
    Rainey vs. Gordon.
    1. The record of a privy examination of a feme covert was in the following words “The court proceeded to take the privy examination of the said Eliza W. Rai-ney, separate and apart from her husband, who says, she executed the same freely and voluntarily, without fear or constraint.” The court held this to be valid as a privy examination and acknowledgment of the execution of the deed.
    2. The 9th section of the act of 1839, making valid probates of deeds, where the clerk in his certificate on the deed or in his entry on the record, omits to give a description of the property conveyed, applies to deeds executed by femes covert.
    The heirs of William Rainey, deceased, conveyed to James Rainey and his wife, Eliza, a tract of land lying in the county of Giles. This deed was made by way of partition and assignment to her of her interest in the estate of her. father. After the execution of this deed, a deed was signed by said James and Eliza and delivered to Newland, in trust for the benefit of Jones, a creditor, which deed was intended to convey to said Newland the land aforesaid, for the benefit of said creditor. The records of the county court of Giles contain the following entry:
    “A deed of trust from James Rainey and wife, Eliza W. Ramey, to H. M. Newland, for the benefit of Ed. D. Jones, was produced in open court, and the execution thereof acknowledged by James Rainey and Ed. D. Jones, and thereupon the court proceeded to take the privy examination of said Eliza W. Rainey, separate and apart from her husband, who says she executed the same freely and voluntarily, and without fear or constraint.” Newland sold the land, and it was conveyed to Gordon.
    James Rainey died, and this bill was filed in the chancery court at Pulaski, on the 15th day of May, 1844, by Eliza W. Rainey, praying that the title of Gordon be declared void, and that the possession of the land be decreed to complainant, and for rents and profits.
    
      This case was tried by Chancellor Cahal on bill, answer, replication and proof, at the September term, 1845. He was of opinion that the deed of 1822 conveyed all the title of said Eliza to Newland, and was a valid conveyance. He, therefore, dismissed the bill, and complainant appealed.
    
      Wright, for complainant.
    I. There is no doubt of complainant’s title to the lands in dispute, unless she has legally conveyed the same away. 1000 acres, including the very land in controversy, were originally her own individual property, by deed from her father- and the 1265 acres, (embracing also this land,) were conveyed by the deed of Homer Rainey, E. D. Jones, and James Rainey, Jr., of the “13th November, 1820,” to complainant and her husband jointly. She having survived him, is entitled to the whole, save only so far as she has legally parted with her title. — Taul vs. Campbell, 7 Yer. Rep. 319; Miller vs. Miller, Meigs’ Rep. 484.
    II. The privy examination of complainant to the deed of trust to Newland is void and of no effect. It divested none of her estate; and consequently she is now entitled to the lands in dispute. At common law, the wife’s estate in her lands could only be passed by fine or common recovery in a court of record, and her private examination thereon. — 2 Comyn’s Dig. title, Baron and Feme, (G.) 214, 215, 217, 218, and 219; 4 Comyn’s Dig. title Fine, (B.) 309, note (s.) 318, 346, note (e,); 5 Cruise’s Dig. title Fine, 114, 175,176. Her contracts, and even her deeds, with a private examination were void totally. — 4 Comyn’s Dig. 345, note (e.) Hence the authority for this deed can only be found in our statutes. It is not a fine or common recovery. It is a private conveyance by deed, and, to be valid, must be sustained in every particular by the statute law of the land. — Acts 1715, (1 Scott; 16;) 1751, (1 Scott, 82;) 1813, (2 Scott, 146.) Tested by these statutes, it is void. — 2 Murph. Rep. 390; 2 Dev. Law Rep. 306; 1 Dev. & Batt. Rep. 34; do. 228; do. 582; 4 Dev. Law Rep. 514; 20 Johns. Rep. 301. These authorities will show, that the taking of the acknowledgment and privy examination of a feme covert, are, under our statutes, things of special and limited jurisdiction, and that, in order to be valid and bar the wife, the statutes must be literally and strictly pursued, and must appear to be so upon the face of the proceeding. — 2 Yer. Rep. 400, and authorities supra.
    1. The first objection to this deed, and which I consider fatal, is, that it does not appear to have been “personally acknowledged” by the wife in court. This is required by all of the acts 1715,1751 and 1813, and is indispensible as a safe guard thrown around the wife’s estate. The acknowledgement is one thing, and private examination another, quite separate and distinct. The acts themselves takes the distinction. There is sense and reason for it. Even the commissioners must take the acknowledgment after the private examination is had. The deed itself and the record show, on the contrary, that it was only acknowledged by James Rai-ney, Jr. Expressio unius esi exclusio alterius. — 2 Murph. Rep. 417 and 418, 7 Yerg. Rep. 320; 2 Hayw. Rep. 401, and authorities supra.
    2. It the deed had been acknowledged by Eliza W. Rai-ney as well as her husband, (such is not the fact,) her private examination should have preceded, and not succeeded the acknowledgment. So in all three of the acts upon the subject, “The wife being first privily examined,” &c. There is good sense in this requirement. The privy examination ought to be before she commits herself in public by an open acknowledgment, which it might be hard for her then to retract.
    3. Even the examination of Eliza W. Rainey here, does not appear to have been private. The record says: “and thereupon the court proceeded to take the privy examination,” &c. The county court is composed of 50 or 100 justices. Now, for us to say that the court or these justices took a private examination, is an absurdity in terms. How can it be done in court or by the court, composed of so many members, and be private? It must not only be separate and apart from the husband, but from the world, the multitude. The act says it shall be by “five members of the county court appointed by the said court for that purpose.” It shall be in the verge of the court, by one of its members specially appointed and entrusted for that purpose, but must be entirely private, and between the feme and the member. — 2 Dev. Law Rep. 310.
    4. Again: the record, for another reason, does not show that her examination was private. It simply is, that “the court proceeded to take the privy examination of said Eliza W. Rainey, separate and apart from her husband, who says, she executed the same freely, voluntarily, and without fear or constraint.” Now, the fact that the court proceeded to do so, does not prove that they actually did so. The record should show the fact, that she was examined in private, separate and apart from her husband. It may be that after the court proceeded or started to take her privy examination, the husband intervened, and was present when she acknowledged her own assent. The record does not negative this. The term “proceeded” as here used simply means to press from one subject to another, (i. e.) from the acknowledgment of the deed by the husband to the privy examination of the wife. It means to advance, begin, &c. But the fact that the court proceeded upon that subject, by no means proves that they actually accomplished it. — Webster’s Dictionary, 642; 7 Yerg. Rep. 320; 1 Dev. & Batt. Law Rep. 231-2-3; 4 do. 52.
    III. The statute of limitations can have no application here. Complainant was a feme covert from 1818 to December, 1840, when her husband died. She has 7 years from this event. — Meigs’ Rep. 484; 3 Hump. Rep. 267. Neither can there be any presumption or lapse of time rule against the complainant. — 3 Hump. Rep. 267. Nor is there any thing in the conduct of the wife, even if she received and used the money received for the land, that will bar her. — 1 Dev. Eq. Rep. 500.
    IV. If complainant’s title was not clearly deraigned, as it is, still, in as much as defendant claims and holds under the same title, he is estopped to deny her seizin. — 2 Dev. & Bat. Law Rep. 434; do. 157; 2 Dev. Law Rep. 177; 4 Dev. & Batt. Law Rep. 52.
    V. The privy examination and acknowledgment, such as it is, has no application to this deed, and may as well apply to any other. The subject matter of the conveyance is not mentioned, and the deed stands without any privy examination. — 1 Hump. Rep. 514. No statute could be constitutionally passed to aid this as to a feme covert, her deed being wholly void. — 2 Murp. Rep. 390. Act of 1839-40, will not be construed as applying to a feme covert. — 7 Johns. Rep. 509. It cannot divest an estate. If it did, in express terms, it would be void.
    Mr. Wright, in a supplemental brief,
    argued as follows:
    What influence is the case of Montgomery vs. Hobson (Meigs’ Rep. 437) to have upon the case of Rainey vs. Gordon? Thé privy examination is not given in the . report of the case. But when we turn to the record, we find that pri-. vy examination to differ in two important particulars from this: 1st. The record does clearly show that Mrs. Montgomery was privately examined separate and apart from her husband. That is affirmed as an existing fact in the record. But here, as we insist, no such fact is affirmed; but only that the court proceeded to take it, &c. 2ndly. The deed and the subjeci matter of conveyance are sufficiently identified and described in the case of Montgomery vs. Hobson. Here they are not. In that case the grantors, Hugh Montgomery and Euphemia, his wife, and the grantee, Moses Austin, and the land conveyed, to wit, “640 acres of land lying in the county of Davidson, and State of Tennessee,” are all described in the record. But here the subject matter of conveyance is totally omitted.
    This, according to well settled rules of decision in Tennessee, leaves the deed without any private examination at all. — 2 Yer. Rep. 520; 6 Yer. Rep. 261; 6 Pet. Rep. 283; 9 Yer. Rep. 37-44; 10 Yer. Rep. 237; 1 Hump. 522. That is, the deed is not identified as the one on which the privy examination took place. It would apply as well to any other deed in which James Rainey and wife were the bargainors and Henry M. Newland,for the benefit of Edward D. Jones was the grantee.
    
      The deed of a feme covert is absolutely void, until her privy examination is duly taken. No statute could be constitutionally passed to aid or cure a void and defective one. It would not be passing laws to make evidence or remedies for existing estates and rights, as in the case of an unregistered deed, &c., where the bargainor was sui juris. It would be divesting estates and taking the title from one man and conferring it upon another. The act of 1839-40, p. 48, does not apply to this case. It was not so intended. The sections from 1 to 5 evidently do not. They are all prospective and would hot per se apply to femes covert at all. Section 6 applies exclusively to them, but is entirely prospective, and has no application. Section 8 only applies to ordinary deeds, not those of femes covert. So of section 9. But even if the deed from Rainey and wife to Newland were an ordinary deed, the act does not apply, because there is nothing in the record to show the deed has ever been registered — it certainly has not been registered 20 years. The act, therefore, save only the 6th section, will not be construed as applying to the deeds of married women. It is a settled rule in the construction of a statute, not to construe it so as to destroy vested rights, &c. — 7 Johns. Rep. 493, et seq. But such a law, if made in express terms to apply retrospectively to the deeds of married women, I apprehend, would be unconstitutional and void. — 7 Johns. Rep. 497-500-502-3-5-6-8; 2 Cranch 252; 2 Murp. Rep. 290; Art. 1, sec. 10, Con. U. States and authorities in note (u) N. & C. Rev. 12; Art. 1, seo. 20, Con. Tennessee; 5 Hayw. Rep. 196; Art. 11, sec. 1 and 2, Con. Tennessee; 4 Dev. Law Rep. 1-12 et sequitur, 16.
    2. I admit that the facts in the case of Montgomery vs. Hobson did present one question now raised in this ease, namely, whether the feme covert, in order to be barred of her estate, in addition to her privy examination, ought not also to acknowledge the deed in open eourt. But it seems not to have been debated by counsel, or noticed by the court. If really so, the case does not decide that question, and it would now be an open one, as the authorities are, that where a point is not raised or decided in a case, though, by the facts, it might have been, the case is no authority on that point. 5 Yer. Rep. 10 and 11. But when I consider the very elaborate and able manner in which that case was discussed and decided, it seems almost next to impossible that that point could have escaped either the counsel or the court. But, on the other hand, the statutes of 1715, 1751 and 1813, do certainly require both the private examination and the personal acknowledgment in open court; and the most eminent Judges of North Carolina, Taylor, Ruffin & Gaston, approved the distinction, and required the record to show that the feme covert has not' only been privately examined, but, also in addition, that she has made a personal acknowledgment in open court. It is most respectfully, therefore, submitted to the court, whether there is not weight in the distinction, and whether upon this point, the others aside, Mrs. Rainey ought not to recover the land in dispute.
    
      N. S. Brown, for defendant.
    1. It is insisted by complainant, that her privy acknowledgment and execution of the deed of trust to Newland, is invalid, and therefore did not divest her of the lands therein conveyed, being the lands now in controversy. The language of the certificate of execution is, “Then was the within deed of trust from James Rainey and Eliza W. Rainey, his wife, to Henry M. Newland, for the benefit, &c., produced in court, and the execution thereof acknowledged by James Rainey and Edward D. Jones; and thereupon the court proceeded to take the privy examination of Eliza W. Rainey, separate and apart from her husband, who says she executed the same freely and voluntarily, without fear or constraint.”
    Now, it is alleged, that the above is not an execution of the deed by complainant, in conformity with the statute, so as to divest her title; because it does not appear that she acknowledged it before her privy examination was taken. In other words, that the statute requires an acknowledgment or probate on her part, as one act, and her privy examination thereupon as another and distinct.
    The act under which this proceeding was had, was that of 1813, ch. 76, sec. 1, 2 Scott’s R. 146, which provides, “that it shall be lawful to take the probate and acknowledgment of deeds made by husband and wife for the sale of land, before any court of record, and for such court to examine, apart from her husband, such feme covert, whether she executed the same'freely,” &c. This act points out no such nice and ceremonious distinction as that contended for. , The probate or acknowledgment is to be before the court, and that court may take the privy examination. In this case, the whole proceeding was before a court of record, and that court took the privy examination; and the record shows an acknowledgment by the husband, and an acknowledgment by her, and also her privy examination. Can it be said of this record, that it does not show an acknowledgment on her part? It says, “she admitted she executed the deed;” and this is certainly an acknowledgment — and it was made before the court before which, as a court, the whole was competent under this act. It is true her acknowledgment is blended with her privy examination; but, what of that? It might as well have been made then as at another time, before or afterwards, if made in person before the court; for it is not necessary that her acknowledgment should be made at the same time with that of her husband. His may be made one year and hers the next, and bind her. See on this point the case of Montgomery vs. Hobson, Meigs’ R. 437. In that case, the deed was acknowledged by the husband, in Virginia, in 1797, and in 1817 the privy examination of the wife was taken, in Campbell county, Tennessee, and in form like the present, and without any distinct acknowledgment or probate as to her, either previously or subsequently. And in that case, this court decided that the privy acknowledgment of Mrs. Montgomery passed her interest in the land. The cases are strictly analagous, as will appear by a comparison of the records. Upon the question of authority, then, we have this recent and elaborate case, settling the only point here involved.
    In that case, the court say, “that the estate, as far as the husband is concerned, passes from him by his execution of the deed before probate or acknowledgment, is unquestionably true” — See the case of Vance vs. McNairy, 3 Yerg. 171, and Turner vs. Shields, 10 Yerg. 1; see also Morris vs. Ford, 4 Dev. Law, and 2 Dev. Eq. 412. If this position be true in reference to the estate of the husband, by parity of reason, the estate of the feme covert passes also, upon her execution of the deed; and to ascertain that she does execute it, her privy examination alone is necessary; that places her with the signature of the deed, precisely on the same ground with her husband, after he has executed it, and before his probate or acknowledgment; for this last is only necessary, as to either, for purposes of registration, and not as to the validity of the deed between the parties themselves. For, if the execution of a deed by a husband, without probate or acknowledgment, will bind him and pass his land, by what construction shall the mere question of probate or acknowledgment receive a different application in the case of a feme covert? She, like him, has given her consent, and in the mode required by law, to wit, by her privy examination— they are both equally bound; but the deed cannot be registered, because it has not been proven or acknowledged — it wants precisely the same thing in both cases, and for the same purpose; and the ceremony of probate or acknowledgment is the same as to both, and may be done by the testimony of two witnesses, or by the ordinary acknowledgment of the parties.
    This view derives strength from the acts of 1715 and 1751, as far as they can influence the question, and it is from the construction of those acts by the courts of North Carolina, that the counsel for complainant gather their principal authorities. Both these acts require that the wife shall be first privily examined touching her consent, and then follows the probate or acknowledgement. The act of 1813 prescribes no order in which these acts shall be done, but the privy examination was to follow the probate or acknowledgment, and to be independent of it; and such has been the sense and the practice of the country under the act. — See act of 1839, sec. 9.
    But the act of 1813 is very different, in other provisions, from those of 1715 and 1751. It provides, “that the probate or acknowledgment and tbe privy examination shall be taken before any court of record,” &c.
    The act of 1715 provides, “that all such sales, &c., acknowledged before the chief justice, or in the court of the precinct where the land lieth, the wife having been first privately examined before the chief justice or one of the associate judges, or some member appointed by the court of the precinct,” &c. And by the act of 1751, “all conveyances in writing, and sealed by the husband and wife, for any lands, and by them personally acknowledged before the chief justice, or in the court of the county where the land lieth, the wife being first privily examined before the chief justice or some member of the county court appointed,” &c.
    Under neither of the acts of 1715 and 1751, could the privy examination be taken before a court, and under neither could the privy examination and the acknowledgment be taken before the same tribunal, except alone the chief justice. The consequence was, that the former was usually and of necessity taken before some member of the court appointed as upon commission — making the two acts necessarily distinct, because the authority under which they were done was divided. But, under the act of 1813, the whole might be done before one tribunal, the court, and was therefore one act.
    This view is sustained by the leading authority relied on for complainant — the case of Burgess vs. Wilson, 2 Dev. Law 306 — there a member of the court was appointed, under the acts of 1715 and 1751, to take the privy examination, thus necessarily making it a distinct act — and this member having no power to take an acknowledgment, one before him would be void; and not being made before the court, there was no acknowledgment at all. The court in that case say, “that the acts authorizing a judge of the superior court to take the acknowledgment of the husband and wife, and the privy examination of the latter, and this being to be done by one person, the whole is necessarily one act,” &c. By the act of 1813, the whole is to be done by one person, the court, and the acknowledgment and privy examination are necessarily one act; and this case may be deemed as falling within the proposition.
    What is an acknowledgment? It is an admission before a competent tribunal or officer, by a party executing the instrument, that he does execute it; and was not this done by complainant, when she says, “she executed this deed,” and says it before the court before whom the deed was produced bearing her signature? and before the same court, and at the same time, she says, “she executed it freely,” &c.
    By this sort of analysis of the record, we are conducted to a conclusion at once satisfactory, and consistent with the rights of all parties and the intention of the Legislature.
    The strong and emphatic language of this court, in the case of Montgomery vs. Hobson, furnishes a just answer to all the objections that are raised by complainant. The court say, “we are satisfied that if an acknowledgment by the husband be necessary, and it has been made under the provisions of any law authorizing it, it will, under the act of 1813, give power to any court of record in the State to take the privy examination of the wife. Unless we stick in the bark, this must be so. It is the substance of things, and not forms, that we are in pursuit of.” “These rights”— of a feme covert — “are" as well guarded by permitting the husband to acknowledge the deed in one court, and another to take the privy examination of the wife, as by requiring both transactions to be done in the same court.” See, also, the case of Lessee of Watson vs. Baily, 1 Binny 479, there referred to.
    This mode of conveyance by a feme covert is in lieu of fines and common recoveries, which in their native strictness amounted to nothing more than a confession of judgment by the husband and wife, the consent of the latter being ascertained by examinatiQn by the court; and the acts of 1715 and 1751, providing this new mode of conveyance, avow their obje’ct to be to simplify and facilitate the transfer of lands by femes covert — so also the act of 1813. And thus, this species of conveyancing has been gradually relaxing under every new enactment, and every new adjudication; in proportion to the growth of civilization and common sense. The husband is not now regarded as a land shark, who makes marriage only the medium of gratifying his own cupidity and plundering his wife of her estate. Nor is the wife now esteemed that feeble creature and quasi vassal of the husband, which marked her history in the early days of the common law. The partnership has assumed some degree of equality between its members.
    The great object aimed at by all these statutes, and by the system of fines and recoveries, was to protect the wife from imposition and fraud, and to obtain with certainty her free consent to the conveyance of her lands. This being attained the requisite of the law is fully satisfied.
    The prevailing practice of the country, for so long a period, might be appealed to upon a question of doubtful construction, in fixing a just interpretation to the act of 1813. The record in question is but an exemplification of the practice; and against the view here taken of it, there is not an adjudication to be found in Tennessee. On the contrary, besides the case of Montgomery vs. Hobson, which is deemed conclusive, the case of Lassiter and wife vs. Turner, 1 Yerg. 429, shows that the privy examination of the wife constitutes the only requisite for divesting her title.
   Reese, J.

delivered the opinion of the court.

The question presented by the record in this case relates to the validity of the privy examination of the complainant to a deed of conveyance made by her and her husband, on the 10th day of April, 1822. This privy examination took place and is recorded in the county court of Giles, on the 1st of June, 1822, and is in the words and figures following, to wit: “A deed of trust from James Rainey and Eliza W. Rainey, his wife, to Henry M. Newland, for the benefit of Edward D. Jones, was produced in court, and the execution thereof acknowledged by James Rainey and Edward D. Jones,* and thereupon the court proceeded to take the privy examination of the said Eliza W. Rainey, separate and apart from her husband, who says, she executed the same freely and voluntarily, and without fear or constraint.” By way of objection to the validity of this proceeding, it has been urged, that, although the privy examination, as such, may be good, yet there must be an acknowledgment as well as a privy examination. But the acknowledgment is necessarily involved in the privy examination; this is conceded in the case of a privy examination taken before a judge. Yet, in reason and on principle, there is no diiference in the character of the proceeding, as involving both privy examination and acknowledgment, whether it take place before a court in its corporate capacity or before an individual commissioner. The idea that a privy examination cannot take place before a court, and be its corporate act, is not well founded. It is not, and it need not be privy, in any legal or other sense, except as it is separate and apart from, and without the presence of the husband. Such, at all events, is the view taken of the proceeding by our statutes on the subject. This, therefore, is a good privy examination, and involves also a valid acknowledgment of the instrument by the feme covert. The case, moreover, comes within the principle of the decision of Montgomery vs. Hobson, and if there were any doubt about it, it would be controlled by that case.

It is further said, that the probate is not good for the purpose of registration, under the decisions of this court on that subject; for, although the discription by the parties to it, namely “a deed of trust from James Rainey and Eliza W. Rainey, his wife, to Henry M. Newland, for the benefit of Edward D. Jones,” more than ordinarily identifies the instrument, still it does not contain a further element of description and identification in a reference to the subject matter of the deed or property conveyed, indicated as necessary in the case of 9th Yerger, on the general subject of probate. But, the 9th section of the act of 1839, in express reference to probates which had then taken place, makes the omission by the clerk in his certificate upon the deed, or in his entry upon the record, to give a description of the property contained in the deed, altogether immaterial, and declares the probate and registration to be valid without it. This statute obviates the force of the decision referred to, and makes valid the probate. The power to do so, so far as regards the deed, of the wife, is, in argument, denied to the Legislature. I do not, as respects this branch of the question, comprehend the distinction, or perceive what difference the sex of the bar-gainor can make. As to the legal certainty of description or identification of the instrument by the record of probate, with a view to valid and effective registration, Rainey and his wife fall within the same category. The law, which is but a rule of evidence, is valid and effectual as to both.

Let the decree be affirmed.  