
    Samuel Hout v. John Hout et al.
    
    
      1. Where an instrument purporting to convey real estate is acknowledged before a proper officer, but the certificate of acknowledgment is not subscribed by such officer, the instrument, under the provisions of the statute of this State (1 S. & O. 559-60), is not a valid deed of conveyance of real estate, and is inoperative to pass the legal title to the grantees named therein.
    
      2, Where such instrument is not made on any valuable as contradistinguished from a merely meritorious consideration, but is made by a father, in consideration of love and affection, to one of his sons and children of a deceased son, and the grantor in the instrument dies without making any other disposition of the premises intended to be conveyed, and without ever having made • any provision for another son not named in the instrument, equity will not uphold the instrument as a deed of conveyance as against the latter.
    8. The provisions of article 2, section 28, of the constitution of this State, and of the first section of the act of March 10, 1859, S. & C. 1172, are permissive and not mandatory, and it still remains a question for the courts to determine under what circumstances, on what principles of equity, they will give effect to an instrument or conveyance which is invalid in law.
    Appeal. Reserved in the district court of Jefferson county.
    On the 2d of June, 1866, the plaintiff, Samuel Hout, filed his petition, under the code, in the court of common pleas of Jefferson county, for partition, claiming to be the owner in fee of one undivided third part of the premises described in the petition, as a son and heir at law of George Hout who died seized of the premises in fee, and stating that the owners of the other undivided two-thirds of the premises, as tenants in common with the plaintiff, are John W. Hout, a son, and George S. Hout and John O. F. Hout, grandsons of the decedent, who are made defendants.
    The defendants in their answer deny the title claimed by the plaintiff, and aver that George Hout, the decedent, in his lifetime conveyed the premises, entire, to them, by deed, but that the magistrate who took the acknowledgment of the deed omitted, through inadvertence, to subscribe his name to the certificate of acknowledgment, and that the omission was not noticed until after the death of the decedent. The answer sets out the facts as to the execution, acknowledgment and delivery of the deed, and asks the court to order the heirs of the decedent to execute to the grantees named in the deed, made by the decedent a deed correcting the omission named, and conveying the premises, in fee, to those grantees, and that the plaintiff be enjoined from the prosecution of his action.
    The plaintiff replied joining issue with allegations in the answer.
    The case having been decided in the common pleas an appeal was taken to the district court, in which, at the September terna, 1867, the case was heard and reserved to this court upon the following findings of fact:
    
      “ George Hout, the father of plaintiff and defendant John W. Hout, and grandfather of the defendants George S. Hout and John O. F. Hout, on the 8th day of February, 1866, sent for A. O. Stewart, a justice of the peace in and for said county of Jefferson, Ohio. Stewart went to said George’s house, and, under his instruction, prepared a deed, wherein said George Hout was grantor and the defendants, John W. Hout, George S. Hout, and John C. F. Hout, were grantees, reading as follows:
    “ ‘ Know all mm by these presents, that I, George Hout, of the county of Jefferson, and State of Ohio, in consideration of the sum of five thousand dollars, in hand paid by John W. Hout, George S. Hout, and John O. F. Hout, of the same county and State, have bargained and sold, and do hereby grant, bargain, sell and convey, unto the said John W. Ilout, George S. Hout, and John O. Fremont Hout, their heirs and assigns, forever, the following premises, situate in the county of Jefferson, in the State of Ohio, described as follows: ’ ”
    [Here follows the description.]
    “ ‘ To have and to hold said premises, with the aj>purtenances, unto said John W. Hout, George S. Hout, and John O. Fremont Hout, tbeir heirs and assigns, forever. And the said George Hout, for himself and heirs, doth covenant with said John W. Hout, George S. Hout, and John C. E. Hout, their heirs and assigns, that he is lawfully seized of the premises aforesaid, that the premises are free and clear from all incumbrances whatsoever, and that he will forever warrant and defend the same, with appurtenances, unto the said J. W. Hout, George S. Hout, and John C. F. Hout, their heirs and assigns, forever, against the lawful claims of all persons whomsoever.
    “ In testimony whereof, the said George Hout hath hereunto set his hand and seal, this 8th day of February, a.d. 1866.
    “ George Hout, l. s.
    
      “ ‘ Executed in presence of W. S. James, A. C. Stewart.’”
    The State of Ohio,
    Jefferson County,
    ss.:
    "‘Before me, A. C. Stewart, a justice of the peace in and for said county, personally appeared the above-named George Hout, and acknowledged the signing and sealing of the above conveyance to be his voluntary act and deed, this 8th day of February, a.d. 1866.
    
      “ ‘ Received, the day of the date of the above indenture, of the above-named J. W. Hout, George S. Hout, and John C. F. Hout, the sum of five thousand dollars, lawful money of the United States, being the consideration money above mentioned, in full.
    "'George Hout.
    "'Witness, W. S. James, A. C. Stewart.’ ”
    
      “ George Hout then signed and sealed said deed, which was duly attested by one Williamson James and A. C. Stewart as witnesses, and said Hout also signed the receipt in said deed, and personally acknowledged the signing and sealing of said conveyance to be his voluntary act and deed, before the said A. C. Stewart, as said justice of the peace, but the justice, through inadvertency, failed to subscribe his name to the certificate of acknowledgment. He, however, had with his own hand filled up said certificate, writing his name in the body of the certificate. He then told George nout that a revenue stamp ought to be placed upon the deed, and as no stamp was in possession of either of them, said George Hout said a stamp could be put upon the instrument. The justice then handed the instrument to said George Hout, and he shortly thereafter, and upon the same day, delivered said instrument to the defendant, John W. Hout, intending thereby to convey the land described in said instrument to the grantees therein named, in fee-simple, and intending that said instrument should have effect as a deed. All parties concerned, including the justice of the peace, were and continued in ignorance of the fact that the justice had omitted to subscribe his name to the certificate of acknowledgment, until some time subsequent to the death of said George Hout, who died on the 16th day of April, 1866. The grantees, George S. Hout and John O. F. Hout, were aged respectively, twelve and ten years, and resided at the time with their said grandfather. Although a money consideration was named in said deed, no valuable consideration passed, or was expected to pass, but the real consideration was natural love and affection ; the grantor intended thereby to make either a gift or an advancement.”
    
      Trainer & McClave for plaintiff:
    1. We claim that the pretended certificate to the paper writing spoken of in this case by the defendants, not having the name of the justice of the peace subscribed thereto, is a nullity, and of no effect (S. & C. 558-9, 560). And hence not being such a certificate of acknowledgment as required by law, the court cannot cure the same by an order, so as to make the same a complete and perfect deed of conveyance. Had the certificate of acknowledgment been regularly signed by the justice, and some omission, defect, or error had occurred in the body of the certificate, and discovered after the delivery of the deed, perhaps the court, by an order, might cure such omission, etc. (S. & C. 1172-3, sec. 1, act of March 10,1859). To have made said paper writing a perfect conveyance, the same should have had, at the time of the delivery thereof, thereon a certificate of acknowledgment, signed by the justice,.and a revenue stamp of the United-States. And the same not having either, the court cannot now perfect the same.
    2. The act of March 10, 1859, referred to, does not apply to deeds of gift or voluntary conveyances. The court having found said paper writing to have been intended to convey the land therein described, as a gift to the said defendants, cannot now give the defendants relief and make for them, out of that which is imperfect and defective, to convey a gift, a complete and perfect instrument of conveyance. The defendants are volunteers. The plaintiff being a son and heir at law of George Hout, deceased, has equal equity in the said real estate with the defendants. To make the gift good the instrument conveying the gift must be perfect at the time of the delivery, and if the same is not perfect, the gift fails, as a court of equity will not lend its aid to make perfect an imperfect gift. If we are right in this view, the court must leave the parties where it found them, and in doing so, no injustice will be done, as the parties have equal equities in the distribution of the said real estate. Pennington v. Patterson, 2 Gill & Johns. 218; 2 Story’s Eq. Jur. 121-2, sec. 793; Ib. 22-3, sec. 706; 1 Ib. 460, sec. 433; Ib. 198, sec. 176; Minturn v. Seymour, 4 Johns. Ch. 497; 1 Lead. Cas. Eq. (Hare & Wallace’s notes) 324; Caldwell v. Williams, Bailey’s Eq. 175, 176; Compton v. Vessee, 19 Ala. 259; Hays v. Kershow, 1 Sandf. Oh. 258; Reed, v. Vanarndale, 2 Leigh, 560; Evans v. Battle, 19 Ala. 398; Pinckard v. Pinkcard, 23 Ala. 649; Dawson v. Dawson, 1 Devereau’s Eq. 93, 99.
    
      P. O. Hoff mam for defendants:
    The magistrate who took the acknowledgment of the deed omitted, through inadvertence, to subscribe his name to the certificate of acknowledgment; and although the officer is required, by the act of February 22, 1831, to subscribe his name to such certificate, yet, under the statute of March 10, 1859, sec. 1 (S. & 0.1172), when the fact has been established in court, as has been done in this case, that the omission was occasioned by inadvertence, the instrument has full effect as a deed, and passes the legal title just as effectually as if such omission had not occurred. The facts found by the district court bring this case fully and entirely within said section, and why shall the defendants not have the benefit of its provisions? The proof, acknowledgment, and recording of deeds are purely matters of legislation. The statute may provide that deeds shall be valid and pass the legal title to lands without witnesses, without acknowledgment before an officer, or, if such acknowledgment be required, that proof thereof may be made outside of as well as upon the instrument. Errors, defects, and mistakes in deeds have been corrected by legislation. See S. & C. 469, 470, 473, 474. The errors, defects, and mistakes thus corrected are, it is true, patent upon the instruments themselves, but it is just as competent for the legislature to say, as we claim it has said, that an omission, such as is found in this case, shall not defeat the intention of the parties, but that such instrument shall have full effect as a legal conveyance in the courts of this State.
    We do not need the intervention of a court of equity in this case. “ The courts of this State,” all courts of this State, must “ give full effect ” to this deed “ according to the true and manifest intention of the parties thereto,” the necessary proof having been made in court.
    All statutes providing for the proof, acknowledgment and registration of deeds apply alike to all deeds. No distinction is made on account of difference in consideration. The question in this case is, what do the statutes require, to pass the legal title ? and not, what a court of equity may do in the premises.
    “An acknowledgment of a deed is not a part of the deed itself; it is required only as evidence of its execution, or as authority for its registration.” 9 Ohio, 121.
   Brinkerhoff, C.J.

That the deed on which the defendants’ claim of title to the whole of the premises named therein rests, is invalid in law, is very clear. The statute, 1S. & C. 459, 60, imperatively requires that a deed of conveyance shall be acknowledged by the grantor before some one of the officers enumerated in the act, who shall certify such acknowledgment, and shall subscribe his name to such' certificate.” This the officer failed to do. His name was subscribed as a witness to the deed, but not to the certificate of acknowledgment. This omission was fatal to the deed as. a conveyance in law. But the defendants set forth the facts as found .by the district court, and, by way of cross-petition, invoke the intervention of the court on the principles of equity to reform the instrument and by decree to perfect the title in them. On the facts found by the district court may this be done ?

It will be noticed that by the terms of the deed, the execution of which was left incomplete as a legal conveyance, the grantor attempted to convey an undivided third of the premises described therein to one of his sons, and the other two-thirds to two grandsons, being sons of a deceased son of the grantor ; and the plaintiff is another son of the grantor, not named in the deed, and claiming one-third of the premises by inheritance. The deed, on its face, purports to have been made for a valuable, moneyed, consideration ; but the fact was, as found by the district court, that it was made, or intended to be made, to all the grantees in consideration of love and affection. Now, in the determination of this question we will assume, that if the deed in question, though imperfect in its execution, had been so far made to a purchaser, and for a valuable pecuniary consideration, it would, in equity, be sustained as against the heir; but it does not follow that it will be so sustained against an heir or other party having claims upon the grantor’s bounty equal in foundation and merit to the grantees. The actual consideration for the imperfect deed in question was that of love and affection, growing out of the blood-relation between the grantor and the grantees, and known in law as a meritorious consideration, as contradistinguished from a valuable consideration on the one hand, and a mere voluntary bounty on the other. Adams’ Equity, original paging, 97, and eases there cited. The same writer says, p. 98, “ Although a promise made without a valuable consideration cannot be enforced against the promissor, or against any one in whose favor he has altered his intention, yet if an intended gift on meritorious consideration be imperfectly executed, and if the intention remains unaltered at the death of the donor, there is an equity to enforce it in favor of his intention, against persons claiming by operation of lem without an equally meritorious claim? Again, the same author says, p. 100, “ The party against whom relief is asked must not have an equally meritorious claim. If, therefore, the heir at law or remainderman be a child unprovided for, it seems the better opinion that the equity will not be enforced.” The same doctrine is laid down in 1st Leading Cases in Equity, 330, 331, and seems to be well supported alike on principle and by adjudged cases.

In the case before us it does not appear that the plaintiff ever had any provision made for him by his father, and for aught that appears in the finding of facts in the case his claims in equity are not less meritorious than those of his brother and his nephews.

But it is mged in argument in behalf of the defendants that effect ought to be given to the instrument under which they claim, by reason of the provisions of article 2, section 28 of the constitution of this State and the legislation under it. That section of the constitution is as follows : “ The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts, but may, by general laws, authorise courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings, arising out of their want of conformity with the laws of this State.”

Now, it is very clear, we think, that the power which this section of the constitution confers upon the legislative body, and the powers which the legislative body are authorized to confer upon the courts, are permissive and not mandatory powers. “ The general assembly .... may .... authorize courts,” etc., is the language. The general assembly may put into exercise the powers granted in the section under consideration, or it may refrain from doing so without any disregard of a constitutional mandate ; it may authorize courts to cure omissions, etc., but it cannot command them ; and the powers of the legislature to authorize, and of the courts to act upon the authorization, would seem, by implication at least, to be limited to cases where it can be done “ upon such terms as shall he just and equitable.”

The only legislation had under this section of the constitution and bearing upon the question before us, so far as we are aware, is found in the first section of the act of March 10, 1859, “ to authorize courts to give effect to the intention of parties and officers,” etc., 2 S. & C. 1172 ; which provides, that in all cases wherein any officer or officers, party or parties, person or persons, . . . has heretofore made, or may hereafter, by reason of inadvertence or otherwise, make any omission, defect, or error in any instrument in writing, or in any proceeding whereby the same shall not be in strict conformity with the laws of this State, it shall be competent for the courts of this State, and they are hereby authorized to give full effect to all such instruments and proceedings according to the true and manifest intention of the parties thereto.” Now, the provisions of this section of the statute, like those of the section of the constitution under which it was enacted, are permissive and not mandatory. It shall be competent for the courts of this State, and they are hereby authorized,” is the language of the act. The question then remains a question for the courts to determine what is just and equitable ” between the parties. And what is just and equitable between parties is best determined by reference to the principles of equity jurisprudence ; and those principles declare that a contract or conveyance invalid in law will not be enforced by a coiu-t of equity against a party equal in merit and in equity.

The cross-petition will be dismissed and the cause remanded to the district court for further proceedings and judgment.

Scott, Welch, White, and Day, JJ., concurred.  