
    Ware v. Cary.
    [April Term, 1800.]
    Husband and Wile —Conveyance to Husband — Consideration.-Deed in which an estate for life is given the husband, made by husband and wife of the wifes lands to a trustee, will pass the estate although no consideration be expressed therein.— Particularly if the verdict finds that it was for the purpose of settling it in the wifes family.
    In ejectment brought by Ware against Cary in the District Court the jury found the following special verdict. “We find that on the 19th day of June 1744 Judith Ware purchased of Thomas Walton 200 acres of land lying on the fourth side of the Flu-vanna river opposite the seven Islands, for forty pounds, by a deed of bargain and sale, indented and recorded in Goochland County Court on the 21st of August 1744, with a memorandum of livery and seizen thereon endorsed which appears in these words, this indenture, &c. (setting it forth).
    *We find that the said land then lay in the countv of Goochland, but now in the county of Buckingham, within the jurisdiction of this court, and is the same land now in question :
    We find, that, after the deed aforesaid, the said Judith Ware intermarried with Samuel Jordan. We find that the said Samuel Jordan and Judith his wife in order to settle in the family of the said Judith the said land, by their indenture of feoffment bearing date the 14th day of March 1781, conveyed the said land to John Nicholas his heirs and assigns in trust, for the purposes in the said deed expressed, which said deed of feoffment is in these words.
    This indenture made this fourteenth day of March in the year of our Bord one thousand seven hundred and eighty one between Samuel Jordan of the county of Buckingham gentleman and Judith his wife of the one part and John Nicholas of the other part, whereas the said Samuel Jordan and the said Judith are seized in. right ,of the said Judith of and in one certain tract of land conveyed by Thomas Walton, to her the said Judith when sold by a certain deed recorded in the County Court of Goochland, containing two hundred acres more or less, lying and being on the fourth side of Flu-vanna river in Buckingham county formerly Goochland, joining the lands of John Nicholas formerly the land of George Nicholas. This indenture therefore witnesseth that for settling the said land and to such uses and in such manner as is hereafter in these presents expressed and declared and for enabling the said Judith to dispose of and grant the said land and premises in such manner and form, and according to the power and authority to her hereafter in these presents reserved, and for other good causes and considerations them the said Samuel Jordan and Judith his wife thereunto moving, they the said Samuel Jordan and Judith his wife do give, grant, alien, enfeqff and confirm unto the said John
    Nicholas his heirs *and assigns the said tract of land and premises with the appurtenances thereunto belonging, To have and to hold .the said tract of land and premises with the appurtenances unto the said John Nicholas his heirs and assigns forever, to the uses and purposes hereafter in these presents expressed and declared; that 'is to say, to the use of the said Samuel Jordan and Judith his wife for and during the term .of the natural lives of the said Samuel and Judith without impeachment of waste and after the death of the' said Samuel Jordan and Judith his wife to the use and behoof of such person as the said Judith by her last will and testament in writing by her to be subscribed with her own hand and sealed with her seal in presence of two or more witnesses, or by any other writing to be by her subscribed and sealed in presence of three or more witnesses, shall nominate declare and appoint, upon this hope, trust and confidence that the said John Nicholas his heirs and assigns after the ending of the estate of the said Samuel Jordan and Judith his wife of and in the said land and premises to them above limited, make such conveyance and dispose of the same to such person in such manner as the .said Judith by her last will and testament, or by any other writing as aforesaid shall •appoint, and for and in default of such nomination or appointment, then that the said John Nicholas his heirs and assigns shall convey and assure the said land and premises to the right heirs of the said Judith forever. In witness whereof the said Samuel Jordan and Judith his wife have hereunto set their hands and seals the day and year above written.
    Samuel Jordan. [B. S.]
    Judith Jordan. [B. S.]
    In presence of
    Charles Rose,
    Henry Bell,
    Charles May,
    John Nicholas, junr.
    '^With a certificate of the record of the said deed in the County Court of Buckingham, which is in these words:
    At a court held for Buckingham county the 9th day of April 1781.
    This indenture was proved by the oath of Henry Bell one of the witnesses thereto, and at another court held for the said county the 8th day of October 1781. This indenture was further proved by the oath of John Nicholas junior another witness thereto, and at another court held for the said county the 12th day of August 1782. This indenture on the motion of John Nicholas was ordered to be recorded.
    (Teste,) Rolfe Eldridge, c. c.
    A copy, teste, Rolfe Bldridge, c. c.
    We find that as the said Judith was under coverture a commission not directed to any person by name on the 14th of March 1781, was issued by the clerk of Buckingham in these words. Buckingham sc. — The Commonwealth of Virginia to gentlemen greeting: Whereas Samuel Jordan and Judith his wife by their certain indenture of feoffment bearing date the 14th day of March 1781, and hereto annexed, have sold and conveyed unto John Nicholas the fee simple estate of and in a certain tract or parcel of land, containing two hundred acres of land more or less lying and being in the county of Buckingham on the south side of Fluvanna river, and whereas the said Judith cannot conveniently travel to the said County Court of Buckingham to make acknowledgment of the said conveyance, you or any two of you are therefore commanded to go to the said Judith and receive her acknowledgment of the same, and examine her privily and apart from the said Samuel Jordan her husband, whether she doth the same freely and voluntarily without the persuasions or threats of her said husband, and whether she be willing that the same should be recorded *in our said County Court, and when you have received her acknowledgment and examined her as aforesaid that you distinctly and plainly certify the same to the said County Court under your hands and seals sending then there the said indenture and this writ. Witness Rolfe Eldridge clerk of our said court at the courthouse the 14th day of March in the 5th year of the Commonwealth.
    Rolfe Eldridge.
    And returned executed by Charles May and Henry Bell who were Justices of the peace at that time for the said county of Buckingham, and that a certificate of the execution of the said commission is in these words. Buckingham county to wit: By virtue of this commission hereunto annexed, we the subscribers have personally applied to the within named Judith Jordan, and have examined her privately and apart from the said Samuel Jordan her husband, do certify that she declares that she freely and voluntarily acknowledges the conveyances contained in the said indenture, which is hereto annexed, without the threats or persuasions of her husband, and that she is willing and desirous the same should be recorded in the County Court of Buckingham. Given under our hands and seals this fourteenth day of March one thousand seven hundred and eighty one, in the 5th year of the Commonwealth.
    Charles May. [E. S.]
    Henry Bell. [E. S.]
    Which with the commission appears to have been recorded in the said County Court by a certificate in these words.
    At a court held for Buckingham county the 12th day of August 1782. This commission and the certificate of the execution thereof was returned and ordered to be recorded. — Teste, Rolfe Eldridge, c. c. — ■ A copy, teste, Rolfe Eldridge, c.c.
    *We find that Samuel Jordan and Judith his wife by a deed poll dated the day of 1785, did appoint that the said John Nicholas his heirs and assigns should convey the said lands to Robert Cary and Judith his wife, and to the heirs of the said Judith in fee simple, which deed is in these words.
    To all to whom these presents shall come we Samuel Jordan and Judith Jordan send greeting: Know ye that by virtue of the powers received to me the said Judith, by a certain indenture bearing date the fourteenth day of March one thousand seven hundred and eighty one between the said Samuel Jordan and myself of the one part and John Nicholas of the other part for conveying two hundred acres of land in the county of Buckingham in trust for such uses as I should declare and appoint, as by the said indenture may appear, and for the affection which I bear to my granddaughter Judith Cary wife of Robert Cary, I the said Judith Jordan with the consent of the said Samuel Jordan do nominate declare and appoint that the use of the said two hundred acres of land shall be to the said Robert Cary and Judith his wife, and to the heirs of the said Judith Cary forever, and for that purpose, do appoint that the said John Nicholas his heirs and assigns do convey the said land and premises to the said Robert Cary and Judith his wife in manner aforesaid, agreeable to the indenture aforesaid. In witness whereof we have hereunto set our hands and seals the day of one thousand seven hundred and eighty five.
    Samuel Jordan. [L. S.]
    Judith Jordan. [E. S.J
    Sealed and delivered in presence of Edward Winston. — William Sio Crawford. —Charles Rose. — Thomas Miller. — Samuel I. Cabell. — William Honley.
    *And which was recorded in the said County Court as appears by a certificate in these words.
    At a Court held for Buckingham county the 15th day of March 1785, this indenture was proved by the oaths of Edward Winston and Thomas Miller two of the witnesses thereto, and at another Court held for the said County 11th day of October 1790, this indenture was proved by the oath of William Honley another witness thereto and ordered to be recorded.
    (Teste,) Rolfe Eldridge, c. c.
    A copy, teste, Rolfe Eldridge c. c.
    We find that while the said Judith was under coverture with the said Samuel Jordan she after reciting the said second indenture of feoffment devised the said land to the said Judith Cary and her heirs and directed the said John Nicholas to convey it accordingly by her will: We find that the said Judith Cary was the granddaughter of the said Judith Jordan, and that the said Judith Cary died in the year 1788, survived by only one child a daughter from her body issuing, who died an infant of tender years in the year 1788, and that the defendant Robert Cary is the heir at law of the said infant daughter. We find that the said Judith Jordan died September or October 1785, and that her husband the said Samuel Jordan died in the year 1789. We find that the said Samuel and Judith Jordan from the time of their marriage to the time of their respective deaths were in possession of the said land.
    We find that the defendant at this time is in possession of the said land. We find the lease entry and ouster in the declaration mentioned. We find that John Ware the lessor of the plaintiff is the only son and heir at law of the said Judith Jordan and if upon the whole of these facts the law be for the plaintiff, we find for the plaintiff the lands in the declaration mentioned, and assess *the plaintiffs damages to one penny. But if the law be for the defendant then we find for the defendant.”
    The District Court gave judgment in favor of the defendant Cary; and Ware appealed to this Court.
    Wickham for the appellant.
    The deed from Judith Jordan and her husband to Nicholas purports to be a feoffment; and as there is no livery of seizen, it passed no estate. Co. Eit. 56, (b). Nor can it be taken as a conveyance upon the statute; because the parties appear to have clearly intended, that it should operate, as a common law conveyance. But it cannot operate as a statutory conveyance, for another reason; namely because there is not a sufficient consideration, there being neither money or blood expressed. Eor the finding of the jury that the deed was made, for the purpose of settling it in her family, does not supply the want of a consideration; especially as the plaintiff (who is the son) was as near and nearer in blood than the defendants wife, who was onty the granddaughter of Mrs. Jordan. But another objection to the deed is, that the wife was not privily examined, as the act of 1748, requires. Eor the commission issued in blank, instead of being directed to Justices ; and it does not appear, that it was sent to the county, in which Mrs. Jordan resided. But if there was a sufficient consideration and the wife had duly relinquished, still the defendants title would have been defective; because, by the deed, she had no power to convey a fee, but merely a life estate. -Ifor the deed does not give her power to convey the whole interest; but it merely gives her power to appoint to such persons, as she thinks proper, without naming any estate in particular; which in contemplation of law, only gave her power to convey an estate for life, to the appointee.
    Call contra.
    The finding of the jury, that Mrs. Jordan made the convey-anee, in order to settle *the estate in her family, is a sufficient consideration. 5. Bac. abr. 366, cites Ld. Bac. Read, on Stat. of uses 310; and the defendant might aver and prove the consideration. Randolph v. Eppes in this court. But the connection, between husband and wife, or wife and husband, is a sufficient consideration to raise a use and support a conveyance ; and as it appears, in the deed, that that connection subsisted between the donors in the present case; and that the husband, instead of a chance to be tenant by the curtesy, which is an estate liable to impeachment of waste, was to have an estate for life certain, without any impeachment of waste, there was clearly a sufficient consideration to sustain the deed. Because “a man may covenant to stand seized to the use of A. his wife, and the consideration, that she is his wife will raise a good estate to her; for this is a good consideration in law. ’ ’ 5 Bac. abr. 366, 367; 7 'Co. -40; Beadles case; Owen, 855; Plow. 368. And as the reason is the same the converse of the proposition must be equally true. Therefore the deed in the present case operating as a covenant to stand seized to the use of the husband, that consideration was sufficient to raise an estate in him. Because the estate, which he was to take, under the deed was more beneficial than that, which he would have been entitled to without. It is not necessary to consider the conveyance as at common law; because most clearly, as there were sufficient considerations, it operated as a covenant to stand seized to uses. Eor the object plainly was that the land should pass one way or another; and therefore it may be good either way, without adhering to any particular kind of way, or any particular mode or form of conveyance. 2 Wils. 75. Which case is an express answer to the argument that it could not be considered as a statutory conveyance, because the parties intended a conveyance at common law.
    *The deed was sufficient to enable Mrs. Jordan to convey a fee simple to her appointee. Por the trustee was to convey in any manner she might think proper, and it was clearly the general intent to enable her to dispose of the absolute property. Besides the deed amounted to a consent, on the part of the husband, that the wife might make a will, and the verdict finds that she devised it in fee.
    The relinquishment was well taken. Because the commissioners are stated to have been Justices of the peace; and although the verdict finds that the commission issued blank, it does not state, that it was returned blank. But the practice is to issue them blank, and the Justices who take the relinquishment fill them up: Which for aught that appears to the contrary might have been the case here. Besides, unless the contrary be expressljr found, it is too much to say, that after the commission has been received and recorded by the court, that it shall be- supposed to have been improperly executed. The deed expressly states that Mrs. Jordan was an inhabitant of Buckingham; and therefore the verdict does in effect find, that the commission went to the proper county. So that that objection is obviated by the express finding- in the verdict; if indeed it be necessary that the Peme should be an inhabitant of the county into which the commission goes; which may perhaps admit of some doubt, as the words in the act are, where the wife resides; which expression may be satisfied by a temporary resident.
    Randolph in reply.
    It was a rule, at that time, that an heir at law should not be disinherited by implication, unless absolutely necessary; and therefore the court will require the observance of the general forms prescribed by the law. Here there was neither money or blood; and without one there was no consideration to raise an use. Mrs. Jordan does not appear to have had her own blood in view; because the deed purports to give *her an unlimited power of appointing; so that she might have given it to a stranger if she thought proper; and in fact she did so; for the limitation, to the defendant, was a limitation to a stranger, as there was no blood between him and herself. Mrs. Jordan could not convey a fee under the first deed; which only gives a power to convey a life estate; for there are no words of perpetuity and if the will is relied on, it ought to have been found. The . blank commission was void; as the statute expressly requires, that it should be issued to Justices of the peace.
    Cur. adv. vult.
    
      
      Acknowledgments - Certificate — Official Character of Persons Taking.— It Is not essential that the official character of the persons taking the acknowledgment of a deed should appear in the certificate, for it will be presumed that the acknowledgment was made before officers authorized to take it. Harvey v. Borden, 2 Wash. 156; Ware v. Cary, 2 Call 263; Langhorne v. Hobson, 4 Leigh 224. But in Hurst v. Leckie, 97 Va. 562, 34 S. E. Rep. 464, the court, in reference to the above cases, said: “These cases, however, arose before the enactment of the statute prescribing the form of the certificate of acknowledgment, which had the effect to change the law in this respect. Acts 1813, ch. 10. sec. 2. p. 35; 1 Rev. Code 1819. p. 863.”
      See the principal case cited in Tod v. Baylor, 4 Leigh 514.
      Same — Married Women — Requisitions of Statute— Compliance with, — it was held in Langhorne v. Hobson, 4 Leigh 224. that in the commission for the priyy examination of a feme covert touching a deed executed by husband and wife, and in the certificate of the privy examination and acknowledgment of the wife, under the statute of 1792, 1 Old Rev. Code, ch. 90, sec. 6, it is not necessary, that the requisitions of the statute be literally followed, to make the deed binding on the wife, it is enough if they be substantially complied with. For this proposition the principal case is cited in Grove v. Zumbro, 14 Gratt. 514. See foot-note to Grove v. Zumbro, 14 Gratt. 501.
      See monographic note on “Acknowledgments” appended to Taliaferro v. Pryor, 12 Gratt. 277, and monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Ante 125.
    
   LYONS, Judge.

Delivered the resolution of the court; that there was no error in the judgment of the District Court; and that it was to be affirmed.

Judgment Affirmed.  