
    Martha Scanlan v. Louisa and Eliza Turner.
    Charleston,
    Feb. 1830.
    Where there has been positive testimony on both sides of a disputed question of fact, the Court will not interfere with the verdict, although, in the opinion of the presiding Judge it was decidedly against the weight of evidence.
    A magistrate cannot take the wife’s renunciation of dower upon a conveyance in which he is interested. And where the purchaser was a magistrate, a renunciation before him was held void, although the conveyance was taken to a stranger, in trust for the children of the purchaser, and the latter had no longer any title to the land in law, or in equity.
    A renunciation of dower must be perfect at the time when it was made; and where it was taken and certified by a magistrate who was disqualified by interest, suppletory evidence that it was made by the wife freeiy, and voluntarily, will not avail.
    Tried before Mr. Justice Gantt, at Coosawhatchie, Fall Term, 1829.
    This was a summons in dower. The defendants, who were infants, appeared by guardian, and pleaded a renunciation by the demandant, in the life time of her husband ; on which plea issue'was taken.
    The defendants gave in evidence a conveyance of the land, of which dower was claimed, from the husband to William B. Johnson, in trust for the defendants. This conveyance was executed'on the 21st March, 1820; and on it was indorsed a. renunciation of dower, bearing date the day after, which was subscribed by the demandant, and duly certified in the mode prescribed by the act of 1795, 2 Faust, 6, by David Turner, justice of the quorum.
    David Turner, was examined as a witness for the defendants, and testified, that in 1820, he was a justice of the quorum, and took the renunciation now produced. It was taken in the house of the husband, but the demandant was examined apart from him, and declared to witness, that she renounced her dower freely and voluntarily. On his cross-examination, the witness stated, that, to the best of his recollection, the demandant declared, before making the renunciation, that she was of full age ; but he would not undertake to speak with certainty as to that fact. The demandant received no consideration for the renunciation. She did not go before, or send for witness ; but he was requested by the husband, to wait upon her and take her renunciation. Witness purchased the land from the husband, and paid the purchase money, which amounted to $1200, to him ; but the witness always intended it for the benefit of the defendants, who are his children, and in negotiating for the purchase, he acted merely as the agent of Johnson, who had agreed to be their trustee, but who was absent at the time, when this land was offered for sale.
    On the part of the demandant, the family bible of her father was produced, and authenticated by the oaths of two witnesses, whose credit was not impeached; one of whom, a brother of the demandant, testified, that he had often heard his mother, who was also the mother of the demandant, refer to the entries in this bible, as exhibiting the correct ages of her children. From these entries it appeared, that the demandant was born on the 19th Dec. 1799.
    In reply, the defendants gave in evidence the depositions of a very respectable lady, who was examined by commission, and who testified that she was connected with, and had been intimate in, the family of demandant’s father; and that she knew that the demandant was born the day before a son of her own, who was born on the 21st February, 1797, as would appear by the family bible. This latter bible, however, was not produced.
    It was contended for the demandant, that her infancy at the date of the renunciation, was sufficiently proved; and that the reuunciatiou was, therefore, void by the express provisions of the act of 1795. But admitting her to have been of full age, a renunciation taken by the purchaser himself, although a justice of the quorum,, was utterly void, being a direct violation of the letter and spirit of the act, the plain object of which, was to protect the wife from any influence over her own free will.
    The presiding Judge instructed the jury, that the proof of infancy was so complete, that it was unnecessary to decide the other question. A mistake there was somewhere, but nothing was easier than to make a mistake.as to remote dates, where they rested upon treacherous memory. ‘ There could be no mistake as to the entries in the bible produced ; whilst nothing was more probable, than that the witness, examined by commission, bad been mistaken, in consequence of not having the bible, to which she referred, before her. She might have confounded one date with another, or the birth of an elder with a younger gon. Be that, however, as it might, under the evidence before the Court, the demandant was clearly intitled to a verdict. ■
    The jury, however, found for the defendants ; and the de-mandant now moved to set aside the verdict, as contrary to law and the evidence.
    Treville, for the motion.
    Fuller, contra.
    
   Johnson, J.

delivered the opinion of the Court.

If the result of this motion depended entirely on the fact of the minority of the demandant, at the time she is supposed to have renounced her dower in the land, conveyed by her husband to Johnson, I should be disposed to think that a new trial ought not to be granted, notwithstanding that the evidence on her side of the question is very imposing. • The circumstances opposing it were, it appears, positively sworn to, and the conclusion following from them, equally conclusive against her ; constituting as I conceive one of those cases, of which the jury from their knowledge of the parties, and witnesses, were the !e-gitimate and most competent judges. And Í am the less in-dined to weigh this matter very nicely, as I have come to the concjusjon t¡jat a „ew trial must be granted, on the question of law which arises out of the case.

No one who will examine the act of 1795, which prescribes the mode in which a married woman may bar herself of her right of dower, in the lands of which her husband is seized, during their coverture, will feel any hesitation in coming to the conclusion, that the Legislature intended to guard that right with the most jealous care, and to protect her, as far as human- wisdom could, against that influence, which, from the nature of the relation existing between them, the husband must necessarily possess and exercise over the wife, and that too frequently without due regard to her feelings and wishes. To effectuate this object, they have provided a mode, the best, perhaps, of which the subject is susceptible, of ascertaining her wishes, free from this or any other improper influence. She is to be privately and separately examined by a Judge or justice of the quorum ; and it is only upon her own voluntary declaration, thus made, that she acts without other influence than her own free will, that her renunciation is rendered effectual to bar her dower.

In the interpretation of statutes, the rule is, that the intention of the Legislature is to be collected from the terms used : but the subject matter to which they relate, must be taken into consideration; and to aid us in the interpretation, we may look to the old Ia.w, inquire of the evil which existed, and consider of the remedy to be applied. For the same reasons, and by the same rule, we must judge of the execution of a power derived from a statute, and take care, that in the manner it is so executed, as that the intention of the law giver may be fulfilled. It is also a settled principle, that no one concerned in the administration of justice, whether judicially, or ministerially, shall be permitted to act in his own cause, unless by actual enactment, of which ho example that I now recollect exists: ,not that the power may not be sufficiently general, nor because the party may not act with the utmost fairness, and in accordance with the law; but because it is unwise, and unsafe, to confide in any one a power, in the execution of which, he is surrounded with temptations, which all experience shews mere humanity to be incapable of resisting. The influence of interest is all-controlling; and it is wise, therefore, that all who act under legal authority, should be divested of it. The principle is not one limited by rule, or restrained by exceptions; but, like the laws of nature, its application is universal, producing in its operation the utmost harmony and order.

If the husband were himself a judge, or justice of the quorum, would a renunciation of the wife’s dower taken and certified by him, bar her of dower 1 By the terms of the act, he is not expressly prohibited or excepted; but if he were permitted to act, the wife would be exposed to the very influence, against which the law more especially intended to guard her, the control of her husband. And yet it is only by the application ot the foregoing rule that she is protected against it. He will not be permitted to act, because it would be acting officially in a matter, in which he is interested, If the purchaser be a judge, or justice of the quorum, is he competent to take the wife’s renunciation of dower in lands conveyed by the husbabd ? His interest is not less than that of the husband, If for the want of it the husband is obliged to sell at a price, diminished by reason of this outstanding right; it is equally true, that if the renunciation prove ineffectual, the purchaser loses it, with a precarious right of indemnity from the estate of the husband. In any view he has an interest, which renders him unfit to be trusted, for he is exposed to temptations which mankind are not wont to resist. As more directly applicable to the facts of this case, let it be kept in mind, that the renunciation of dower, to operate effectually, must be perfect at the time when it is made; and that suppletory evidence, such as was given in this case, cannot give effect to it, if it was before inoperative.

There is another principle which is equally decisive of this' question. It is a general rule, that the acts of a party cannot be given in evidence for him, as it would enable him to manufacture evidence to suit the occasion. Now it is apparent that the certificate of the judge, or justice of the quorum, an act of his own, is the only evidence of the voluntary assent of the wife' to renounce her dower. Nothing can supply, and nothing su~ persede it; and to allow the purchaser to take the renunciation, would act as a direct violation of the rule.

It is true that the conveyance, in this case, was to Johnson, and that the renunciation of the demandant’s dower, is certified by David Turner: but it is not questioned that the defendants are his children, and that the deed to Johnson, was a trust for them; that the contract for the purchase was made, and the consideration paid by Turner out of his own funds; and that it was intended as a provision for his children, who were then and still are minors. And although we may attempt legal distinctions and refinements, it is apparent that the renunciation of dower was necessary to give effect to his own contract; and that he must have felt the same interest, and acted under the same influence, as if the deed had been made to himself.

But if the question were even more doubtful, I should come to the same conclusion. This, as well as all other powers derived from legal authority, ought to be exercised in a manner, and by persons, Wholly unexceptionable. And the very circumstance, that he who purchased, took the renunciation of dower, and procured it to be conveyed to another, in trust for objects, perhaps the most dear to him, might of itself give rise to a suspicion, that this circuitous mode of conveyance was resorted to, with a view to evade the provisions of the act, and to substitute in its stead the act of the party himself. This may not be, and, in charity I presume, is not, the fact; but. the probability of it furnishes a reason why the renunciation should not have effect.

Colcock, J. concurred.

Richardson, J. I concur upon the last ground.

Motion granted.  