
    *Bryan v. Stump &c.
    October Term, 1851,
    Richmond.
    [56 Am. Dec. 139.]
    (Absent Cábele, P.)
    i. Joint Owners of Land — Deeds of Partition — Validity of — Case at Bar. — A brother and sister, both of whom are married, own a tract of land jointly. In 1803 the brother and wife and the sister and her husband unite in a deed of partition of the land, and from thence to the present time the land is held in severalty by the parties respectively and those claiming- under them. The partition is valid and binding on the parties, though no certificate of the privy examination of the wives is annexed to the deed.
    2. Deeds of Trust — Release under Power of Attorney-Validity of — Case at Bar. — A trustee in a deed, the trusts of which have been satisfied, executes a power of attorney to a third person with authority to release the deed. The attorney executes a deed which commences in the name of the trustee by the attorney; but it is signed in the name of the attorney for the trustee; and it releases the land not to the grantor in the trust deed, but to a purchaser under him. Held: The deed of trust is duly and regularly released.
    3. Femes Covert — Privy Examination — Validity—Case at Bar. — QutEBE: If the certificate of the privy examination of a feme covert, made under the act of 1792, which purports in the body of the certificate to be under the sale of the j ustices, but in fact no seals or scrolls are affixed to their names, is valid so as to bar the feme.
    
    4. Deeds of Trust — Cloud on Title — Duty of Trustee —Case at Bar. — whether or not such certificate be valid, it is at least so doubtful as to cast a cloud upon the title; and the husband being dead, and the interest of the feme in the land having been the fee, and her title not being barred by lapse of time, a sale of the land under a deed of trust should not be made until the cloud is removed, though neither the feme during her life nor her heirs since has set up any claim to the land.
    In September 1843 Thomas Bryan filed his bill in the Circuit court of Hampshire county, to enjoin the sale of a tract of laud under a deed of trust executed by himself to Isaac Baker, to secure-a sum of money which he owed to Jacob Stump for the purchase money x'of the land. The grounds of the injunction as they appear upon the pleadings and proofs are as follows:
    Sometime previous to September 1802 Michael Cresap was the owner of a tract of two hundred and fifty acres of land in the county of Hampshire, which on his death descended to his two children Thomas Cresap and Abigail who married James Cresap. By deed of partition bearing date the 23d of September 1802, made between Thomas Cresap and Mary his wife and James Cresap and Abigail his wife, this tract of land was divided between them by metes and bounds; but there was no privy examination of either of the femes covert. The parties however took possession of the part of the land assigned to them, and held it without molestation. On the 27th of April 1814, James Cresap and Abigail his wife conveyed to James M. Cresap with special warranty against themselves and all claiming under them, the laud assigned and conveyed to them by the deed of September 1802. It appears that James Cresap and his wife lived in the state of Maryland, and a commission issued to three persons by name who were described as justices of the peace for the county of Alleghany, in the state of Maryland, authorising any two of them to take the privy examination of Abigail Cresap, and certify it under their seals to the County court of Hampshire. The certificate of the two who acted under this commission, stated the fact of the privy examination properly; and it purported to be under their hands and seals ; but no seals or scrolls were affixed to their names; and they did not, nor were they required by the commission to certify that they were justices.
    On the death of James M. Cresap this land descended to his son Buther M. Cresap, and he and his mother Mary Cresap, united in a deed bearing date on the 29th of November 1834, by which they conveyed it to James Prather, in trust to secure a debt of 1100 dollars which they owed to John J. Jacob. They afterwards *in 183S sold the land to Jacob Stump, and conveyed it to him bjr deed bearing date the 4th of April' 1843: Having previously, as early as 1835, paid off the debt to Jacob by the assignment to him of one of Stump’s bonds.
    In May 1842 an agreement was entered into between Stump and Thomas Bryan, by which Stump agreed to sell to Bryan this land for 7000 dollars; of which 3000 dollars was to be paid on the 1st of the next April, and the balance in two equal annual payments; and upon the receipt of the first payment Stump was to convey the land clear of all incumbrances; and Bryan was to execute his bonds for the deferred payments, and a deed of trust upon the land to secure them. Bryan paid a part of the first payment, and executed his bond for 1750 dollars payable on the 1st of July 1843, and the other two bonds as provided for in the agreement. And on the 6th of April 1843 Stump and wife by a deed which traced the title from the deed of September 1802, conveyed the land to Bryan; and they covenanted that they had an indefeasible estate in fee simple in the premises, and good right to convey, and they conveyed with general warranty. And on the same day Bryan conveyed the land to Isaac Baker in trust to secure the balance of the purchase money, with power to sell upon the failure to pay any one of the bonds.
    In July 1843 James Prather, then residing in Illinois, the trustee in the deed to secure the debt to Jacob, executed a power of attorney to William Donaldson of Hampshire, by which, after reciting the conveyance to himself, and the several subsequent conveyances, he authorized Donaldson to execute for him and in his name, a deed of release to the person legally entitled to receive the same. And accordingly Don aid-son, the 19th of July 1843, executed a deed which commenced in the name of James Prather, by William Donaldson his attorney in fact; but was signed William
    Donaldson, ^attorney in fact for James Prather; and the seal was attached to his name. He released and conveyed the land to the trustee Baker.
    Bryan having failed to pay the bond for 1750 dollars, which fell due the 1st of July 1843, the trustee advertised the land for sale; and Bryan applied for and obtained an injunction, relying upon the want of the certificate of the privy examination of the femes covert who executed the deed of partition in 1802; the insufficiencj' of the certificate accompanying the deed of 1814; and that the deed of trust to Prather was still outstanding, the conveyance by Donaldson not being as he contended, valid to release it.
    The defendants answered the bill. It appeared from the proofs that James Cresap lived until about 1836, and he was survived by his wife Abigail, who lived until 1843: And that they and those claiming under them, had held quiet and undisputed possession of the land from 1802 down to the hearing of the cause. It further appeared that their children were the heirs of both of them, and that they derived from their father an estate of more than three times the value of the land sold and conveyed by Stump to Bryan.
    In April 1844 the Court dissolved the injunction; and the plaintiff applied for and obtained an appeal to this Court.
    Robinson, for the appellant,
    relied,
    1st. On the defect in the certificate of the privy examination of Mrs. Abigail Cresap, attached to the . deed of 27th April 1814, which he insisted should have been under the seals of the justices. Por which he referred to the act. Old Rev. Code, edi. of 1814, p. 221; Tod v. Baylor, 4 Leigh 498; Hairston v. Randolph, 12 Leigh 445.
    2d. He insisted that the warranty of James Cresap was not such a security as a Court of equity would ^compel a purchaser to take as a security for a clearly defective title. For which he referred to Keytons v. Brawford, 5 Leigh 39.
    3d. That at least the case came within the principle of the class of cases which reprobates a sale of lands under a trust deed whilst there is a cloud upon the title. And he referred to Miller v. Argyle, 5 Leigh 460.
    4th. That the time which had elapsed since the conveyance in 1814, was not a bar to an action by the heirs of Abigail Cresap to recover the land, either on the ground of laches or of the statute of limitations. That the purchasers were entitled to possession under the conveyance from James Cresap until his death in 1836; and' only seven years had passed after his death before this bill was filed. And he referred to Hairston v. Randolph, 12 Heigh 445.
    Patton, for. the appellee.
    Bryan accepted the conveyance from Stump with full knowledge of all the defects in the title, as a compliance with Stump’s covenant. And he was so well satisfied with the title that he conveyed to the trustee with general warranty, and then comes to complain of these irregularities without an intimation of Stump’s insolvency, or of an apprehension that he will be disturbed in his possession of the land. The irregularity of which he complains is moreover merely technical, and the provision of the statute requiring the justices to certify under their seals may well be considered as merely directory. Bank of the U. S. v. Dandridge, 12 Wheat. R. 6.
    But if this formal defect exists, will a Court of equity enjoin the payment of the purchase money under the circumstances of this case. Clearly it will not be done in England where there is a deed with general warranty, unless, possibly, the grantor be insolvent. Here the grantor is not insolvent, no suit has been brought or is ^threatened; and the vendee has taken the conveyance with a full knowledge of the defects in the title. If a Court of equity should interfere in such a case, it would aid in the perpetration of a fraud by the vendee in taking the possession and the title, and then upon the pre-tence of these defects, of which he was before informed, refusing to pay the purchase money. 2 Bomax Dig. 282, and the cases there cited.
    
      
      Coparcener;; — Deeds of Partition. — Deeds of partition between parceners are not absolutely necessary. They mark and establish the dividing' line between them, and will, from the time of establishing the lien, be seized in severalty. Jennings v. Shacklett, 30 Gratt. 776, citing Coles v. wooding, 2 P. & H. 189; Lomax Dig. 134; 2 Min. Inst. (2d Ed.) 707; Jones v Carter, 4 H. & M. 184; Bryan, v. Stump, 8 Gratt. 241; Parrill v. McKinley, 9 Gratt. 1. See also, citing the principal case, Brooks v. Hubble, 2 Va. Dec. 532, 27 S. E. Rep. 585.
    
    
      
      Deeds of Trust — Release under Power of Attorney— Validity of. — The principal case is distinguished in Stinchcomb v. Marsh, 15 Gratt. 210.
    
    
      
      Same — Sale under — Cloud on Title — Duty of Trustee. —On this subject, see the principal case cited in Bank of Washington v. Hupp, 10 Gratt. 53; foot-note to Faulkner v. Davis. 18 Gratt. 651; foot-note to Shurtz v. Johnson, 28 Gratt. 657; Muller v. Stone, 84 Va. 887, 6 S. E. Rep. 223; Morriss v. Ins. Co., 90 Va. 374, 18 S. E. Rep. 843; Spencer v. Lee, 19 W. Va. 195; Livey v. Winton, 30 W. Va. 561, 4 S. E. Rep. 456; Dunlap v. Hedges, 35 W. Va. 296, 13 S. E. Rep. 659. See generally, monographic note on “Deeds of Trust."
    
   MONCURE, J-,

delivered the opinion of the Court.

The Court is of opinion, that the partition made between Thomas Cresap and Mary his wife, and James Cresap and Abigail his wife, on the 23d day of September 1802, as appears by their indenture of that date, followed as it has been ever since, by the possession in severalty of the said parties, and those claiming under them, is a valid and binding partition, although no certificate of the privy examination and acknowledgment of the said Mary and Abigail is annexed to the said indenture.

The Court is also of opinion, that the deed of trust of the 29th of November 1834, was duly and regularly released by the deed of the 19th of July 1843.

The Court is also of opinion, that the certificate of the privy examination and acknowledgment of the said Abigail annexed to the indenture of the 27th day of April 1814, substantially and sufficiently conforms to-the requisitions of the statute of 1792, in regard to conveyances by husband and wife, except that the said statute requires the certificate of the justices to be returned under their hands and seals, and no seals or scrolls appear to be affixed to the names 'of the justices in this case, though they state in their certificate that it is given under their hands and seals. 'The Court, without deciding whether the apparent omission of seals or scrolls as aforesaid rendered the title of the appellee Stump to the land sold and conveyed by him to the appellant ^defective, is yet of opinion that, as the said Abigail survived her husband, who did not die until 1836, and therefore when the injunction awarded in this case was dissolved she was not barred by the statute of limitations from asserting any claim to the said land, such omission of seals or scrolls raised a cloud over the title which, according to the case of Miller v. Argyle, 5 Leigh 460, and other cases therein referred to, ought to be removed before any sale is made under the deed of trust to secure the purchase money; and that the said injunction should have been retained until the said cloud was removed by a release of any claim of the heirs of said Abigail to said land, or by the decision of a Court of competent jurisdiction adversely to such claim in a suit to which the said heirs were parties, or by the lapse of fifteen years from the death of her said husband, which would bar the right of entry of her heirs, or by some other effective means. Therefore it is decreed and ordered, that the order of the Circuit court dissolving the said injunction be reversed and annulled with costs to the appellant against the appellee Stump; and that the cause be remanded to the said Circuit court to be further proceeded in according to the foregoing opinion.  