
    *Eleanor Connell v. Samuel Connell.
    To bar tbe dower of a wife by a deed, executed under the act of 1805, it is necessary that the certificate of acknowledgment should show the wife was made acquainted with its contents.
    This cause was adjourned for decision, in the court’in bank, from the county of Belmont. It was a bill in chancery, in which the complainant claimed dower of the defendant in real estate sold by her husband, now deceased, in his lifetime, and conveyed to the-defendant. The matter reserved arose upon the form of acknowledgment in a deed. This acknowledgment was in these words :
    “Personally came John Connell and Eleanor his wife, before me, John Barrett, one of the justices of the peace for said county, and acknowledged the within indenture to be their voluntary act and deed, for the purposes therein expressed; the said Eleanor, when being privately examined, separate and apart from her hus* band, acknowledged that she signed the same of her own free will, without any compulsion from her husband, and so freely relinquished her right of dower.”
    Hubbard and Cowen for complainants:
    The question in this case is, whether the certificate of the justice on the back of the deed on file states all the facts relative to the .acknowledgment, and knowledge of the contents of the deed, by the complainant that must be proved to bar dower.
    As to the argument of counsel, based upon the supposition that there may be an equitable right in the defendant to the dower interest, the complainant capable of being enforced ,in a court of -equity without a legal right, good at law, it is believed that it needs no argument to illustrate its fallacy. A bill in ohancery to •compel a widow to the specific performance of an executory contract made while she was feme covert, would be an anomaly in the United States, and in that country from which we have derived our principal notions of law and equity.
    When this deed was executed, and at the date of the certificate of acknowledgment, the act for the execution and acknowledgment of ■deeds of February 14, 1805, was in force. See 8 Ohio L. 398. By 854] that act, if the principle that the law must *be substantially complied with to bar dower, prevails to constitute a good and operative relinquishment of dower by a feme covert, the feme and her husband must seal, deliver, and execute a deed for the premises, and after such execution appear before a judge, etc., and acknowledge the same — that is, the sealing, delivering, and execution : and the officer taking the acknowledgment must read or otherwise make known to the wife the full contents of the deed, and examine her separate and apart from her husband, and upon such separate examination she must declare that she did voluntarily, etc., seal, and as her act and deed deliver, etc. And of these acts of tho officer and declarations of the grantor there must be the official certificate of the officer on the back of the deed.
    We take for granted in this case that nothing is competent to prove any of these facts hut the justice’s certificate, and that those facts which that certificate does not prove never had an existence in judical contemplation.
    The certificate in this case proves that the husband and wife, -when*present together, acknowledged the deed, by tho style of an indenture, to be their voluntary act and deed for the purpose in the deed expressed, and that the wife, on her separate examinaation, acknowledged that she signed the deed freely, and so freely relinquished her right of dower.
    It does not prove that the justice read or otherwise made known to .her the full contents of the deed. It does not prove that on her separate examination she declared or acknowledged that she sealed or that she delivered the deed. If the certificate does not prove either of these facts, it is most clear that there has been no operative relinquishment of dower.
    It is said that the wife acknowledged the deed to be her indenture — that this proves the acknowledgment of the sealing. But this declaration was not when she was separate from, but present, and jointly acting with her husband.
    It is said that the possession of the deed by grantee proves' the delivery. This may be a good answer to the fancied objection that there has been no delivery. But it is no answer to the real objection that there is no evidence that the wife, upon her separate examination, declared that she freely delivered it as her act and deed. The fact of a delivery of the deed is not sufficient. The law requires that the wife, on her separate examination, shall declare that the act of delivery, which must have been previously performed, was on her part free and voluntary.
    *Again it is urged, that the acknowledgment that she “ so [355 freely relinquished her right of dower,” proves the delivery. The principle contended for is, that a declaration of what is intended by an act determines the legal effect and operation of the act— that to declare, that by signing without sealing or delivery, you mean to convey a legal title to real estate is, with the signing, equivalent to the sealing and delivery. This principle has not been and never can be recognized as law, and it is believed that unless it is, the position mentioned can not prevail.
    The law requires that the wife should declare that she freely signed and delivered the deed. The proof to this point is, that she declared that she signed it, and so (thus, in this manner, by such signing) freely relinquished her right of dower. This only proves that she acknowledged the signing of the deed — it proves no other act; wbat else is said is of the effect and consequence of that act, what she by signing did.
    What is stated about contracts making the law, can have no application to this case; nor can we suppose that if one thousand other widows have not relinquished their right of dower, or have relinquished it, that this court will, instead of administering the law as it is, assume the business of legislation, and make a new or alter the old law.
    In the case of Brown v. Farran, 3 Ohio, 154, Judge Burnet, in delivering the opinion of the court, says upon the question, how far the magistrate may deviate from the words of the act, that “ his certificate must contain the substance of every thing required by the law, no substantial part of the provision can be dispensed with.” He further says, as to the rules to be observed in construing the certificate of acknowledgment, that “ it must appear expressly, or by irresistible inference from the language of the certificate, that the wife was acquainted with the nature of the deed, that she was examined apart from her husband, that she acknowledged the deed, and admitted that it was her voluntary act, in such terms as necessarily excluded the influence of fear or coercion.”
    It is difficult to perceive any objection that could be made to the principle of law, and the rule of construction here given. "What the law has made necessary to be done, must be proved to be done; and where the law has made an official certificate the necessary evidence of a fact, no other evidence can be received, and no presumptions can arise to supply any defect in the evidence. 356] *It certainly does not appear expressly, that the substance of what the law requires has been done. Does it appear by irresistible inference, that the complainant was acquainted with the nature of the deed, that when examined apart she acknowledged the deed, or the sealing and delivery ? Not only this, but it might be unanswerably asked, if, by the most liberal construction of the words of this certificate, it can be forced to convey any such facts ?
    The question is put by counsel, will the court under the circumstances say, that the sealing was obtained by fraud and violence? Ve answer that there is no evidence before the court to prove that the complainant ever put her seal to the deed. Nothing will prove this but the official certificate of the justice. Without it, so far as the complainant is concerned, it is as a blank paper.
    George W. Thompson, for defendant:
    Dower is an equitable right, and in this state is only enforcibla in equity, and -whatever is an equitable bar should be a good defense. The execution of a deed, and the acknowledgment of the relinquishment of dower, although it may be informal, bear upon the face of them the evidence that the full consideration has been paid for all rights and claims pertaining to the land. In this state the doctrine has been held by some that the statute regulating the taking of these acknowledgments is directory and must be complied with. We do not see any difference between them and the execution of any other deed. And if a deed in this state has been executed without a due reference to the directory provisions of the statute, still does not that deed give the vendee such a right that he can enforce in equity a specfic performance of the contract according to the original intention of the parties. What is the difference here: the husband has received the full consideration for the land, and it has passed to the benefit and use of his family, and may have been invested in other property, out of which the widow is now enjoying dower. The court must be satisfied of certain facts, and although those-facts aremot Certified in a proper and statutory manner, still, if they are so certified as to show a fair and full intention to relinquish dower, we presume it is all that the law requires, and we are certain it is all equity can demand.
    *But supposing the case of Brown v. Farran, 3 Ohio, 154, [357 narrows us down to a more strict and technical construction of the statute, we deem that we are within the equity of that decision. The certificate bears upon the face of it the declaration, of those facts which are necessary for our defense. ' It contains-' evidence that she knew the character of the instrument which she signed, and the consequences to herself which were to flow from, her act. She acknowledged it to be an indenture (the highest instrument known to the law which an individual can execute^ and an indenture can not be perfect until it is written out, signed, and sealed. And an acknowledgment “ of the within indenture to be her voluntary act and deed for the purposes therein expressed,” is an acknowledgment within its terms of the signing and sealing. And supposing that this would be stretching the meaning of the terms, “indenture,” and “act and deed,” beyond their legitimate use, will the court say, that although the signing; was fairly obtained, and testified to by witnesses and the justice! of the peace who took the acknowledgment, still that the sealing was obtained by fraud and violence.
    It is objected there is no delivery. It is a legal presumption that when‘a deed is executed, an'd the possession of the deed is in the vendee, that it is not an escrow, but that it is operative for all the purposes intended. It is one of those facts which speaks more conclusively, than any other form of words can do. But is there not on the face of this acknowledgment the certificate of a sufficient delivery — “and so freely relinquished her right of dower?” The language here is very broad, and taking the word “relinquish ” in its technical and proper sense, or in its more popular meaning, it will embrace the “delivery,” as there could be no relinquishment of her dower without it. Would it not be doing extreme violence to the justice of this cause to say, no delivery had taken place, when from the rules of law and the language of the certificate, no other presumption is properly inferable?
    It may be true that “the law makes the contract,” but it is also true that “contracts sometimes make the law.” And when there has been an inveterate use, the court will respect the rights and immunities which have grown up under it. And I think we may safely say, that considering the time when this acknowledgment ■was taken (1812), it is unusually full and correct..
   *Lane, judge,

delivered the opinion of the court:

The certificate of acknowledgment, in this case, does not state ¡that the wife, the present complainant, was made acquainted with ¡the contents of the deed; nor does it state that she sealed and deilivered it, unless this can be gathered, by implication, from the terms “she acknowledged the within indenture to be her act and -deed,” which acknowledgment she is certified to have made conjointly with her husband.

The statute of 1805 regulates the acknowledgment of this deed. A construction was given to this statute, in the case of Brown v. Farran, 3 Ohio, 140, referred to by the counsel on both sides in this ca^e. In that case, it is held that the certificate of acknowledgment must show, either in express terms, or by necessary implication, a compliance with every substantial requisition of law. Before the rights of the wife to lands are affected, section 2 requires. 1. A separate examination, 2. That the wife be made acquainted with the full contents of the deed. 3. An aeknowledgment that she voluntarily sealed and delivered it. In this ease, we are not compelled to decide, whether the facts of sealing and delivery are shown, either directly, or by “irresistible inference ” from the acknowledgment of the indenture as her deed. It is sufficient for present purposes that the certificate of acknowledgment does not show that the contents of the deed were made known to the wife. This is a fatal omission, which prevents the acknowledgment from barring the complainant’s right to recover.

Decree for complainant.  