthouses. Ibid.

17. § 9. Any clerk failing to make the return aforesaid, or to advertise a copy thereof, in the manner herein prescribed, shall forfeit and pay for every

Act of February 24, 1819-January 1, 1820. R. C. ch. 99.

such neglect of duty, the sum of one hundred dollars, recoverable with costs, on action or information, in the superior court of law for the county in which such clerk has his office, one moiety to the informer, or the person suing for the same, and the other to the commonwealth, for the benefit of the literary fund. lbid.

18. 11. Every deed respecting the title of personal chattels, hereafter executed, which by law ought to be recorded, (1) shall be recorded in the court of that county" or corporation," in which such property shall remain :(2) and, if afterwards, the person claiming title under such deed, shall permit any other person in whose possession such property may be, to remove with the same, or any part thereof, out of the county or corporation in which such deed shall be recorded, and shall not within twelve months after such removal, cause the deed aforesaid to be certified to the court of that county or corporation, into which such other person shall so have removed, and to be delivered to the clerk, to be there recorded, such deed, for so long as it shall not be recorded in such last mentioned county or corporation court, and, for so much of the property aforesaid as shall have been so removed, shall be void in law, as to all purchasers thereof, for valuable consideration, without notice, and as to all creditors.(5) Alt. from ibid. at Rev. 1819.

19. 12. Every conveyance, covenant, agreement and other deed in this act mentioned, except deeds of trust and mortgages,) which shall be acknowledged, proved or certified according to law, and delivered to the clerk of the proper court, to be recorded, within (3) eight months(4) after the sealing and delivery thereof, (p) shall take effect and be valid, as to all persons, from the time of such sealing and delivery; but all deeds of trusts and mortgages, whensoever they shall be delivered to the clerk to be recorded, and all other conveyances, covenants, agreements and deeds, which shall not be acknowledged, proved or certified, and delivered to the clerk of the proper court, to be recorded, within eight months after the sealing and delivery thereof, shall take effect, and be valid as to all subsequent purchasers for valuable consideration, without notice, and as to all creditors, from the time when such deed of trust or mortgage, or such other conveyance, covenant, agreement or deed, shall have been so acknowledged, proved or certified, and delivered to the

(1) See ante, note (d) and post. tit. SLAVES, &c. No. 37. A bill of sale is not necessary to pass the title of personal property, and therefore need not be recorded. See Girins v. Manns, 6 Munf. 191, and Carr, J. in Ben et al. v. Peete, 2 Rand. 543.

(2) See Claiborne v. Hill, 1 Wash. 177, 3 H. & M. 235.

A mortgage of slaves is recorded in the county of A., the slaves being, at the time of the execution and recording of the deed, in the county of B., and after the recording of the deed in A., the slaves are removed to A., but the deed is not recorded anew there, after such removal; and then the mortgagor mortgages the same slaves to another person, and this mortgage is recorded in A., where the slaves are at the time of the execution and recording thereof: Held, on the construction of this statute, the first mortgage was not duly recorded, and so is void against the second mortgagee. Lane v. Mason, 5 Leigh, 520.

(5) See Hughes v. Pledge et al. 1 Leigh, 443.

(3) See Bigelow v. Wilson, 1 Pick. R. 435. (4) 2 Inst. 674.

(P) In general, a deed is to be taken, as having been executed on the day it bears date, unless it appear to have been executed on some other day. 2 Inst. [674]; Goddard's case, 2 Co. 4; Stone v. Bale, 3 Lev. 348.

Where a deed has no date, or an impossible date, as the 30th February, and in the deed reference is made to the date, that word must be construed delivery, but if it has a sensible date, the word date occurring in other parts of the deed, means the day of the date, and not of the delivery. Styles v. Wardle, 4 Barn. & Cress. 908.

And if the deed be executed without witnesses, the acknowledgment, in court, or in the office, has relation to the date of the deed, and is not a re-execution thereof. See Moore v. The Auditor, 3 H. & M. 232, and the remarks of Ch. Carr, in Rootes v. Holliday et al. 6 Munf. 258. See a qualification of this rule in Ben et al. v. Peete, Rand. 539, 547.

But a deed executed by a feme covert, is