
    * Lessee of J. C. Foster v. William Dennison. and Lessee of J. C. Foster v. Comm’rs of Hamilton Co. and others.
    A deed may be held to operate in any form of conveyance, that will carry into execution the lawful objects of the makers. Whether the/orn be feoffment, giant, bargain and sale, or release, the deed may enure as either.
    An instrument by which the parties acknowledge payment of the consideration, “ obligating the grantors to forever quit claim land,” sealed, acknowledged, recorded, and possession released to the grantee, and held for thirty five years, is a conveyance.
    A deed made in Massachusetts in 1085, by husband and wife, and acknowledged by the wife only, passes the wife’s interest in land in Ohio, because it has that effect by the law of Massachusetts.
    An acknowledgement of a deed is not a part of the deed itself: it is required only as evidence of execution, or as authority for registration. In Ohio, it is required in doeds executed by married women, as evidence of her sealing and of freedom from constraint, and is for their protection.
    A husband is competent to mak^partition of the wife’s real estate, but the right he acquires by the proceeding in partition, does not extinguish her right, which survives to her or her heirs.
    A deed by a husband, in which the wife is only named in the testatum clauses relinquishing her dower, though duly executed and acknowledged, operates only upon her dower, and will not pass any separate interest of the wife in the estate.
    Ejectments. From Hamilton. The first is for one eighth of lot 92, and the second for a part of out-lot, 20, in Cincinnati. The plaintiff’s title in both these cases is -the same, and the title of the defendants depends upon the same facts, so the two could be, conveniently., and were considered together.
    In 1795, the premises were conveyed by J. C. Symmes to Seth Cutter, Abigail Cutter, Mary Cutter, Rachael Cutter, Martha Cutter, Hannah Cutter, Hepsibeth Cutter and Abigail Woodward, heirs of Seth Cutter, deceased. The plaintiff holds the interest of Hannah, Mary, and Martha, and Abigail Woodward, and is one of the heirs to Hepsibeth and Hannah. He recovered the original eighth of Hepsibeth, in the suit in this court reported 8 Ohio, 87. He is entitled to judgments for the remainder in these suits, unless the rights have been transferred by the two following deeds : 1. A deed made by Hannah, then wife of Isaac Wetherbe, Rachael, then wife of William Dixon, with their several husbands, and Martha then a widow of Henry Gardner, of which a copy follows :
    
      “ Boston, Nov. 20th, 1804.
    “Know all men by these presents, that whereas John Cutter of Cincinnati, territory north west of the river Ohio, deceased, who died intestate, having left two lots of land, lying and being in said town, *and numbered on the plat of said town, 92 and 20 ; viz. one half acre lot No. 92. and one five acre lot No. 20; and whereas, I, Isaac Wetherbe, of Boston, Massachusetts, and Hannah my wife, and I William Dixon, yeoman,and Rachael my wife, of Charleston, together with Martha Gardner, widow, of Medford, but all of the state of Massachusetts, being three of the lawful heirs of the above mentioned John Cutter, deceased, do for ourselves, our heirs, executors, administrators and assigns, severally agree, for the valuable consideration of twenty-five dollars, to each of us in hand well and truly paid, before the ensealing and delivery hereof, by William Woodward of Cincinnati, we do by these presents oblige and obligate ourselves unto him the said Woodward, as well as our heirs and administrators, to resign, give np, and forever quit claim to him the said Woodward, and his heirs, all our right and claim in the above described lot, together with all-the privileges and appurtenances, thereto belonging. Given under our hands and seals.”
    This instrument is duly sealed, and attested, and recorded on the 25th January, 1805. It is acknowledged by Isaac Wetherbe, William Dixon, and Martha Gardner, only.
    2. A deed from William Woodward and Samuel Foster, given in 1808, and duly executed, in the testatum clause of which Mrs. Woodward releases her dower to the grantee, M’Clelland, under whom Dennison holds lot 92.
    The objections taken are, 1. That the first deed is a Contract only, not a conveyance. 2. That the estates of the wives do not pass by it without acknowledgement. 3. That the last deed affects the dower only, not the remainder of the wife.
    Y. Worthington, J. O. Wright, and T. Walker, for plaintiff.
    1. The instrument of the 20th November, 1804, is only a contract for a deed, not a deed. If the intention be clear that the parties designed the deed as a present grant, it should be held a .conveyance, otherwise it is to be held a mere contract. 2 Wend. 433; 5 Wend. 26; 12 Wend. 156; 3 Johns, 419, 47, 389, 424; 5 Johns, 74; 10 Johns, 336; 4 Cruise Dig. 69. Where there is a present demise and a covenant for a future one, the paper is held a lease; but if there are no apt words of present demise, but provision for executing a lease, then it is held a mere contract for a lease. 10 Johns. 337; 1 T. R. 735 ; 2 T. R. 739 ; 5 T. R. 163; 6 East. 530 ; 2 W. Blk. 973; 3 Ohio, 116. A deed to convey the estate of a married woman, must be executed according to law, and show her ^intention to convey absolutely. 7 Ohio, pt. 1, 195; 9 Mass. 218; 13 Mass. 223; 3 Mason, 347. Judging of this paper, independent of legal decisions, we ■should not hesitate to pronounce it a simple agreement to convey. No language can be better adapted to express such intention.
    2. The deed is not executed according to the laws of Ohio, to pass •a legal title, except against Wetherbe and Dixon, for their curtesyThe law in force at the time of its execution, viz., the act of 20th ■January,. 1802, 1 Ch. St. 342, requires deeds thereafter executed, to be acknowledged or proven according to the laws of Ohio, or of the place where executed. This deed has never been acknowledged or proven by Mrs. Dixon or Mrs. Wetherbe, and has but one subscribing witness. «Contracts by married women are void unless made in conformity with the statute. 6 Ohio, 335 ; 6 Wend, 9 ; Griff. L. Reg. 495 ; 2 Shep. Touch. 114; 5 Mass. 554, 463, 438 ; 7 Mass. 20, 14, 18 ; 4 Mass. 541; 6 Pick. 87 ; 9 Mass. 143 ; 8 Pick. 536.
    N. Wright, B. Storer, and 0. Pox, for Dennison.
    1. Whether the paper of the 20th November, 1804, is to be-regarded a deed, or a mere contract for one, depends upon the intention of the parties, apparent on the instrument. 12 Wend. 156 ; 2 Wend. 439; 3 Johns. 47; 5 Johns. 76 ; 1 Mass. 227. Judging by this rule, no one can suppose the parties expected any other deed. They acknowledge the money paid, and bind themselves, their heirs, etc., to resign, give up, and forever quit claim to Woodward, all their right and claim, etc., to the lots and the appurtenances. The parties evidently intended, to give up and quit claim forever, all their right, &e., in the lots, and the ■instrument seems sufficient to carry the design into effect.
    2. As to the intention of Mrs. Wetherbe and Mrs. Dixon. Suppose ■the paper a contract, and not as such binding upon married women, still in law, after thirty-five years, the contractee in quiet possession, -it is a clear unequivocal case, for the presumption of a deed. 6 Bin. 419.
    3. This deed executed according to the law of Massachusetts, where -it was made, binds all the parties to it. 9 Mass. 172, 220; 5 Mass. 463 ; 7 Mass. 20 ; 6 Pick. 87; 8 Pick. 32, 536. The abilities and ■disabilities of married women are regulated by the law of their domdeil, which protects their persons. The form of legal t ties of real estate is regulated by the lex loci rei sitae, but *the capacity of the married woman, and the forms which shall protect her incapacity from abuse, are fixed by the law of her domicil. Hence it is not important that our own statute shall have been complied with in executing this paper, as the form of execution to pass the wife’s interest in. the land conforms to the law of Massachusetts. Story Conft. of L. 127; 8 Pick. 32, 536.
    4. But this deed is clearly within our statute. The act of 1802, intends to make valid, deeds executed in other states according to their law. This appears both from the object and language. A deed executed and acknowledged as this, in Massachusetts by a married woman, passes her interest in land, and as our law adopts the foreign execution and foreign acknowledgement both, the deed is good here.
    5. The shares claimed if not generally barred, are so as to lot 92, by partition in pais, evidenced by the conveyances and long continued occupancy by Dennison; and as to Mrs. Woodward’s share she united in the deed, and with her husband has ever since continued to occupy other parts of the land, and she must be held to this partition unless relieved from it in equity.
    D. Van Matee, for the county.
   By the Court,

Lane, 0. J.

There is no doubt that Woodward expected to acquire the interest of Martha, Baehael, and Hannah, in the lots, by the deed of 1804. It is sometimes a nice matter to discriminate between an agreement to convey, and a present conveyance : but whore the parties intend to pass the title, without any further act, the law will endeavor so to interpret their proceedings as to work this effect. In this transaction the contract of sale is made, the consideration paid, and a deed is given, sealed, acknowledged and recorded, and possession of the land held under it, for more than thirty years ; by which, the parties evidently meant to pass the title. Now a deed may be held to operate in any form of conveyance that will carry into execution the lawful objects of the makers. Whether the form be feoffment, grant, bargain and sale, or release, the deed may enure as either. 6 Mass. 32 ; 4 Kent C. 2d ed. 403. An instrument in the forms requisite for a deed, if it show a consideration paid, and an immediate contract to convey, takes effect in Massachusetts, as a deed of bargain and sale, because it raises a use, which is executed by the statute of uses. 3 Mass. 573 ; 6 Mass. 24; 7 Mass. 189. This deed, ti' erefore, though in form a ^release, is a substantive bargain and sale, and operates as an immediate conveyance.

It is however claimed, that the deed is inoperative to pass the wives’ estate, because it was acknowledged by the husbands only. The acknowledgement of a deed is not a part of the deed itself; it is required by law, either as evidence of execution, or as authority for registration. In deeds executed by the wife in our state, the law makes the acknowledgement the necessary evidence of the fact of sealing, and of freedom from constraint. This ceremony is adopted as a protection to married women ; but the legislature has not thought fit-to require the same solemnities in deeds executed abroad, but merely exacts a compliance with the forms required by the law of the place of execution. 1 Ch. St. 485, § 3. By the laws of Massachusetts, where these parties resided, and where this conveyance was made, we-find a deed signed by husband and wife, but acknowledged by the husband only, is an effectual transfer of the wife’s property. 6 Mass. 541; 5 Mass. 438. It seems plain, therefore, that the grantors have complied with the Massachusetts forms, sufficiently to give effect to their deed.

The rights, therefore, of Hannah, Rachael and Martha, having-passed to Woodward by the deed of the 20th Nov. 1804, before their conveyance to the lessor of the plaintiff, it only remains to examine if he acquired any title from Abigail Woodward and Ilepsibeth Foster. They were married women, parties with their husbands in the petition-, for partition. In the case heretofore decided,.8 Ohio, 87, we held their interests were not extinguished by these proceedings, but were-restored to them or their heirs, after their husbands’ deaths. They are now held by the lessor of the plaintiff, unless that portion in lot 92, was conveyed to M’Clelland. His deed was made in 1808, by Woodward and Samuel Foster, conveying lot 92. No mention of the wives is made in the granting part or in the covenants; but in the: testatum clause, the grantors, together with their wives (each of whom, relinquishes her right of dower) set their names and seals, etc., and the instrument is duly executed by all. At the time of this conveyance, each husband held half of the lot, three-eighths in his own right,, and one-eighth in right of his wife ; and the rights of the wives were-likewise two-fold, viz. a vested remainder in an eighth, and a contingent dower interest in three-eighths. The words of the deed apply to-the dower only, and it is not for us to extend them beyond their plain; .•meaning. The recovery of the plaintiff is, therefore, limited to the ■two-eighths of Mrs. Woodward and Mrs. Foster.

Judgment for plaintiffs.  