
    GENERAL COURT,
    MAY TERM, 1804.
    Hawkins, et al. Lessee, vs. Burress, et. al.
    
    The omission of .the words Hit usage?* in the certificate of the «acknowledgment made ky a feme covert grantor, invalidates the deed* notwithstanding it was stated that she made the acknowledgment “of her own free will, and not through ami threats of her said husband, or fear of his displeasure’*
    A common recovery f suffered before the act of Nov, 1766, eh-,, 23, which was defective for the want oí a good tenant to th vfire* clpc, was remedied by that act, if any or the parties was a tenant of the freehold; and the execution of a lease for a year by the tenant of the freehold with a view to the suffering such recovery, doss not incapacitate the lessor from being considered as the actual tenant of the freehold within the meaning of' the proviso in the said act of 1766
    “Where there was sufficient evidence for the jury to presume that the lands mentioned in a deed to lead the uses for suffering a common recovery and the lands mention*» ed in ihe said re-’ covery we're the same; & that a resurvey made of cer tain tracts of laud contained no more land than was included in the ori» ginalsurveys
    Ejectment on a joint demise, and on separate demises, for three undivided fourth parts (the whole to be .divided into four equal parts,) of a tract or parcel of plantable land called Trent Neck, lying in Saint Mary’s county, containing 2354 acres. The defendants took general defence, and issue was joined.
    1. The plaintiff offered in evidence to the jury a patent of confirmation for the tract of land called Trent Neck, the land ip the declaration of ejectment mentioned, (though without name in the patent,) containing 2354 acres, bearing date thé 10th of September lfl6, granted to Thomas Trueman Greenfield, on a resurvey made of six tracts of land, viz, Trent-. Neck, 600 acres; Wedge, 75 acres; Refuse, 140 acres; Blacldand, 175 acres; Suenton, IvO acres, and Theln-closure, i 10 acres, on the 10th July 1705. Also the will of the said Thomas Trueman Greenfield the pa-tentee, dated the 3d of February 1730, whereby he devised to bis eldest son Thomas Trueman Greenfield» and the heirs of his body, all that the said tract of land called Trent Neck, containing 2354 acres, provided he conform to the said will, and his mother’s desire touching the land which descended to her by the death of her brother Kenelm Gheseldyne; but in case his said son Thomas, or any of his descendants thereafter, should molest, sue for and recover, the Sands which descended to his mother, to the detriment of his son Kenelm, or his descendants, it was then his will that his son Kenelm, and the heirs of his body, should be immediately vested in a good and sure estate in fee tail, as expressed and intended, to his son Thomas, of in and to all the surplus land which upon resurvey was found in those tracts mentioned in the patent of confirmation called Trent Neck, and that his son Thomas should take no benefit, either by himself or the heirs of his body for ever, of the said will, &c. and in case of failure of heirs of the body of his son Thomas, then the lands devised to Idol .should descend to his son ICenelm, and the heirs of his body. &e. He further gave in evidence, that thesaid T. T. Greenfield, the testator, died on the 10th of February 1733, leaving sis sons and two daughters, all named in th® said will, of which sons Thomas, the devisee, was the eldest and heir at law to tiie testator, and ICenelm Trueman Greenfield the devisee, in the same will named, was second son to the said testator. That the land' in the will called Trent Neck is the same land in the declaration and in the said patent of confirmation mentioned. That T. T. Greenfield (the son,) died without issue, and the said ICenelm survived him and entered upon the premises, and on the 21st day of March 1749, duly executed a lease to a certain Robert Swann, «for all those several tracts or parcels of land called Trent Neck, containing 600 acres; Wedge, 75 acres; Refuse, 140- acres; Blackland, 175 acres; Su-enton, 100 acres; and The Inclosure 110 acres; all which said several tracts of land were reduced into one entire tract, by patent of confirmation granted to-Thomas T. Greenfield the 10th of September 1716, and called Trent Neck, and containing 2354 acres of land, lying in St. Mary’s county,” &c. “To have and to hold all and singular the said premises, with the appurtenances, unto the Said Robert Swann,-his executors, &c. from the day next before the day of -the date of these presents, for and during, and unto the full end and term of one whole year from thence,” &c. «to the end and purpose that the said Robert Swann may he in the actual possession of all and singular the said bargained and sold land and premises, with,” &c. «and may by force and virtue of the statute for transferring uses into possession,” &c. «be enabled to take a grant and release of the reversion and inheritance of all and singular the said land and premises, with,” &c. “to him and his heirs, to such uses and purposes as shall be thereby declared.” That afterwards, on the 22d of March 1749, the said ICenelm and Robert Swann, and a certain John Estep, did duly sign, seal and deliver, and which was duly acknowledged and recorded, a certain deed of release in tripartite, made between the said Kenelm of the first part, the said John Estep of the second part, and the said Robert Swann, of the third part, for the docking, barring apd extinguishing. all estates tail, and ali reversions and remain* de-rs thereon expectant or depending, of and in the lands, tenements and hereditaments, viz. Trent Neck, 600 acres; The Wedge, 75 acres; The Refuse, 140 acres; Blackland, 175 acres; Suenton, 100 acres; and The Inclosure, 110 acres; all which several tracts of land were reduced into one entire tract by patent of 'eonfirmaiion granted unto Thomas Trueman Green* field, on the 10th September 1716, and called Trent Neck, containing 2354 acres, &c. “To have and ta hold all and singular the said lands and tenements* hereditaments and premises, hereby granted and released, or mentioned or intended to be granted and released, with their and every of their appurtenances* unto the said John Estep, his heirs and assigns, to and for the use and behoof of him the said Robert Swarm, his heirs and assigns, for ever, to the intent and purpose that he the said Robert Swann may be perfect tenant of the freehold of the said premises, that a common recovery may be had and suffered against him in such manner as is herein after mentioned; and for that purpose it is covenanted, &c. that before the end of the next April term, or some other ensuing term, See. the said Kenelm Trueman Greenfield, one or more writ or writs of entry sur disseisin en le post, shall and may be brought, &c. out of his Lordship’s high court of chancery, returnable, &c. ia tlie name of the said John Estep as plaintiff and de* inandant, agaiust the said Robert Swann as tenant, whereby the said John Estep shall demand, against the said Robert Swann, the said lands, &c. to which said writ the said Robert Swann shall appear, &c. and shall vouch to warrant the same premises to the said Kenelm Trueman Greenfield, who shall appear,” &c. in the usual form of deeds leading uses, &c. to th® proper use and behoof of the said K, T. Greenfield, &c. The plaintiff also offered in evidence a record of a common recovery suffered in the provincial court, at April term 1750, pursuant to the said deed, leading* the uses, &c. in the name of the said John Estep as demandant, against the said Uobert Swann tenant, and Kenclni Trueman Greenfield vouchee, &c. in the usual form, for “one tract of p!suitable land, lying and being in St. Mary5» county, called Trent Neck, containing 2354 acres, with the appurtenances,” &c. And also a record a writ of seisin, executed pursuant to the ss' .overy on the 15th of August 1750. He further gaye evidence that the said IC. T. Greenfield, died possessed of the said land on the 10th of June 1765, leaving two daughters, his only children and heirs, to wit, Margaret and Susanna. That the said Margaret intermarried with John Be Butts, and the said Susanna intermarried with George Fraser Hawkins, who entered, &c. That Susanna survived her husband, and died intestate on the 1st of April 1790. That Margaret also survived her bus-band, and died intestate, and without issue, on the 1st of June 1798. That the said George F. Hawkins • and Susanna his wife, had the following children, to wit: John Trueman Hawkins, (the eldest son,) George Fraser Hawkins, Margaret Hawkins, and Susanna Greenfield Hawkins. That the said Margaret intermarried W'tls Nathaniel Washington, and the said Susanna intermarried with Henderson Sim Butler, before this suit was brought; and that the said George Fraser Hawkins, Nathaniel Washington, and Margaret his wife, and Henderson Sim Butter, ami Susanna Ills wife, are the lessors of the plaintiff in this suit.
    The defendants then gave in evidence to the jury, that the said John Be Butts, and Margaret his wii'o, and the sad George Fraser Hawkins, and Susanna his wife, that is, the children of ICenelm the devisee, on the 29th of July 1785, executed deeds of partition of the said land between them. And on the same day the said George Fraser Hawkins, and Susanna his wife, executed a deed of bargain and sale to John Trueman Hawkins, their son, for their moiety of the said tract of land called Trent Neck, for which the ejectment was brought; which said last mentioned deed was acknowledged as follows, to wit: “On the 29th day of July 1735, came George Fraser Hawkins, and Susanna Trueman bis wife, before us, two of the justices of the peace for Saint Mary’s county, and acknowledged the within instrument of writing to be their act and deed, and the laud and premises therein mentioned to be the tight and estate of John Trueman Hawkins, his heirs and assigns, for ever, after the death of the above said George Fraser Hawkins, and Susanna True-man his wife. And the said Susanna Trueman being examined privately by us and out of the hearing of her said husband, acknowledged that she did the same of her own free will, and not through any threats of her said husband,- or fear of his displeasureThat the said .John Trueman Hawkins, the grantee under said deed, afterwards entered and was possessed of the said land so conveyed to him, and was seised thereof as the law requires; and being so seised died intestate, leaving one son John Hawkins, his heir at law, an infant under the age of 21 years; and that the defendants in this cause are in,possession of the .said land for which the ejectment is brought, under and in virtue of,the title of the said John Hawkins.
    
    The plaintiff then prayed the opinion of the court and their direction to the jury, that the deed aforesaid executed by the said George Fraser Hawkins, and Susanna Trueman his wife, to the said John Trueman Hawkins, their son, was insufficient and inoperative to convey a fee simple in the land in the said deed mentioned to the said John Tmetnan Hawkins.
    
    
      Mason, for the plaintiff,
    read the act of 1715, ch. 47, s. il, to shew that material and essential words are omitted in the acknowledgment, viz. i(ill usage by” He said, the act of 1715 contains technical expressions, which could not be departed from without fatal error as it respectsjfemes covert, whose rights it intended to protect, and that the act of 1797, ch. 103, in remedying defective acknowledgments, saved the cases of femes covert, and recognised the form prescribed by the act of 1715.
    
      
      Johnson, for defendants,
    contended, that as ther© were three deeds all executed at the same time, the acknowledgments may be all taken as making one examination of the wives. The act of 1715 prescribes a form, and the acknowledgment of the deed in question omits only the words “ill usage by.” If there are words to supply those omitted, it will be sufficient. If the feme covert was actuated by her “own free will” to make the acknowledgment, it follows of course that there was no “ill usage by” her husband. The words, that “she did it of her own free will,” are equivalent to those omitted, and exclude the inference that she was induced thereto by “ill usage by” her husband* If the words of the law, which are confused, and convey no clear ideas, have been substantially complied with, it is sufficient.
    
      Shaaff, for the plaintiff.
    This question has been decided in a variety of instances. Most of the acknowledgments by femes covert have been made by coercion, Before the act of 1715, ch. 47, femes covert could only acknowledge in court. That act positively declares, that unless the form of the law is complied with, the deed shall not operate to bar the vendor, Every word in the formula should be used. The form prescribed for bail pieces must be .pursued word for word; sp also as to confessions of judgments. In this case the form prescribed is not formally nor substantially complied with. An acknowledgment may be made by a feme covert with her “own free will',” jet such “own free will” may have been produced by antecedent “ill usage biff her husband. If the argument of the counsel on the other side be correct, then nothing more is necessary than to state in the acknowledgment that the feme covert made it of “her own free will,” which would be sufficient, and answer all the purposes of the form. This surely could not have been the intention of the Saw. It is absolutely necessary that the law and the form should be adhered to. The legislature were sedulous ia guarding and protecting the interest of femes covert. No latitude of construction therefore should be given to the act of 1715.
    
      Key, on the same side.
    The act of 1715 requires that the. feme covert should be examined apart from and out of the hearing of her husband; that she should acknowledge “willingly and freely,” without being induced thereto by ‘fear of” her husband, “threats of” her husband, “ill usage by” her husband, “fear óf the displeasure of” her husband. The acknowledgment should therefore state that the feme covert had not been influenced or compelled to acknowledge by fear, threats, ill usage, or fear of incurring the displeasure of her husband. The act of 1797, ch, 103, was made to cure defective acknowledgments in a variety of deeds, where the grantor had acknowledged the “lands” to be the right of the grantee, but had not acknowledged the deed to be his “act and deed.” The proviso of this act specially saves the rights of femes covert, shewing the intention of the legislature, that the strict form prescribed by the act of 1715, relative to femes covert, should not be dispensed with.
    
      Johnson, in reply, said, he did not contend that the acknowledgment ought to bar the/eme covert, if the law had not been substantially complied with. But he stated, that in this instance it had been substantially complied with. The rule of construction adopted by this court in the case of Hoidy's Lessee vs. Harryman, (3 Harr. $M*Hen. 581,/ that the grantor, should acknowledge the instrument to be his “act and deed,” and that nothing short of that acknowledgment would make the deed valid so as to pass the estate intended to be conveyed, was reversed by the court of appeals, not in consequence of the act of 1797, ch. 103, but wholly independent of that act. Here then was the opinions of the court' of appeals and the legislature, that the construction given by this court was incorrect. It shews that a rigid construction ought not to be adopted. If it be true that the/eme covert acknowledged the deed of “her own free will” it mast exclude the Idea that she was induced by fearf* “threats,” “ill usage by,” or “fear of incurring her husband’s displeasureand her appearing before the justices, and their taking her acknowledgment, evince that she made the acknowledgment in the manner the law requires.
    A common recovery suffered be love the act of Nov. 1766, ch. 21, which was defective for the want ©fa good tenant to the precipe, was remedied by that act, if any of the parties was a tenant of the freehold; & the execution of a lease for a year by the tenant of the freehold with a view to the suffering such recovery, docs not incapacitate the lessor from being considered as the actual tenant of the freehold within the meaning of the proviso in the $ai<l act of 1766
    Cítase, Ch. ,T. It is not for the court to say what the words of tiie law ought to be—they must take them as they are. The court think the acknowledgment certified is defective, and does not divest the estate of thejfeme covert, who was in this case grantor. They think the words 4-or ill usage by,” are material; therefore, the court are of opinion, and so direct the jury, that the acknowledgment of the feme covert is defective, the words “ill usage” not being inserted in the certificate of the justices who took the said acknowledgment; and that the said deed is inoperative to pass and transfer her interest in the said land. The defendants excepted.
    2. . The defendants then prayed the opinion of the court, and their direction to the jury, that notwithstanding the said deeds of lease and release preparatory to the execution of the said common recovery, and notwithstanding the said recovery, the estate tad created by the will of the said Thomas Trueman Greenfield remained in full force. And further, that if the said recovery was sufficient to dock the said entail,'the plaintiff was only entitled to recover three fourths of the lands actually contained within the true location of the said original tracts, which were resurveyed into the survey on which the said patent was granted.
    
      Martin, (Attorney General,) for the Defendants.
    
      Kenelm T. Greenfield, about to dock the estate tail in Trent Meek, by double vouchee, by way of a common recovery, on the 21st March 1749, executed to Robert Swann a lease for a year for several tracts of iand upon which a resurvey had been made, and called Trent JVeck, in order to take a release to certain uses and purposes. To make a tenant of the precipe, a deed of 
      
      release was executed on the day following; an ture tripartile — TCenelm T. Greenfield of the first part, John Estep of the second part, and Rubert Swann of the third part, for the same lands mentioned in the lease —“to have and to hold ail and singular the said lands and tenements,” &c. “unto the said John Estep, his heirs and assigns,” &c. To the intent that a common recovery by Estep against Swann should be had and suffered in the then provincial court. The habendum is to Esiep, and one of the questions is, whether Swann is made a tenant of the precipe by the deed? The common recovery is defective for want of actual freehold in the possession of a tenant to the precipe. .The act of JCov. 1766, eh. 21, entitled, “An act to aid defective common recoveries,” does not cure this defect. K. T. Greenfield was not actual tenant of the freehold which is distinguishable from the legal tenant; for there could be no actual tenant of the freehold in a person who had not the possession of the land itself.
    
      ICey, contra. The common recovery, notwithstanding there is no tenant of the freehold, is good. The recovery was suffered in 1750, and the act of Nov. 1766, eh. 21, was passed to aid any defects which may have occurred in the suffering of common recoveries. It provides “that all common recoveries heretofore suffered in the provincial court, by consent, and agreement of the parties thereto, shall be good and available in-law to .all intents and purposes whatsoever, to dock and cut off any estate tail in any of the parties thereto, and bar the issue in tail, who can, could, or might claim as heir of the body or bodies of any of the parties thereto, and also to bar those in reversion or remainder, who can, could or might claim in default of issue of the body or bodies of any of the parties to such recoveries, in the same manner as if suck recoveries had been legally and formally suffered and executed, notwithstanding the tenant to the writ in any such recovery was not tenant to the freehold at the time of judgment rendered, or any other defect in drawing, suffering or executing any of the said recoveries; provided that some one or more of the parties to such recovery* at the time of such judgment, was actual tenant of the freehold in the manors, lands, &c. recovered, and the persons, or some of them, joining in such recovery* liad a sufficient estate and power to suffer the same.” This act clearly takes in the present case, and aids any defect which may be in the proceedings. The lease, release and recovery, are all to be taken together as one act. The parties to the proceedings had a sufficient estate and power to suffer the recovery. But the deed is good independent of the act. of assembly, as may he shown by the authorities. The habendum in the deed does not control the premises. The freehold is not in abeyance by a lease for a year. The fee- and freehold are in the person who executes the lease for a year. Tiie lease for a year does not take away the freehold from the lessor. 2 Blk. Com.
    
    
      Martin, (Attorney General,) in reply. The act of 1766 was intended to aid defective common recoveries only in those cases where the lands had been sold — See the third section of the act. Who was tenant at the time of suffering the recovery? Not ICe-wkn T. Greenfield. He had executed alease whereby lie was out of possession, and the release states the actual possession to be in another. It is an inheritance in reversion in the lessor, and not in actual possession. K. T. Greenfield, by the law of 1766, to aid the recovery must be actual tenant of the freehold at the time of the judgment; whereas he had only an inheritance in reversion, and the act of 1766 does not aid this recovery.
    C5ha.se, Ch. J. The court are satisfied that the act of November 1766, ch. 21, embraces the case before the court, and unless this recovery is aided by that act, no recovery has been aided by it. A common recovery is a mode of conveyance. The deeds of lease, release and common recovery, are all to be considered as one act. The intention of the parties "was to create a tenant to the freehold; but the deed biing «artificially drawn, did not do so. Supposing the objection to the deed to be good, the freehold rested in 1C. T. Greenfield, who was a party to the conveyance, and unless a case like this is provided for, the act is nugatory.
    Where ther© was Bufficientlevidence for the jury to {iresutne that the antis mentioned in a deed to lead the uses for suffering a common recovery, and tbft lands mentioned in the said recovery, were the same# and that a resur** vey made of certain tracts of land, contained it® more land than was included in. the original veya
    The court are of opinion that the common recovery in this case is good and available in law to dock the estate tail created bv the will of Thomas Trueman Greenfield. The defendants excepted.
    3. Martin, (Attorney General,) for the defendants. T'»e next question is, whether Trent Meek, the origin jial, or Trent Meek, the resurvey, is conveyed by the deeds of lease and release, and common recovery? The ejectment js brought for different land than that mentioned in the common recovery; and the plaintiff can only recover three fourths of the land for which the common recovery was suffered, docking the estate tail.
    
      Mason, contra. It was heretofore the practice of the land office to permit persons to take iip Sand by natural calls, without measuring the distance, by which, more land was taken up than was intended to be granted, or than the party paid for. This gave rise to the Lord Proprietary’s instructions prohibiting more than one boundary or call, and an attempt was made by the proprietary to induce persons holding by the former mode to resurvey and pay for the surplus land included in their former grant, but no court had ever questioned the grantee’s right to such surplus whether he resurveyed his lands or not. The case of Thomas T Greenfield was thus circumstanced, as may be seen by reading of the grant, and no, land is included in the grant of confirmation but that included in the original tracts upon which the resurvey was made, being the same lands included in the deeds of lease and release. The lease and release convey the tracé of land called Trent Meek, the resurvey, and the common recovery was suffered for Trent Meek, containing 2354 acres, and if the lease and release had been lost, the act of assembly cured the defect; therefore the recital in the lease is out of the question.
    
      
      Sha-aff, on the saíne side. The common recovery ■was suffered for Trent Neck, the resume). The court has said that the lease and release and common recovery form one entire act. The act of assembly aids the delect if the deeds do not convey the resurvey. The lease and release convey all the lands therein mentioned, and Trent Meek, the resurvey, is mentioned in the deeds.
    
      Key, on the same side. Suppose there were no lease or release on record — would not the common recovery be aided by (be act oí assembly? The- deeds were intended to make a tenant to the precipe, which tlie aiding act dispenses with.
    
      Martin, Attorney-General, in reply. The lease and release conveyed the land by specification, and the recital of Trent Meek could not enlarge the quantity beyond the extent of the specified land, The recital, that the lands had been resurveyed, does not of necessity convey the surveyed tracts, and unless rhe limits of the small tracts contain the same quantity the whole is not conveyed. The lease, release, and common recovery, arc all to betaken together, and must take in arid relate to what is contained in the deeds, and to the recovery. 2 Burr. 1134.
   Chase, Ch. J.

The court are of opinion, that there is sufficient evidence to induce the jury to presume that the lands conveyed, and the. lands >n the common recovery, were the same, amt that the resurVey contains no' more land than the original tracts.

The defendants excepted, Yrnlict and judgment for the plaintiff. The defendants appealed to the Court of Appeals. But the case was compromised, and the appeal was dismissed at June term, 1806.  