
    [Lancaster,
    May 29,1827.]
    
    TATE and Wife against STOOLTZFOOS and others.
    The omission to state in the certificate the acknowledgment of a release by-husband and wife, that the wife was separately examined, is cured by the act of the 3d of April, 1826. That act is constitutional.
    His Honour Judge Huston, before whom this cause was tried at a Circuit Court held for Lancaster county in April, 1827, reported it to be an ejectment brought by Samuel Tate and Jane Mary, his wife, against John Stooltzfoos and others, to recover forty-two acres of land in Leacock township, to which the plaintiffs showed title, in right of Jane Mary the wife.
    The defendants claimed under Janies Hamilton, and as a part of their title exhibited a release executed by James Cochran, and Jane Mary, his wife, (since married to Samuel Tate the plaintiff) to the said James Hamilton for the land in controversy, annexed to which was an acknowledgment, of which the following is a copy.
    
      “ Before me, the subscriber, one of the associate judges of the Court of Common Pleas in and for the county of Lancaster, came James Cochran and Jane Mary, his wife, and acknowledged the within instrument of writing to be their act and deed, and desired that the same might be recorded as such. Witness my hand, &c. 28th May 1796'.”
    The verdict being for the defendants, the plaintiffs moved for a new trial, which the judge refused, whereupon the plaintiffs appealed for the following reasons.
    1st. The court improperly admitted in evidence a release executed by James Cochran and Jane Mary, his wife, (the latter one of the plaintiffs in this suit, and the land being claimed in her right) to James Hamilton his heirs and assigns, which release was not duly acknowledged according to the provisions of the several acts of assembly in such case made and provided.
    2. The court gave it in charge to the jury that the acknowledgment of the release before mentioned, was sufficient under the provisions of the act of the 3d oí April, 1S26, to bar the recovery in this action.
    The act referred to declares, “ That no grant, bargain, sale, feoffment, deed of conveyance, lease, release, or other assurance of any lands, tenements and hereditaments whatsoever, heretofore bona fide made and executed by husband and wife, and acknowledged by them before some judge, justice of the peace, or other officer authorized by law within this state, or an officer in one of the United States, to take such acknowledgment as aforesaid before the 1st day of September next, shall be deemed, held, or adjudged invalid, or defective, or insufficient in law. or avoided or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgment made before such officer as aforesaid in the certificate thereof; but all and every such grant, bargain, sale, feoffment, and deed of conveyance, lease, release or other assurance, so made, executed, and acknowledgéd as aforesaid, shall be as good, valid, and effectual in law, for transferring passing and conveying the estate, right, title and interest of such husband and wife, of, in, and to the lands, tenements, and hereditaments mentioned in the same, as if all the requisites and particulars of such acknowledgment mentioned in the act to which this is supplementary, were particularly set forth in the certificate thereof, or appeared upon the face of the same.”
    Judge Huston having ruled the point without argument and without prejudice, for the purpose of bringing it before the court in bank, sat during the argument.
    
      Rogers and C. Champneys, for the appellants.
    At common law the acts of a feme covert are void, and she can convey- her estate only by a deed acknowledged pursuant to the act of 1770. Here there was no separate examination and the defect not cured by the act of the 3d of April,1826. Pamph. Laws of 1826,p.187 ; because the case is not within it. That act was passed in consequence of certain decisions of this court, but in every case which had been decided, there was a separate examination. The act was intended to cure only an informality in a circumstance or particular omission, not the total want of compliance with a substantial provision of the existing acts: in this case there is no such certificate as is contemplated- by the act of 1770, under which the separate examination is of the essence of the acknowledgment.
    But the act of 1826 is unconstitutional and void. At the passing of that act the deed of the feme being absolutely void, could not be set up by the legislature without making a conveyance for her,which was not competent for them to do. When that act passed the title was in the feme, or those who claim under her; and that title could not be divested by any subsequent legislative act. Whether she were in possession, or it had passed from her under a void conveyance, can make no difference. Vanhorne v. Dorrance, 2 Dall. 304. There is no disguising the effect of this act, which transfers the property of A. to B. without his consent, and without making compensation. This is precisely the case of Vanhorn and Dorrance. To enable the legislature to exercise an arbitrary discretion over vested rights, would vest in them a tremendous power which it cannot be supposed the constitution ever meant to give them.
    The court did not hear the counsel for the appellees.
   The opinion of the court was delivered by

Duncan, J.

This was an appeal from the decision of Mr. Justice Huston, at a Circuit Court held at Lancaster, April, 1827, admitting in evidence the release of James Cochran and Jane Mary, his wife, on an acknowledgment of the instrument by husband and wife, of the 28th of May, 1796, of the wife’s real estate in the following words: — “ James Cochran and Jane Mary, his wife, came before me, the subscriber, one of the associate judges of the Court of Common Pleas, in and for the county of Lancaster, and acknowledged the within .instrument fo be their act and deed, and desired that the same might be recorded as such.” And also in instructing the jury, that the release thus acknowledged was sufficient, under the provisions of the act of the 3d of April, 1826, to bar all claim to recovery in right of the wife.

It is contended, first, that this defective acknowledgment is not cured by that act. While I agree that the retrospective powers of this act are to be construed strictly, and that every law of this nature is to be construed with strictness, and not to be extended by equity beyond the words of the statute; yet I cannot agree to a construction that would defeat the end and object of the law, and I must confess it appears to me.that in words as clear as our language affords, this provision embraces every defect, cures every invalidity in the certificate of acknowledgment, where the conveyance is a bona fide one. The purview, the preamble, and the enacting clause, conduce to prove that it was the intention of the legislature that no acknowledgment should be held invalid, defective, or insufficient in law, by reason of any omission, formal or substantial, in not setting forth the particulars of an acknowledgment in the certificate. And my opinion is, that if the wife does acknowledge the conveyance to be her act and deed, before an officer authorized by law to take it, this acknowledgment is-sufficient, though it omit all the particulars required under the former act. It is impossible to make an enactment more expressive and comprehensive; for the naked acknowledgment is made as good, valid, and effective in law, for transferring the estate, as if all the requisites and particulars of the acknowledgment recited in the former aet had been particularly set forth in the certificate thereof, or appeared upon the face of the same. It is here to be observed, that this aet only alters defective acknowledgments before the 1st of September, 1826.

It is next objected, that this act is unconstitutional. The general rule is, that all laws are in their nature prospective, yet this does not prohibit the legislature from passing some laws which. have a retrospective operation. Where the laws do not impair the obligation of contracts; or are not ex post facto, (ex post facto relate to crimes only,) every confirmatory act is in its nature retrospective; and, in the opinion of the court delivered in Underwood v. Lilly, (10 Serg. & Rawle, 101,) it is stated, that confirming acts are not uncommon. Deeds acknowledged defectively by femes covert, proceedings and judgments of commissioners, and justices of the peace, who were not commissioned, agreeably to the constitution, or when their power ceased on the division of counties until a new appointment. Retrospective laws, which only vary the remedies, divest no right, but merely cure a defect in proceedings otherwise fair, — the omission of formalities which do not diminish existing obligations, contrary to their situation when entered into. These, and several like acts, are clearly constitutional.”

I have seen no reason to change that opinion. I will just add, that it is an abuse of terms to contend that this is an act divesting vested rights. Such acts would be odious and unjust, as well as unconstitutional; for it is not intended by a vested right, that it shall be a right to do wrong; to take advantage of a mere slip in form, where the transaction is a bona fide one; and to avoid an honest conveyance fairly acknowledged, in the hands of an innocent purchaser. Statutes made to confirm acts by public officers which would have been void for some informality, have neVer been questioned on constitutional grounds. See Bond v. Appleton, 8 Mass. Bep. 473.

It is well that this question has been brought up so early after passing the act, to put the matter at rest, and silence the speculations, opinions, and doubts expressed even by some men in the profession, and to relieve from apprehension those bona fide purchasers who might otherwise have been affected by informal certificates of acknowledgments, and that the hundreds, I might say thousands, intended to be relieved from danger for this one cause, may now repose in peace under this law confirming their titles— eio man can make them afraid.

It is the opinion of the court that the appeal be dismissed, and

Judgment affirmed.

Rogers, J., having been counsel in the cause, took no part in the decision.  