
    Lake et al. v. Gray et al.
    
    1. Conveyance acknowedsment. A| conveyance is valid and binding between tlie parties, though, it be neither acknowledged or recorded.
    2.-married woman. And this rule applies to an acknowledgment by a married woman to a deed releasing her dower or conveying the estate.
    
      
      Appeal from Clinton District Count.
    
    Wednesday, January 25.
    Action in equity to correct a mistake in the description of certain real estate conveyed by the defendants to plaintiffs. The defendant, Eunice N: Gray, demurred to the petition, and the same was overruled. The said defendant appeals.
    
      D. Gray for the appellants:
    I.Joseph Willis has never acknowledged the execution of the deed in this ease, and the deed is therefore void.
    
    1. “No instrument affecting real estate shall be deemed lawfully recorded unless it has been previously acknowledged, or proved, in the manner herein prescribed.” Code, p. 391, §§ 2220, 2221.
    2. This omission to acknowledge the deed affects the rights of the grantor; for 'if the deed be lost, the deed, and the grantor’s covenants therein, could not be proved either by the record or by parol prooí. Code, p. 393, §§ 2235, 2236.
    3. The registry of this deed was notice to the plaintiffs of its want of acknowledgment, as well as thei/r grantor’s covenants therein; especially as they do not expressly demy notice. 1 Johns. Oh. 299, 301, 302; 12 Iowa, 14; 15 id. 515; 3 P. Wms. 244; 1 Yt. 179; 5 Iowa, 95, 287, 292.
    4. This is a deed “ inter partes,” signed by the grantor and grantee, with covenants by both parties, “ running with the land.” Code, p. 390, §§ 2209, 2213. 4 Kent, 47; 3 id. 491, note b ; Townsend v. Corning, 23 Wend. 443.
    5. “If a deed be recorded without having been duly aclmowledged, it is of no effect.” 5 Shep. 418; Blood v. Blood, 23 Pick. 80; 15 Yt. 344; Rich v. Budling, 2 Ired. 240; 13 Ohio, 260; 1 U. S. D. pp. 530, 531, §§ 249, 263; 5 Iowa, 95.
    
      6. “ The recording act does not restrain its operation to specialties, but embraces all contracts concerning lands, and is equally applicable to legal and equitable estates.” Balls, v. McCarty, 10 Watts, 13; Brotherton v. Imingston,
    
    
      3 Watts & Serg. 334.
    7. This court have decided that the right of dower does not pass without the deed has been duly acknowledged. Westfall v. Lee el al., 7 Iowa, 12; Corrill v. Limn, 2 id. 556.
    8. Without acknowledgment, Willis has never shown his assent to his covenants in the deed. “ Something is still left to be done.” Hodge v. Dram, 12 Pick. 141; Chess v. Chess, 1 Penn. 32; Cla/rke v. Gifford, 10 Wend. 311; Wade v. Ca/rpenter, 4 Iowa, 361.
    9. The recording this deed by Willis, without acknowledgment, “ is a fraud upon the grantor. It is an intent, on his part, to avail himself of all that is in his favor in the deed, and to avoid all that is in the grantor’s favor.” McKee v. Hicks, 2 Dev. (N. C.) 379; Atkins v. Kimnan, 20 Wend. 241; Lewis v. Payne, 8 Cow. 71; 23 Peck, 80; Townsend v. Corning, 23 Wend. 443; Cary v. The Cm., etc., B. B. Co., 5 Iowa, 357; Mor. 463.
    II. This deed is also void for want of delivery.
    
    1. “ A deed must be perfect in all respects before it can be deemed to be delivered.” McKee v. Hicks, 2 Dev. 379;
    4 Iowa, 361; 1 Johns. Oh.294; Townsends. Corning, 23 Wend. 443; Atkins v. Kimnan, 20 id. 241; Foley v. Howard, June term, 1859.
    2. Where a deed “ has not been acknowledged,” there can be no “presumption ” of delivery. Klsey v. Metcalf, 1 Denio, 323; 16 Yt. 563; 4 Iowa, 361; Foley v. Howard, June term, 1859.
    3. The acknowledgment of the grantor “ goes for nothing, unless the other party acknowledge also.” Townsend v. Coming, 23 Wend. 443.
    4. “The execution of the instrument is not complete without acknowledgment, and it is not the grantor’s deed.” Townsend v. Corning, 23 Wend. 443,444.
    5. By this deed one party conveys, and the other agrees “ that said party of the second part is not to occupy or use said land ” “ for any other purpose than as a residence for himself or family, and as a garden,” “ each of these covenants or agreements being the consideration for the other,” and binding on the plaintiffs. 5 Iowa, 287, 292; 23 Wend. 443.
    6. Neither Willis nor his grantees (the plaintiffs) can set up this deed as binding against the grantor, as this mutuality of agreement lacks an acknowledgment by Willis. Townsend v. Corning, 23 Wend. 443,444; 12 Johns. 418; 1 Johns. Ch. 114; 6 Cow. 617; 10 Wend. 310; Atkins v. Kimnan, 20 id. 241; Dussa/ume et al. v. Burnett et al., 5 Iowa, 95.
    7. Here has been a lapse of nearly ten years since the date of this deed, and it is now too late for the plaintiffs “to speculate upon the market, and abandon or set up their contract, as their own interest may dictate.” 23 Wend. 445; 1 T. E. 86; Dussamne et al. v. Burnett et al., 5 Iowa, 95.
    
      Wm. E. Leffmgwell c& Walter I. Hayes for the appellees.
   Cole, Ch. J.

The description in the deed as made and alleged to be a mistake is as follows: Commencing at a stake on the west line of section eighteen, thence north, on west line of said section, six chains,” etc., and thence, by several courses and distances, “ to the place of beginning.” The petition avers that the true description intended to be inserted in the deed was as follows: “ Commencing at a stake on the west line of section eighteen, township eighty-one north, of range six east, eighteen and seventy-three hundredths chains south of the northwest corner of said section, thence” following the description as in the deed. The deed as made contained certain agreements on .the part of the grantee, but it was signed and acknowledged only by the grantor, and was recorded.

It is first claimed by appellant that since the grantee did not acknowledge the deed, it is void and was not lawfully recorded. This is not so. A deed is valid and binding between the parties to it, though it be neither acknowledged or recorded. Brinton v. Seevers, 12 Iowa, 392; Haynes, Hutt & Co. v. Seachrest, 13 id. 455; McHenry v. Day, id. 445.

Nor is an acknowledgment of a deed by a married woman, releasing her dower or conveying her real estate, necessary to its validity under our statutes.. Sims v. Hervey et ux., 19 Iowa, 272. Whether there was a delivery of the deed cannot be raised by the demurrer in this case. That question is one of fact, to be determined by the proof, in case such issue is made. Nor does the fact of possession under the deed, or the absence of it, affect the right of plaintiff to have the mistake corrected. Because the deed is void for uncertainty of description, instead of operating to defeat the plaintiff’s claim to have the mistake corrected, affords the greater occasion for it; the demurrer admits the mistake as averred.

The judgment sustaining the demurrer, so far as it respects the mistake, is sustained and affirmed, and the cause is remanded with instructions to permit defendant, Eunice N. G-ray, to answer to so much of the plaintiff’s claim and petition as respects the rights of the parties under the deed as corrected, if she shall be so advised. The appellants will pay all the costs of this appeal.

Modified and affirmed.  