
    *Jones, &c. v. Porters.
    April, 1740.
    Married Women — Deeds—Privy Acknowledgment.— Where a deed of conveyance by husband and wife does not show on its face the privy acknowledgment of the wife, equity will not supply such defect.
    Bill sets forth: That William Porter and Jane his wife, in right of Jane, was seized in fee of ninety-nine acres of land, and four hundred acres in Middlesex; and agreed to sell the ninety-nine acres to Thomas Jones, plaintiff, John’s father, and the four hundred acres to plaintiff Roger. And, accordingly, by deed dated in 1703, between Porter et ux. and said Thomas Jones, conveyed the said ninety-nine acres to Thomas Jones, in consideration of three thousand nine hundred and sixty pounds of tobacco; and by another deed in 1704, between Porter et ux. and plaintiff Roger, conveyed the four hundred acres to plaintiff Roger, in consideration of one hundred and sixty pounds sterling. And in both deeds Porter and his wife covenant for further assurance; and they also gave a bond to plaintiff Roger for performance of covenants. That Porter et ux. came to court to acknowledge these deeds, but by the mistake or ignorance of the clerk, the acknowledgment is, that the wife relinquished her right of dower, and no notice is taken of the privy examination. That Porter died in 1705, and Jane his wife survived him and died in 1709; leaving issue Francis Porter, her eldest son. And Thomas Jones died many years ago, leaving issue plaintiff, John, his eldest son. And the plaintiff continued in quiet possession till 1732; when Francis Porter, son and heir of Jane, brought an ejectment for recovery, under pretence that his mother was not privately examined, and upon a special verdict had judgment to recover, and threatens to sue out hab. fac. poss. though it is plain upon the face of the deeds, the defendant’s mother intended to convey, and she always acquiesced under it; never pretended she was not privately examined; but on the contrary,in her widowhood, declared she had joined freely and voluntarily in the sale, and was satisfied with it. Francis Porter died pending the ejectment, and the defendants are his heirs at law, and the end of the bill is to have the- defect of the private examination supplied, and the defendants to make a perfect and absolute conveyance; the plaintiffs being purchasers for a valuable consideration. The defendants being infants, by their guardian put in their plea and answer. They plead the act of 1734, which enacts, that where the clerk has not taken notice of the private examination, it shall be taken the feme, was not examined; and for answer say, they were infants at the time of the transactions charged in the bill, and know nothing of them, and hope the court *will not compel them to part with their inheritance legally decended to them, and pray to have the benefit of the judgment at law. The proofs in the cause are very short: only one William Hammet, who says he was in company with' Jane Porter in her widowhood, and asked her for what reason she agreed to sell the land to the Jones’s ? She answered, that she nor her family could not have their healths on it, nor make corn for support of their family. That though Mr. Jones thought he had a good bargain, she wished it might prove so, and was glad the land was sold. There needs be little said to the plea, which seems quite unnecessary. We do not pray that this court should decree that the woman was privately examined, but to have the defect or want of that circumstance supplied. I shall never pretend to say that a court of equity can control an act of parliament or act of assembly, however severe it may be upon particular persons; and we cannot help thinking this act somewhat severe upon us, being made when the suit at law was depending. Wé allow then that the woman was not privately examined; the law has declared so, and we must submit. The question properly before your honors, and the only question is, whether a court of equity will supply a defect of this kind when it appears, as I think it must be allowed to do in this case, that she had agreed to part with her inheritance and was consenting and willing without the coercion of her husband. The consent and agreement appear from the’wife’s executing the deeds; the grant and ail the covenants are in her name as well as the husband’s; she enters into the bond for performance of covenants, and she comes to court in order to acknowledge she acquiesced under the deed; and declares in her widowhood that she had agreed, and was glad the land was sold. These circumstances and proof must be convincing, that the woman was actually consenting and willing to part with her inheritance. Then I say, Whether the want of a private examination may be supplied by a court of equity? Or whether the heirs of the woman shall not be compelled to make a good and legal conveyance, is the question before the court? And I hope I shall have no great difficulty to persuade your honors, that we ought to have such a decree, and that the same is consistent with the constant course of equity in cases of the like nature. This method of the private examination of femes covert, is peculiar to the laws of England, renowned for its great favor and regard to women. It was introduced to preserve and protect the inheritance of the wife from the arbitrary will and disposal of the husband ; that she might not be compelled by his threats or cruelty to part with it against her will. It is nothing more than a particular mode or ceremony instituted for a ^particular purpose, and I humbly conceive that if the end for which this ceremony was introduced can appear to have been answered, that is, if it appear that the wife was not compelled against her will, it is the same thing in natural equity and justice, as if the ceremony had been ever so formally complied with. The law has appropriated particular forms and ceremonies almost to every transfer. Livery is essential to a feoffment, and a surrender to pass a copyhold; and the courts of common law that are tied up by strict and rigid rules, will never dispense with the want of these ceremonies; but it is the peculiar province of equity to supply these defects, especially in favour of a purchaser for a valuable consideration, as we are. It is even a kind of maxim, that equity regards the substance, and not the circumstance of every act. To examine this case by that maxim, does it not appear here that the woman was willing and intended to part with her inheritance? And is not that the substance of the act? The defect is only in circumstance, the want of private examination. The cases in the books are numerous, where equity has supplied the want of livery in a feoffment, and want of a surrender in passing a copyhold, in favor of purchasers, and sometimes even in favor of younger children. I will beg leave to read two short cases for the court’s satisfaction. Thompson v. Atfield, 2 Cha. Rep. 216; Hardham v. Roberts, 1 Vern. 132. These cases may suffice to shew the constant course of equity to be as I have said, viz. to supply defects in conveyances in favor of purchasers. Now if equity will supply the want of livery in a feoffment, and the want of a surrender in passing a copyhold, which ceremonies must be allowed to be as essential, in point of law, to the respective conveyances, as the examination of the wife can be where her inheritance is to pass, I shall beg leave to know what good reason can be given, w’hy a court of equity should not interpose and assist an honest purchaser, as well in the one case as in the other, when it is manifest it was the voluntary intent of the wife to pass her estate? If the motive and reason of the determination be considered, it will appear they have as great weight in the present case as these cited. The true reason, as I conceive, is, because when there appears a fair contract between two parties, and one has paid his money, the vendor has become a kind of trustee in equity for the vendee, and so compellable in equity to make a conveyance as the case may require, that the vendee may have the legal as well as equitable title in him. Now I will beg leave to suppose that Porter and his wife were now alive, and this suit was brought against them instead of the fieirs of the wife, upon the proof that there is in this case, that the wife was consenting *and that the purchase money was paid. I presume there would be no manner of question, but that we should have the decree we now seek for against them, to perfect the conveyance; or that we should enjoy against them and their heirs, nay, though the woman should deny her consent, if it was made evident by proof; and that the purchaser, in confidence of it, had paid the money. Equity would without doubt consider such a proceeding as a fraud, and relieve against it. Now I would fain know what greater equity the heir can have, than the ancestor. The title they derive is under the ancestor, and the same equity that would run against the ancestor must run against the heir. If then it be allowed that we could be relieved against the ancestor, as I think cannot fairly be denied, I do humbly insist that we are entitled to the same relief against the now defendants, her heirs. Objected. No instance of equity relieving in such a case in England. Answered. That it is not strange, because it is a case that never could happen in England. I mean there never could be such a question. The only way for a feme covert to pass her inheritance in England, is by fine and recovery, and though she ought to be privately examined, yet if a fine is levied by the husband, and wife and is not examined, it shall bind her and her heirs. Coke’s reading, s. 7. So that when the fine is once levied the purchaser is secure, and has no occasion to apply to a court of equity, though the feme was not examined; hence, it is plain, this is a question that never could be made in England, and therefore it is no wonder we meet with no cases in point. But I think there are cases where a court of equity has done as much, or more, and instances that must be allowed to be as strong as this; because the ceremony of private examination must have been dispensed with. Baker and Child, 2 Vern. 61. It seems to be mentioned by the court as an established rule, that where a feme covert agreed to join with her husband in making a surrender, or levying a fine, though the husband die before it be done, equity will compel her to perform the agreement. If, where there is only a bare agreement of the wife, equity will compel her to perform it, I must submit if there be not a much stronger reason in this case, where an agreement does not' only appear, but the wife actually executes a conveyance, which happens to be defective only in circumstance. I rely upon our being an honest purchaser for a valuable consideration. Purchasers are ever favored in equity, and the court will often stretch in their favor. Indeed, nothing can be more consistent with natural justice than this, that where a man has paid his money, he should have all the assistance of the law to protect and secure him in the possession of the thing purchased. If this case be considered only under the notion of *an agreement, (and surely the agreement of the wife in this case cannot be controverted,) I humbly conceive this court ought to interpose upon the authority of the case just cited. It is, indeed, the peculiar province of equity to compel the specific performance of an agreement, even where the party may have remedy to recover damages at law; and in this case we can have no effectual remedy at law; the husband is indeed insolvent, and we must entirely lose our purchase money and improvements unless this court will assist us. Fraud, accident and trust, are said to be the three principal things about which a court of equity is conversant. In this case there is fraud on the defendant’s part, that they.would take advantage of the defect in their ancestor’s conveyance. There is accident in two instances, viz. the mis-entry of the clerk and the death of the woman; and there is trust, by the payment of the money and wife’s agreement. This is undoubtedly a case of great compassion. Here is an honest purchaser before the court, and the only objection to his title is a defect in the conveyance, and that only in point of circumstance or ceremony. This defect not attempted to be taken advantage of by the grantor; but the heir, after a quiet possession of thirty years, contests the act of the ancestor acquiesced under by her. The purchaser is without any remedy unless assisted by this court. The relief sought for is against no rule of equity, attended with no inconvenience, against no act of parliament, equitable and reasonable in itself, and agreeable to the courses of equity in similar cases. And if it be so; if the thing desired be no more than natural justice; if it will neither interfere with, nor violate any one established rule of equity, there can neither want argument nor precedent to induce a court of equity to decree for us.
    Reported by Edward Barradall, Esq.
    
      Francis for the defendant.
    The end of this bill is to repeal an act of Assembly. Equity cannot decree against an act of Parliament; there is no instance where a statute requires a particular act for transferring an inheritance, that a court of equity will dispense with that act. If tenant in tail agree to levy a fine, ,and die before it is done, equity will not compel the issue in tail to convej’-. Nothing but the actual levying the fine can take the inheritance from the issue. If a bargain and Sale be made without enrollment, equity will not supply it, nor any circumstance that is required by the statute of frauds. As to wills; it is not the province of equity to relieve against blunders, and to decree in this case for the plaintiff, will be annulling a law made for securing women’s inheritances. The rule of the civil law is, where equity *would annul a law, that law must prevail. To which it was answered, what is desired by the bill, will neither annul the act of Assembly nor be contrary to it. The end of the bill is not to establish the woman’s conveyance, which is allowed to be defective, but to compel a better conveyance to a purchaser for a valuable consideration. This sufficiently obviates all that has been said about decreeing against an act of Parliament. As to the cases put, they are by no means parallel, the issue in tail shall not be compelled to convey, where the fine is not perfected, because he does not come in under the tenant in tail, but by force of the gift in tail. The tenant in tail in his life time, would be compelled to levy a fine if he so agreed, and so here the woman would be compelled to make a better conveyance if she were alive, and the same equity must run against her heirs. As to the case of enrollment, though equity would not decree the deed good if not enrolled, yet it would decree a better conveyance to a purchaser, which is all we ask. As to the statute of frauds the same answer may be given, as to the life of tenant in tail. We do not attempt to set this convej'ance up as good; but desire a better because it is not good : besides surely there is a difference between a purchaser and a devisee. And, though it is said it is not the province of equity to relieve against blunders, yet we see nothing is more common than for equity to relieve against mistakes and defects in conveyances, and especially in favor of honest purchasers.
    
      
      See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 157.
    
    
      
      Author of Maxims of Equity. — Edition 1829.
    
   In this case the bill was dismissed by a great majority of the court.  