
    Sally B. Carney v. Casper Hopple's Heirs.
    1. A conveyance, by a husband and wife, of lands of the husband in this state, executed in another state, but not in conformity to the laws of such state, or the statute of this state, will not bar the right of the wife to dower in such lands after the decease of the husband.
    2. Where a husband and wife joined in the conveyance of the lands of the husband under the act of 1805, and the acknowledgment of the deed does not show that the wife was examined “ separate and apart from her husband,” etc., as required by the second section of the act, the deed is insufficient to bar the widow’s right of dower in the lands so conveyed.
    3. Such defect in the acknowledgment of a deed by a husband and wife, can not be corrected or relieved, as against the wife, under the act of 1857, without showing that the provisions of the statute, in relation to the separate examination of the wife, were substantially complied with, or that she executed such conveyance voluntarily and without any restraint or compulsion from her husband, with knowledge of its contents.
    Error to the Superior Court of Cincinnati.
    The plaintiff filed her petition on the 5th of February, 1858, in the Superior Court of Cincinnati, against Casper Hopple, stating that prior to the 14th of August, 1810, she was married to David L. Carney, who died in 1856. That during coverture with her he was seized of an estate of inheritance *in certain premises in Cincinnati, in which she is entitled to dower. And she asks that dower may be set off to her.
    The defendant filed an answer and cross-petition, stating that on the 14th of August, 1810, an indenture was made between David L. Carney and William Barr, whereby Carney, in consideration of 11,200, bargained and sold, and thereby intended and attempted to convey and confirm unto said Barr, his heirs and assigns forever, the premises described in the petition; and the said Carney therein covenanted and agreed that he and his heirs would warrant and defend the premises unto Bai'r, his heirs and assigns, against all persons claiming or to claim by, from, or under him, them, or any of them, or by, from, or under any other person or persons whomsoever.
    The testatum clause was as follows: “In witness whereof, the said David L. Carney and Sarah his wife, who hereby relinquishes her right of dower in said premises, have hereunto set their hands and seals the day and year first above written.”
    This indenture was signed and sealed by the plaintiff and her husband, but there was but one witness attesting their execution, the witness being James Kennedy, a.justice of the peace of Campbell county, in the State of Kentucky, before whom the deed was acknowledged. The acknowledgment is as follows :
    
      “ State of Kentucky, Campbell County, ss :
    
    “Before me, the undersigned, one of the justices of the peace> came personally David L. Carney, and Sally B. Carney, his wife» the within grantor, who acknowledged the within indenture to be their voluntary act and deed, for the use and purposes therein contained. In testimony whereof, I have hereunto set my hand and affixed my seal this 16th day of August, in the year 1810.
    Tseal.j “James Kennedy.”
    
      The answer and cross-petition avers that at the time of the execution and delivery of this indenture, Carney was seized of an estate in fee simple; that it was made in pursuance of % previous agreement between Barr and Carney, and the plaintiff, his wife, whereby they agreed, for the consideration stated, to convey their entire interest; that the consideration was paid, and the indenture was prepared for the purpose of completing the conveyance of the title and estato of the plaintiff as well as of her husband, and was signed, sealed, acknowledged, and delivered by them, and was accepted by Barr, who took possession in the full belief that it expressed the intention and effectuated the agreement between the parties.
    The defendant, who acquired the title and possession of Barr in 1827, asks to be relieved against the errors and omission in the indenture, and that the plaintiff might be enjoined from prosecuting her claim for dower.
    The plaintiff’s reply denies that she executed the deed, or that she acknowledged it, or agreed to convey her interest in the property.
    Casj>er Hopple having died, his heirs have been made parties defendant.
    On the trial the defendants offered in evidence, to sustain their defense and counter-claim, a deed from David L. Carney to William Barr, dated August 14,1810, for the premises described in the petition ; and gave evidence tending to prove that the deed was signed by the plaintiff and her husband, David L. Carney. The deed was admitted in evidence, subject to the exceptions of the plaintiff.
    The further proceedings on the trial, as shown by the bill of exceptions, were as follows:
    “It was admitted by the counsel for'the plaintiff and defendants, that said David L, Carney, at the date of said deed, was seized in fee simple of said premises, and he and plaintiff were husband and wife; and that David L. Carney died prior to the institution of this suit; and that defendants’ ancestor was in possession of said premises when this suit was instituted, having derived title by deed from William Barr.
    “ It was also admitted that James Kennedy, at the time.of taking the acknowledgment to said deed, was a justice of the peace in and for Campbell county, and that he is dead, *and that his signature thereto was genuine, and that at no time was a justice of the peace in Kentucky authorized to take acknowledgments of deeds.
    “ That was all the evidence offered in the case. And thereupon the plaintiff, by her counsel, asked the court to decide that said deed was not competent evidence to show that the plaintiff had released or agreed to release her dower right; and also to decide that said deed did not bar the claim of the plaintiff for her dower in the premises, as set forth in the pleadings, and did not authorize the court to render a judgment or decree requiring the plaintiff to make any other deed which should have the effect of transferring her right or title of dower in said premises. But the court refused to decide as requested, and did decide that said deed was admissible as evidence in the cause to sustain the counter-claim.”
    Thereupon the court found the issues for the defendants, and ordered the plaintiff to convey her interest to the defendants by a deed properly executed and acknowledged, and in default thereof that the judgment should operate as such conveyance; and that she be enjoined against setting up any claim to the premises in question.
    To the rulings and judgment of the court the plaintiff duly excepted, and now prosecutes this petition in error for their reversal.
    
      Fox & Fox, for plaintiff in error:
    1. The deed had no validity as a deed either in Ohio or Kentucky.
    It is void as an Ohio deed, because it has only one witness; because the wife was no grantor in the deed, and is not mentioned except in the testatum clause; also, because the wife was not examined separate and apart from her husband.
    It is void as a Kentucky deed, because the officer was not authorized to take the acknowledgement. 1 Chase’s Stat. 484.
    2. When the court is called upon, under the act of 1857, to amend a deed executed by a married woman, it must be shown that a deed was in fact executed by the wife with her husband. The deed, on its face, must appear to have been *ckily executed, and also duly aehnowlenged before a proper officer; for, until acknowledged, it is no deed in Ohio. It must appear, on the face of the deed, that a mistake has been committed. This case is not like that of Goshorn v. Purcell, 11 Ohio St. 641.
    
      3. The evidence which the law requires to be in writing can not be dispensed with. Elliott et al. v. Piersol, 1 Peters, 338.
    
      T$. A. Ferguson, for defendants:
    1. The constitutional and statutory law under which the defendants seek relief, is fully stated and considered in the case of Goshorn v. Purcell, 11 Ohio St. 641. The present case is within the purview of the act of 1857 — a case where husband and wife intended to convey their entire estate, but by reason of omissions and defects in the deed, did not effectuate that intention.
    2. It may be said, however, that the intention of the husband and wife must not be gathered merely from what they declare in the deed, but also from the acts which are required to be done for the protection of the wife.
    But is this so? Are not the same kind of acts required as to the deeds of persons other than husband and wife, as are required in their case? All deeds must be acknowledged before a proper officer. The separate acknowledgment of the wife is an act of the same kind as the acknowledgment of the husband, to be done before and certified to by the same officer. The omission to make the acknowledgment in either case, is a defect which makes the deed ineffectual to carry out the intention of the parties. If relief can be granted in one case, why not in the other?
    Again, all deeds must be attested by two subscribing witnesses. They are required for the protection of the wife. 1 Greenl. Ev. (Redf. ed.) 569; Cussons v. Skinner, 11 M. & W. 168; Hollenback v. Fleming, 6 Hill, 303. Tet it can not be doubted that, under the decision in Goshorn v. Purcell, relief would be granted in a case where the defect is the want of the requisite number of subscribing witnesses.
    It is within the power of the legislature to dispense entirely with these formalities, and all that the law under consideration does, is to provide for dispensing with them when the ^parties have omitted to observe them, if the courts are satisfied that the parties intended to do the same thing as they would have done had they observed them. The thing intended to be done is the conveyance of the wife’s interest, and the forms are those prescribed by law, the omission to observe which are the defects to be cured.
    2. It is argued by the plaintiff’s counsel, that “the deed on its face must appear to have been duly executed, and also duly acknowl
      
      edged before a proper officer, for, until acknowledged, it is no deed in Ohio.”
    If this be true, then only substantial defects can be relieved against, which we have endeavored to show is contrary to the doctrine of this court. It leads, however, to the consideration of what is meant by the words “deed or other conveyance,” in the statute. They can not, of course, mean the statutory deed or conveyance as claimed by the plaintiff’s counsel, because there would then be no error to cure. Nor, on the other hand, as seems to be supposed, are we driven to claim that they include the contract of a husband and wife to convey land. They do, however, include all instruments executed by husband and wife “intended to convey or incumber” the wife’s interest in land; that is, they include all instruments which, by their terms, show that there was an intention to pass the wife’s interest to the grantor presently and not in the future. The term deed has a known definition at common law, and is to be understood in its technical sense. Fleming v. Insurance Co., Brightly, 166; 4 Kent, 452, 453; Catlin v. Ware, 9 Mass. 218; Sufkin v. Curtis, 13 Ib. 223.
    3. It is also claimed that the mistake or error can not be proved by the deed alone, and that there is no other evidence.
    It was on the evidence of the deed alone (see fourth defense) in the case of Goshorn v. Purcell (11 Ohio St. 643), that the court found their decree. That, as interpreted by the court, evidenced' an intention to convey the entire interest of Mrs. Goshorn, and authorized the relief. So, in the present case, Mrs. Carney’s intention when she executed the deed was to relinquish her right of dower; and having failed to effectuate that intention in the form proscribed by law, the court were empowered to grant relief. It is true that Mrs. Carney denied ^having signed the deed, but this issue was found against her upon abundant testimony. The deed was also an ancient writing, and possession having been held and claimed under it, and it being produced from proper custody, was evidence of all the statements in. it and in the acknowledgment relating to the conveyance of the land. 1 Greenl. Ev. (Redfield’s ed.) secs. 20a, 21, 22, 143, 144, 147, 570, and cases cited; Allen v. Parish, 3 Ohio, 107.
   Day, C. J.

It is not disputed but that the plaintiff was entitled to a decree, unless she is barred of her right of dower through the deed offered in evidence.

The deed on its face is void as against the plaintiff, because it was not executed in accordance with the laws of this state,.or of the state where it was made.

The statute in force authorizing a married woman to convey her interest in land, when this deed was made, was passed Februai-y 14, 1805; and, in addition to requiring her to execute such conveyance with her husband, expressly provided how this shall be done, in order to render the deed valid as against the wife. The duty of the officer taking the acknowledgment of the deed, and its effect, is defined in the second section:

“ He shall examine the wife, separate and apart from her husband, and shall read or otherwise make known the full contents of such deed or conveyance to said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and, as her act and deed, deliver the said deed' or conveyance, without any coercion or compulsion of her husband, every such deed or conveyance shall be and the same is hereby declared to be good and valid in law, to all intents and purposes, as if the said wife had been a sole and not covert at the time of such sealing and delivery, and the judge or justice taking such acknowledgment, shall, under his hand and seal, certify the same upon the back of the deed or conveyance.” 1 Chase’s Stat. 485.

A substantial compliance with the requirements of this section was essential to the validity of the deed against the wife. *Ward’s Heirs v. McIntosh, 12 Ohio St. 231; Browder v. Browder, 14 Ohio St. 589.

The certificate of acknowledgment wholly fails to show a compliance with the requisitions of this section, and the deed is, therefore, on its face, void as against the plaintiff.

This defect is not cured under the provisions of the statute rendering deeds valid, that are executed in accordance with the law of the state where they are made; for the acknowledgment before a justice of the peace was not authorized by the laws of the State of Kentucky, whei’e it was made.

It is, however, impliedly conceded by the defendants, that the deed is void as against tho plaintiff, by their counter-claim or cross-petition seeking the correction of the defects in the deed.

It is claimed that relief may be had under the act of April 17 1857, by which the courts are “ authorized and empowered to correct, amend, and relieve against errors, defects, or mistakes occurring in the deed or other conveyance of any husband and wife, heretofore or hereafter to be executed, and intended to convey or incumber the lands or estate of the wife, or her right of dower in the lands of her husband, in the same manner and to the same extent as the said courts are or shall be authorized or empowered to correct errors, mistakes, or defects in the deeds or conveyances of any other persons.” S. & C. Stat. 694.

If it be conceded that courts have the power conferred by this statute, the question recurs, whether the defendants made a case that warranted its exercise.

The bill of exceptions purports to set forth “all the evidence offered in the cause;” and it undoubtedly does give all that it tended to prove.

Let it be assumed that the plaintiff signed and sealed the deed; still there was no proof that she acknowledged such signing and sealing, except the statement of a person having no legal authority to make such statement or certificate.

But suppose she did acknowledge all that is stated in the certificate of the justice, there is not upon the face of the deed, or in the evidence given on the trial, anything that in the least tends to show that she did so under the protection ^afforded to her by the statute. Without a compliance with the second section of the act before quoted, the acknowledgment was void, even though it was made before an officer authorized to make it; for it is only under these protecting provisions of the statute that the conveyances of married women are “ declared to be good and valid in law.”

Doubtless cases may occur, as in that of Goshorn v. Purcell, 11 Ohio St. 641, where the mistake may be apparent upon the face of the instrument; but there is nothing in this deed tending to show that anything was omitted to be inserted by mistake in the certificate of acknowledgment; or, if the plaintiff did acknowledge the execution of the deed “ for the uses and purposes therein contained,” there is surely nothing tending to show that she did so, or would have done so, “ separate and apart from her husband.”

To imply that these provisions of the statute, which are prerequisite to the validity of the deed, were complied with, without any proof whatever, either upon the face of the deed or otherwise, would be a virtual repeal of the statute. But without such implication, there is no case shown by the record for the exercise of the power conferred by the act of 1857.

Relief can not ,be obtained under this statute, without showing that the provisions of the second section before mentioned were substantially complied with, or. at least showing that the wife executed the deed with a full understanding of its contents, voluntarily and without any restraint from her husband. There was a total want of proof to establish any fact of this kind, except what may be implied from the face of the deed, which is entirely insufficient to warrant the conclusion that she executed it without any restraint from her husband, much less that she did so under the statutory protection.

Judgment reversed, and cause remanded.

White, Welch, Brinkerhgee, and Scott, JJ., concurred.  