
    John B. Purcell vs. Nicholas Goshorn and Lorenia his WIFE.
    A feme covert, owner of the fee of land, does not pass her title by a deed executed by husband and wife, unless she joins her husband in the granting part of the deed.
    Though it was the intention of husband and wife to execute a deed conveying the fee, a Court of chancery will not, as against the wife, correct the mistake in the instrument of conveyance,, and compel the execution of a perfect deed.
    This is a Bill in Chancery reserved in Hamilton County.
    The bill states that Goshorn and wife, on the 30th day of April, 1823, conveyed to Bishop Fenwick his heirs and assigns a certain tract of land in Cincinnati, giving the boundaries. That on the 12th of September, 1829, they conveyed to said his heirs and assigns, another parcel adjoining the first mentioned tract, giving the boundaries, and beginning as follows : “ At the South East corner of the lot heretofore sold by said N. Goshorn to said Fenwick.” A copy of each of the deeds is exhibited. The bill states that the legal title at the time of executing the deeds, was in said Lorenia, and that said ' Nicholas had no other title than as her husband, and then traces the title from said Fenwick to the complainant. That defendants are giving out in speeches that they have some interest, title or claim to the premises, owned by the complainant as aforesaid, and thereby cause trouble and anxiety to the complainant, and the members of the Catholic Church who have their dead buried there.
    The prayer of the bill is, that defendants answer under oath, and exhibit their claim. That on final hearing, they be decreed to release all interest which they now set up, and if they be found not to have any interest in the premises, that then complainant’s title be quieted, and such other relief granted as may be equitable.
    The bill was filed June IT, 1845, to which the joint answer of Goshorn and wife was put in, September 22d, 1845. The defendants therein admit that the complainant has the title to the estate so far as it was conveyed to said Fenwick, but deny that he has any other title than that conveyed by the deeds, in the bill and exhibits described; they disclaim all interest in the property held by complainant under the deeds; but claim that all interest, not conveyed by the deeds, remains in said Lorenia as one of the children and heirs of Seth Cutler deceased.
    On the 10th of January, 1848, the complainant filed the following amendment to the bill:
    
      “ Your petitioner further states that it was the intention of the said Goshorn and wife, by both of the aforesaid deeds, to convey a complete and perfect estate, in fee simple, to said Fen-wick, from whom they received a consideration accordingly; but by reason of a clerical error or blunder in the scrivener who filled up the blanks in the first deed, but not noticed either by grantors or grantee at the time of executing said deed, the name of the said wife is omitted in the granting clause thereof, and in the attesting clause she is only described as relinquishing her right of dower, whereas her intention was to convey her fee in the premises therein described.”
    To this amendment there is a general demurrer.
    
      T. Walker, for Complainant;
    The deed from Goshorn and wife to Bishop Fenwick, it will be seen has been executed with all the formalities required by the Statute for conveying the estate of a married woman. It is duly signed, sealed, attested and acknowledged. But in filling it up there is an admitted clerical error, and the question is, whether this shall be permitted to defeat the admitted intention of the parties, which was to convey to the Catholic Bishop not only the life estate of Nicholas Goshorn, but also the fee of Lorenia his wife ? This would not be a question, if the deed were not the deed of a married woman. Had Mrs. Goshorn made this deed before she married, or after she became a widow, a Court of equity would not hear argument upon the question of correcting the mistake. It is the coverture of Mrs. Goshorn that creates all the doubt which exists. -It is the false and senseless theory of marriage, started in a barbarous age, and not yet wholly done away — that by marriage the husband and wife become one person, and that person is the husband ■— that by marriage a woman is changed from a rational, capable, and responsible being, into a mere appendage or appurtenance of her husband, a thing without rights, capacities, or responsibilities, except such as have been created by positive law — it is this false, absurd, and monstrous theory, which ages of progress have not been able wholly to expel from the common law, that makes it necessary to argue before this high tribunal the question, whether Mrs. Goshorn shall be allowed to assert a right, or do a wrong, which no other created being but a married woman, would be allowed to do, in any Court of law or equity, anywhere in Christendom.
    And I am greatly encouraged, in entering upon this argument, by the evidence I find in the latest reported decisions of this Court, that the light of reason has at length dawned upon the judicial mind of Ohio with respect to. the true legal theory of married women.
    A few years ago I had occasion to present an ■ argument to this Court in the case of McFarland v. Febiger, 7 Ohio Rep. Part 1, 194, in which a married woman united1 with her husband in the execution of a deed, so defectively drawn as not to convey her dower in express terms, she having first taken professional advice as to the defect, yet knowing at the time, that the purchaser supposed her dower was relinquished, and that he paid an additional price for such relinquishment. And this Court then held that she was not accountable for this downright fraud, because she was a married woman. Judge Lane, who delivered the opinion, said: “The alleged fraud consists in the fact, that a married woman joins her husband in a deed, which she conceives to be inoperative as to herself, but is silent upon that subject. Whatever might be the effect of such conduct in one acting in her own right, and making her own contracts, it cannot be imputed as a fraud to a married woman, disabled to contract, except upon one subject, and upon that only in prescribed forms. * * She had no agency in making the contract, or in preparing the deed. All this the purchaser transacted with the party whose title he obtained. The wife was passive. She was not bound to be otherwise.”
    Such was the state of judicial ethics, in regard to married women, in this State some twelve years ago. And it had not varied much when the decisions were made in Connell v. Connell, 6 Ohio Rep. 358 ; Good v. Zercher, 12 Ohio Rep., 364; Meddockv. Williams, 12 Ohio Rep. 377; Sillimanv. Cummings, 13 Ohio Rep. 116. But at the last session of this 
      Court in Bank, in Chesnufs Lessee v. Shane, 16 Ohio, 399, these four decisions were reversed, in an opinion, the reasoning of which appears to me unanswerable. I quote with pride pleasure from Birchard, C. J. (page 611:) “Now, had an unprotected feme sole, without the aid of any friend, executed her deed, and the Magistrate had omitted, through mistake, or other cause, to certify it in due form, she would transfer an equity, which the Legislature c might convert into a legal estate, ’ and ‘cure the title to the property? And yet it is by a supposed failure of the Magistrate’s certificate only, that the legal title of the feme covert did not pass. And it cannot be denied, that her grantee has an equity against her, flowing directly from her own act, as binding upon her conscience, and not less substantial in point of fact than is the equity against a feme sole, in a case of defective certificate to her conveyance. The cases are not distinguishable in reason. If the Legislature can heal the defect in one case, they may in the other. If a Court of Chancery ought to interfere in the one case, so ought it in the other. The fiction of law which merges the legal existence of the wife during coverture, is a mere fiction. It does not deprive her of the intellect and soul that God gave her. She is still a moral and intellectual being, the fit companion of man, and morally responsible for her conduct•”
    In the same spirit is the decision in Smith v. Handy, 16 Ohio Rep. 191; the Court say, (page 232) “In the case before the Court, Mrs. Willey joined with her husband in the execution of the deed of mortgage. She joined with him in the granting part of the deed. The commencement is in the usual form. “ Know ye, that we, James T. Clarke, John W. Willey, and Laura M. Willey, wife of John' W., in consideration,” &c., “ do give, grant, bargain, sell and confirm,” &c. The only defect claimed in the deed is that there is nowhere an express relinquishment of dower. All that the statute requires of a married woman in order to convey her own estate, or her dower interest, is that she should join with her husband in the deed. But it is said that there is nothing to show that the female intended to release her right of dower. If she did not intend this, what did she intend ? She had no more interest the property than a ■ contingent right of dower. Why did she join in the deed ? Was it a vain thing ? She must have intended that the deed should operate for some purpose, and so far as she was concerned, it would be entirely inoperative, unless it operated upon her right of dower. It is a well known rule that deeds shall be construed most strongly against the grantor, and the same rule must be applied to a feme covert when she conveys in conformity to the statute. If the statute is complied with, the conveyance is as effectual as if made by a feme sole”
    
    I understand these cases to establish these two positions: First, that you may inquire into the intention of a married woman, in executing a deed, and, in so doing, apply the same rules as if she were not married; and, secondly, if you can ascertain her intention, it shall be carried into effect in the same manner, and to the same extent, as the deed of any other person. Nor does this Court stand alone in the expression of these rational views. In Baker v. Child, 2 Vernon, 61, “where a feme covert, by agreement made with her husband, is to surrender or levy a fine ; though the husband die before it be done, the Court, by decree, will compel the woman to perform the agreement.” And in Jordan v. Jones, 16 Law Jour. Rep. Chy. 93, decided in December, 1846, the Lord Chancellor says, where a married woman had been previously ordered to execute a conveyance — “I shall be very much surprised if the Court has no jurisdiction, and if, when the Court has directed what ought- to be done, it is to be stopped because one of the conveying parties is a married woman” Again, in McCall v. McCall, 3 Day, 402, the husband had made a conveyance to his son, which, under the statute of Connecticut, had it been a valid conveyance, would have barred the wife of dower without her joining in it; and the Court held that it still had that effect, although it must first be reformed in equity — saying: “ It is such a conveyance as a Court of equity may validate, and when validated and the defect of the conveyance cured, it will have relation to the time of delivery of the deed, and not only bar the widow of her dower, but destroy all claims of the heirs.” And Constantine v. Van Winkle, 6 Hill, 177, a similar doctrine was held: “ The deed, after describing the husband and wife as parties of the first part, stated that he, by and with the volununtary consent of his wife, for and in consideration of the sum of, &c., to him in hand paid, granted and conveyed the premises to V.j his heirs, &c., and also all the estate of them, the said husband and wife, in every part or parcel thereof, to have and to hold the same, with the appurtenances, to the said V., his heirs and assigns forever.” Then followed a clause to this effect: “ And the said J., (the husband,) and his said wife, for themselves, their heirs, &c., do grant to and with him, the said V., his heirs and assigns, that he may at all times, and from time to time forever hereafter, peaceably and quietly have, hold, possess and enjoy the premises, &c., without any let, suit, trouble, denial or interruption of them, the said J. and his wife, or any other person or persons claiming by, from or under them or either of them.” And it was held, that the deed, though informal, sufficiently indicated an intent to convey the estate in fee of the wife, as well as the life estate of the husband.
    Let it be borne in mind that this is not a case which seeks the curing of a defective conveyance, by enforcing it, in equity,, as a contract to convey. As. before said, the deed containing the clerical error is duly signed, sealed, attested, and acknowledged. It has all the solemnities required by the statute, for conveying the. wife’s estate. The contract is executed, and not executory. The Court have only to correct, or what is the same thing, overlook a mere clerical error in the body of the deed, and the conveyance is complete.
    And therefore the reasoning of this Court in Webster v. Harris, 16 Ohio Rep. 490, becomes applicable. On page 501, the Court say: “ It matters little what was the form of the contract when the intention of the parties is palpable, and a full consideration has been paid and received. It would be a reproach to a Court of equity, could it be said that in such a case form must work a denial of justice. Whatever it might at law, this contract with Johnston was in equity, the contract of Moses, not Payne Cleveland, and for the simple reason that both intended that it should be so. That was what they designed, and the accidental circumstance of affixing a seal to the signature of Payne, will not be allowed in this Court to make it otherwise. We look to a result that will be consistent with the ends of justice, and where the way to attain it is so manifest, shall not be turned out of it, unless the well settled rules of law present insuperable obstacles. • No well settled rule or well considered adjudication will be contravened by rejecting the seal and reforming this contract, so as to make it effect the objects of the contracting parties. The omission to sign as the attorney of Moses, and the affixing a seal, were accidental circumstances, which originated in unskillfulness, ignorance, or mistake, and ought not to defeat an agreement which all parties, for many years, treated as obligatory, which on one part was fully executed, and upon the other was thirty years without disaffirmance.”
    The true test of a clerical error, which will not vitiate a deed, is, that taking all the parts of the deed together, you can with certainty arrive at the meaning of the parties; in which case the error is of no account. Apply this test to this deed. It begins: “ This Indenture, made between Nicholas Goshorn and Lorenia, his wife,” &c., “ witnesseth that the said Nicholas Goshorn hath granted,” &c. After the description comes this expression: “ And all the estate, &fc., of them, the said Nicholas Goshorn and Lorenia, his wife” In the habendum clause are these words: “ The premises hereby bargained and sold, or meant or intended so to he.” In the attesting clause the words are : “ Nicholas Goshorn, together with Lorenia, his wife, who hereby relinquishes her right of dower in the premises, have,” &c. And the deed is duly signed, sealed and acknowledged by Goshorn and wife. Now, looking at this matter in the light of common sense, it is an inevitable inference from the deed itself that the intention was to convey the wife’s estate. Goshorn had no fee, yet the conveyance is to Fenwick “ and his heirs and assigns forever.” Mrs. Goshorn had dower to relinquish, and therefore could not have intended to relinquish dower. But what both parties did intend was to convey, as the deed says, “ all the estate of them,” the husband and wife. The omission, then, of the wife’s name, in the granting clause, and the insertion of dower in the attesting clause, are both clerical errors which can be corrected from the deed itself, when we know the fact that the fee was in the wife. And to all this may be added, that in the second deed, in which there is no pretence of defect, Goshorn and wife refer to the first conveyance as a valid one. The land conveyed "by the second deed adjoins that conveyed by the first; and in giving the boundary of the second tract, they specify “ the south line of the grounds heretofore sold to Edward Fenwick.”
    In Spooner v, Payne, 16 Law Jour. Rep. .C. P. 225, where the submission to an arbitration mentioned a mortgage executed “ on or about the 29th of September, 1818;” and the award was made upon one executed “ on the 26th of September, 1817,” but admitted to be the mortgage in the submission mentioned as executed “ on or about the 26th of December, 1818;” this last expression was held to be a mere clerical error, which did not vitiate the award; Coliman, J. says: “Perhaps this part of the award does not properly describe the deed mentioned in the submission; but when we look at the submission, and see that there is but one Indenture mentioned, I cannot entertain a doubt that the difference in the date is a mere clerical error.” And such errors are very likely to occur in filling blank forms. Thus in Berdoe v. Spittle, 16 Law Jour. Rep. Exch. 258, in filling a blank declaration, it stood “ h . been summoned and ha not paid,” but the Court held it good.
    But a case more in point, is that of Carr v. Williams, 10 Ohio, 305. There the fee was in the wife, and the deed commenced thus: “ Know all men by these presents, that in consideration of seven hundred and fifty dollars to them in hand paid, have,” &c., omitting the names of both husband and wife as grantors. A bill was filed to correct the mistake. The Court held that the mistake could not be corrected against a married woman; but that this was a mere clerical error which did not vitiate the deed. Grimke, J. said : “ Considering the omission of the names of the grantors in the granting clause of the deed as a mere clerical error, it is contended that the conveyance is in truth not defective, and yet the complainant is entitled to the interference of a court of equity.” [In that case complainant was not in possession.] “ But if this is the effect of the omission, where the deed is signed and sealed by the husband and wife, and in all other respects executed according to law, then the complainant has a valid, legal title, and his remedy at law is perfect.” And if the deed were produced, so that the fact could be certainly and distinctly ascertained, we should probably have no hesitancy in so deciding.” In accordance with this intimation an action of ejectment was afterwards brought, and the Supreme Court, on the Circuit, held the deed good. Now in comparing these two cases, so far as the omission is concerned, the case at bar is the clearest. Here the parties are named as parties to the Indenture; there they were not; the form being that of a deed poll. Here only the wife is omitted in the granting clause ; there both are omitted. If, then, a Court, on the production of that deed, would supply both names, they will a fortiori supply the wife’s name in this deed. And when this is done, Goshorn and wife will have conveyed “ all the estate of them, the said Goshorn and wife,” by the very terms of the deed; and the insertion of dower after-wards, when the wife had no dower, will be regarded as surplusage.
    In this connexion I also lay great stress upon the case of Constantine v. Van Winkle, 6 Hill, 177, before quoted. That case is identical with the case at bar in every particular but one, namely, that it contained a joint “grant” or covenant of the husband and wife for quiet enjoyment, which ours does not, though the covenant of warranty was, like ours, by the husband only. But Senator Bokee, who gave the leading opinion in the Court of Errors, (where the judgment was unanimous against the.wife,) laid no stress upon this covenant. On page 187 says : “ As to the construction of the deed, I do not believe to be considered merely as a conveyance of the life estate of John Van Winkle. There would have been no necessity for making Jane Van Winkle a party tó such a conveyance. It purports to convey all the estate of John Vaft Winkle and Jane his wife, (just as our deed does,) ‘with the voluntary consent and good liking of the said Jane,’ testified by her. bemg made a party thereto, and signing and sealing the same. The deed, though inartificial, contains sufficient granting words to convey the fee simple of the estate, and at this late period it ought not to be set aside for mere, informality.” Senator Porter likewise says, on page 191: “ It must.be conceded that it is a very informal conveyance, so far as relates to her interest in the premises ; but if her intentioh to convey that interest appears from the deed, with reasonable certainty, it must be allowed to operate accordinglyand he afterwards refers to her joining in the covenant only as evidence of such intention. And why should this covenant make any difference, when the theory of the common law is, that a married woman can make .no binding executory contract whatsoever ?
    I hardly need to suggest to this Court that there never can be a stronger reason for quieting title, than exists in this case. The land was purchased and has been used as a burial ground. As such it has been consecrated by the solemn rites of the Catholic Church; and the kindred of those whose ashes repose there, look to it as holy ground. If then the law be not very clearly the other way, the Court will quiet this title, as a religious duty. Let us then examine the leading authorities likely to be cited against us, and see if they are really against us. The Court will find that not one of them is precisely like our case. In every one of them, there was the absence of any words in the body of the deed to show what the wife did convey; in other words there was something more than a clerical error, which could correct itself by the context, as in our case.
    
      
      ■Catlin v. Ware, 9 Mass. 218. Here the wife merely signed and sealed the deed, but did not acknowledge; and her name was not mentioned in the body of the deed. Held, that this did not bar dower. The Court said: “ A deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound.”
    
      Lufkin v. Curtis, IS Mass. 223. Here the deed was executed and acknowledged by husband and wife ; but the wife was only mentioned in the testatum clause', as signing and sealing, but without any granting words. Held, that this did not bar dower. The Court said: “ It contains no release of her right, nor any declaration for what reason she executed it.”
    
      Fowler v. Shearer, 7 Mass. 14. Here the husband had given a power of attorney to his wife to convey lands held in her right. In the beginning of the deed she described herself as grantor in her own right, and as attorney for her husband. This ivas the only mention of her attorneyship, for she covenants and executes in her own right only. Held, that she could act as attorney, but did not in this case; and that the deed, as in her own right, was void, because her husband did not join in it. The Court said as to her covenants: “ The usage therefore has never extended to make her liable to an action on the covenants in the deed, further than they may operate by way of estoppel.”
    
      Powell v. Monson Man. Co., 3 Mason, 347. In this case it would seem that the wife, in whom was the fee, only joined with her husband in signing and sealing, but was not named in the body of the deed. For Story says: “ Riddle was seized of the land in right of his wife, who was owner of the fee, and she has signed and sealed the deed, but the husband alone is named as grantor in the deed, and there are no words in the body of the deed, containing a grant or release on her part. Under these circumstances, it is very clear that nothing passed by the deed, but the life estate of Riddle.”
    
      Cox v. Wells, 7 Blackford, 410. This deed purported to be an indenture between the husband alone and the grantees. The wife was not mentioned until the testatum clause, and then only as joining in the execution without any words of grant or relinquishment. She also joined in the acknowledgment. Held, that this did not bar dower. The Court said : “ The deed does not convey the interest of the wife in the premises; her name not being inserted in the body of the deed.” Cited :— Catlin v. Ware, 9 Mass. 209; Lufkin v. Curtis, 13 Mass. 223.
    
      .Martin v. Dwelly,6 Wendell, 1. Here the wife joined with the husband in executing a deed to convey her land, but not in the acknowledgment, which she expressly refused to do. Held, “ that as the statute of New York expressly required her to join in the acknowledgment, this deed did not pass her title ; that she was not estopped by joining in the covenants; and the deed, as to her, was not operative as a contract to convey.”
    The case, then, which we present, is one where the statute has been complied with in the execution of the deed; where a full consideration was paid for the fee ; where the intention to convey the fee is admitted, and if it had been denied, might be gathered from the deed itself; where provision is made in the habendum clause, for supplying any omission or mistake, by inserting the words, “ meant or intended to be bargained and sold; ” and lastly, where the precedents, if not all for us, are none of them directly against us.
    Shall then the clearest justice be defeated, and the ashes of the dead remain liable to be disturbed, in consequence of a manifest blunder of the scrivener in filling up a deed, merely because the grantor was a married woman ? Let a Court of conscience, sitting in a Christian land, in the middle of the nineteenth century, give the answer.
    
      A. iY. Riddle and J. H. Clemmer, for Defendants.
    The complainant seeks to have a decree in this case against Lorenia Goshorn, who was and is the wife of N. Goshorn, quieting his title as against her on the ground of mistake, clerical error, or blunder of the scrivener, the complainant only holding the title of N. Goshorn, the fee simple being in his wife, Lorenia, and she never having parted with it. The defendants ’ admit title in complainant as far as the title was conveyed under the deed to Fenwick, and no farther; and the bill in this case being filed under the 14th section of the Chancery Act, we submit to the Court whether Mrs. Goshorn, a feme covert, has set up such a title to said property as is contemplated by said section, so as to afford the relief to the complainant which he seeks; but be this as it may, there is not a,case in the books, where a Court of Chancery has undertaken to enforce, specifically, the executory conduct of a married woman. In the case of Butler and Athwater v. Buckingham, 5 Conn. Rep. 492, it was held, “ that an agreement of a married woman, with the consent of her husband, for the sale of her real estate, was absolutely void at law, and that a Court of equity would never enforce such a contract against her.” It has been held in Ohio, “ that a deed so defectively executed as not to convey the legal title, would be considered as a contract to convey and be enforced in Chancery,” but an executory contract of a married woman cannot be enforced against her.
    A deed duly executed is the only instrument known to the law, by which she can convey or incumber her estate. McFarland v. Febiger, 7 Ohio Rep. 194 ; Silliman v. Cummins et. al, 13 O. Rep. 116.
    The question in the case is, whether the deed of a feme covert, so imperfect as to convey nothing, may be rectified so as to convey her estate. The defendants insist that no such decree can be taken against the acts of a married woman. The deed from Goshorn and wife is defective, or it is not: if the estate is granted, and the deed executed in due form, then it is not defective, but if there is no estate granted, then it certainly is defective.
    In the case of Catlin v. Ware, 9 Mass. 218, where the wife merely signed and sealed the deed, it was held that it did not bar the wife of her dower, and that “ a deed cannot bind a party sealing it unless it contains words expressive of an intention to be bound.” The same doctrine was held in the case of Cox v. Wells, 7 Blackford, 410.
    
      So in the case of Lufkin v. Curtis, 13 Mass. 223, the deed was executed by the husband and wife, but the wife was only mentioned in the testatum clause as signing and sealing, out any granting words. Held that this did not bar dower. The Court say, in speaking of the deed, “It contains no release of her right, nor any declaration for what reason she executed it. To have been valid for the purpose contended for by the tenant, it should have contained words importing a release of her claim of dower.”
    Again, in the case of Martin v. Devetty, 6 Wend. 9, it is decided that a contract with a married woman with respect to her real estate is absolutely void; and the Court say, “ He that wishes to divest a married woman of her land, must take care that the statute is complied with before he parts with his money.” •
    But a case very similar to this, and which involved the same principle as that before the Court, is that of Powell v. Monson Man. Co., 3 Mason, 347.
    Justice Story, in delivering the opinion in said case, says: “ Riddle was seized of the land in right of his wife, who was owner of the fee, and she has signed and sealed the deed, but the husband alone is mentioned as grantor in the deed, and there are no words in the body of the deed containing a grant or release on her part; under these circumstances it is very clear that nothing passed by the deed but the life estate of Riddle, for though by our local law, a wife, by joining with her husband in the deed, may convey her estate, yet the deed must contain apt words to make her a grantor, otherwise the deed conveys only the right of her husband.”
    But a still stronger case, and more in point, if possible, is that of Carr v. Williams, 10 Ohio, 305. In that case, the defect consisted in the ommission of the names of both grantors in the deed, but both Williams and wife joined in the other parts of the deed, and in the covenants. It is true that after-wards, when the case came up in the Supreme Court on the Circuit, the Court held the deed to be good, but then that has nothing to do with the principles of the case as decided in 10 Ohio, 305. There it was held that a defect in a deed of a huskan<* an<^ wife cannot be rectified as against the wife. Grimke, in delivering the opinion in the case, says: “ Our Statute prescribes the mode in which a married woman may execute a conveyance of her land. It directs that she and her husband shall join in the conveyance, and if this provision is not complied with, then the deed stands as it would at common law, absolutely void and inoperative as to her; and if a deed, the body of which was defective, was still to be treated as an agreement to convey,'or as an imperfect conveyance, other provisions of the statute equally essential would be disregarded. The acknowledgment and separate examination would not be to such an instrument as the law contemplates. I believe no case can be found where a mistake in the deed of a married woman has been rectified, as against her.” Such is the language of the Court. And, again, in the same case of Carr v. Williams, the Court say, “ Either the conveyance is defective, or it is not. In the first case, the mistake cannot be corrected as against a married woman; in the second, there is no defect to be rectified; and in either event the bill must be dismissed.” The bill in that case was filed to correct the mistake of the scrivener in not filling up the blank in the deed. The Court say that if the deed were produced, they should probably have no hesitation in deciding whether it was valid to pass the legal title or not, but then that could have made no difference in the decision, for the principle is there laid down emphatically, that if the deed was defective, it could not be cured, and if not defective, there was nothing to cure. So it is in this case precisely. If the deed of N. Goshorn and wife to Fenwick is defective as to Mrs. Goshorn, it cannot be corrected; and if it is not defective, there is nothing to rectify.
    The defendants contend that the deed is defective, and that there is no clerical error about it; that it differs from the deed in the case of Carr v. Williams, in this; that in that case it was clearly the intention to have the grantors’ names filled in the blank, but by mistake or blunder they were omitted, but in this case there are no blanks left; all the names are in it that the person who drew the deed intended to have in it, and there are no accidental omissions in this deed from Goshorn and wife. This is evident by the reading of the deed itself.
    If the Court can grant relief in the case before them on the grounds claimed by the complainant’s solicitors, after examining the deed itself, then there will be no difficulty in Ohio hereafter to procure a decree to perfect the most imperfect conveyance, wherein a married woman is a party, and conveyed- nothing. You may as well abolish the restrictions of the statute altogether, for they will be perfectly useless, and say that all a married woman has -to do, to convey her estate, is to sign a deed, and it makes no difference what is in that deed; if wrong, it will be corrected by the Court. But we do not think that the Supreme Court of Ohio is prepared to establish Such a doctrine.
    If a life estate is only conveyed, in. consequence of the omission of the word “ heirs,” will the gentlemen contend that relief should be granted ?
    If the name of' N. Goshorn alone appeared in the granting part, and the name of his wife only appeared in the. testatum clause, without releasing anything, would a Court of equity, in the face of the authorities We have here cited, supply the defects, and insert her name in the granting part of the deed for the purpose of passing her estate, either in fee simple or in dower, as the case might be ? This would be precisely the case now before the Court, for the recital of parties and estate granted, amounts to nothing as far as Mrs. Goshorn is concerned, because she did not unite in granting it.
    Or would the Court insert in the testatum clause of a deed, which was signed by husband ánd wife, when the wife had a dower interest, the words (where the wife’s name only appeared in said clause,) “ who hereby releases her doWer,” when no dower, without the insertion of said words, had passed by deed ?
    Ignorance of the law cannot be set up as a ground for reforming a deed, founded on such a mistake. Story’s Equity, p. 129; 6 John. Chy. Rep. 169, 170.
    
      The Court well say in 13 Ohio Rep. p. 118, “A married woman has no legal existence or power to transfer her interest in real estate, except through the statutory channel.” Again, “ when a married woman attempts to convey, and lacks power from not pursuing the prescribed mode, Courts of equity will not relieve, because to amend the mode is to create the power.”
    The same doctrine is held by the Court in the case of Good v. Zercher.
    
    The complainant’s solicitors insist that Mrs. Goshorn is barred, on the authority of the case of Smiley v. Wright, 2 Ohio, 506. This is a case where a widow, being present at the sale of the premises in which her dower was assigned, suffered it to be sold free of her estate, inasmuch as she did not contradict the auctioneer selling the property, who announced it as sold free of her dower, and the proof in the case going to show that she authorized it. Now we see no similarity between that case and the case now before the Court. The widow in that case, at the time, was a feme sole, under no restraint of coverture, and at perfect liberty to act as she thought best in respect to her property. In this case, Mrs. Goshorn is a married woman; has not the right to control and dispose of her property, in any other way than that prescribed by the statute. The question whether a feme covrt would be barred in permitting another to purchase her estate, did not come up in that case; the parties were sole, and neither of them under any restrictions of coverture.
   Avery, J.

The distinct relief sought by the bill is, that Goshorn and wife exhibit their title, and that the Court decree that they release to the complainant all the right, title and interest they now set up, and if they be found not to have any title or interest, that complainant’s title be quieted against the claims of the defendants. There is no prayer, indeed, in this bill, for the specific execution of a contract; still, if there is any title or interest in the premises, left in this married woman, the bill seeks to obtain it, and seeks fo do this by a decree of the Court. It is, in effect, nothing less than compelling a married woman to convey what she intended, but failed to convey by her Has the Court authority, upon principle or precedent, to do either under its common equitable jurisdiction, or ■ by virtue of any further authority, supposed to be found in the fourteenth section of -the act directing the mode of proceeding in Chancery ? That section, (Swan’s St. p. 703) or so much of it as may be of use in the present inquiry, is as follows: “ Any person having the legal title and possession of lands, may file a petition against any other person setting up a claim thereto; and if the- complainant establishes his title to said lands, the defendant shall be decreed to release his claim.”

The bill, as alleged in the argument, is brought to quiet title, and founded on the above section. The complainant claims the “legal title and possession,” and one of the defendants, Lorenia Goshorn, “ sets up a claim thereto,” in reversion, after her husband’s death.

Founding the right to proceed, upon this section alone, it is not any equitable title to the premises, but the legal title which must be shown to be in the complainant. This title, if he has it, is claimed from a deed made an exhibit in this case, executed by the defendants, Goshorn and wife, to Bishop Fenwick. Had the husband, when the deed was given, been the owner in fee simple, without any doubt, the title in fee would have passed ; it is a deed precisely adapted to such a state of the title. It is the husband alone that grants and conveys throughout the entire body of the deed; her name is never there mentioned but once, and then just as it would have been, had the husband owned the land, and the wife possessed only a contingent dower interest. At the end of the deed the same appearance is kept up, and there the wife relinquishes her dower. Had the husband been the owner, then the conveyance would have been perfect and the complainant would have needed no assistance from, a Court of Chancery.

• Now by what principle can a Court of equity take this deed, which is regular and perfect upon its face, drawn strictly ac.cording to the statute, to convey a fee by the husband and dow1 er by the wife, and alter it, so that it shall convey a fee simple, • instead of a dower interest by the wife ? There is not a word of grant by the wife, nor any thing equivalent to it in all the deed. This deed, by its terms and at law, does not convey any fee from the wife. The authorities produced, show that no fee of her’s in the land, passed by a deed so drawn. A life estate passes by this, deed, and that is a legal title, which may satisfy the demands of the statute. But to this neither of the defendants sets up any claim ; a case therefore seems not to be made out under the statute. No precedent, as it is supposed, can be found, of a decree against a feme covert to convey lands,, held by descent or by the usual conveyance, upon the ground of her having agreed to convey, or her having executed any defective conveyance, whether upon a full consideration paid or not; and the fraud of the wife in the transaction would make no difference. That a mistake in a deed cannot be corrected against a married woman, was decided in the case of Carr v. Williams, 10 Ohio Rep. 305.

But it is contended, that there is nothing in the case, as stated, that has reference to the principles governing the specific execution of contracts. And no relief is asked because the deed was drawn differently from the instructions given to the draftsman. The difficulty all arises, it is said, from a clerical error; and this error may be corrected even in the case of a married woman, by a Court of equity. What is termed a clerical mistake or error, can be corrected at law as well as in chancery. If it is obvious, as such a mistake must be, upon the face of the instrument, it will always remain so, and lapse of time will not increase the difficulty of correcting it; the correction will be made, or treated as made, whenever occasion shall require it.

There is nothing in this deed, which, in the opinion of the Court, has the character of such an error. To alter it in such a manner as to conform to what may have been the intention of the grantees, would be equivalent to making a new deed. This, against a married woman, cannot be done.

The deed, after the usual words of grant by Nicholas Goshorn alone, of the fee simple, to Bishop Fenwick, and for consideration expressed of $1,218 75, describes by metes bounds the premises so conveyed in fee; then immediately following is this clause, “ and all the estate, right, title, interest, claim and demand of them, the said Nicholas Goshorn and Lorenia his wife, in and to the premises and every part thereof.” This is much relied upon as evidence, that it is by a mere clerical mistake, that no words of grant, by the wife, appear in the deed. But all these words are entirely consistent with an intention, on her part, not to part with her fee in the land, and would be appropriate words to convey a less estate, to wit, a dower interest.

The fact further, that a full consideration was paid for the fee, that, to the words, “ to have and to hold the premises hereby bargained and sold,” are added, the words, “ or meant, or intended so to be,” together with the reference in the second deed, to the conveyance of the premises in the first, all may show strongly, that the land ought to have been conveyed in fee by the deed, and warrant the exercise of the equitable power of the Court, if any such is found to exist, in decreeing that to be done, which ought to have been done by the parties. But all this, we think, does not prove that here is only a clerical mistake which needs to be rectified.

There must be a decree against the complainant.  