
    *Hairston v. Doe e.d. Randolphs.
    December, 1841,
    Richmond.
    (Absent Brooke, J.)
    Married Woman — Deed—Certificate of Privy Examination — Case at Bar. — Certificate of iustices of privy examination of the wife to a deed of husband and wife, states, that the wife appeared before the iustices, and separately and apart from her husband. acknowledged that she had -willingly executed the deed on her part, and wished not to retra'ct it;-the deed was signed.and sealed by both husband and wife in 1798, and the privy examination was had in 1816: Heed, upon construction of the statute of 1814 (incorporated in the statute of conveyances, 1 Rev. Code, ch. 99, § 15), that the certificate is defective in not shewing that the deed was explained to the wife, or that she was in any way apprised of its contents and purpose, and therefore the rights of the wife did not pass by the deed.
    In ejectment for 1660 acres of land in Henry, by Richard, William and Burwell Randolph, lessors of the plaintiff, against Hairston, in the circuit superior court of Henry, and thence transferred to that of Halifax, where the cause was tried, a special verdict was found shewing the following state of facts:
    Mary, the wife of David Meade Randolph, was on the 1st January 1798 seized in a fee of a parcel of Í660 acres of land in the county of Henry, the premises in the declaration mentioned; and David Meade Randolph and Mary his wife, by deed of bargain and sale, .of .that date, in consideration, of ^450. conveyed the land. to .George Hairston. The deed was signed and. sealed by both the husband and wife; and upon full and due proof of execution by, the husband, was admitted to record by the county court of Henry, in February 1798. No privy examination of the wife in respect to- the deed, or any proceeding of the kind, was had at the time. But in February. 1816, Mrs. Randolph, her husband being then still living, appeared before two aldermen and justices of the peace of the city of Richmond, *and then and there acknowledged the original deed; and they endorsed- on the deed a certificate of the acknowledgment in the following words —-“City of Richmond, to wit: We J. P. and W. H. F. magistrates of the said city, do hereby certify, that Mary, wife of the within named D. M. Randolph, both of them parties to the deed within executed, personally appeared before us, and separately and apart from her husband, and acknowledged that she had willingly executed the said deed on- her part, and wished not to retract it. Given under our hands and seals this 20th February 1816.” And this certificate, signed and sealed by the justices, was, together with the original deed on which it was endorsed, delivered by George Hairston, the bargainee, to the clerk of the county court of Henry, who recorded the certificate, and made a certificate of the recording thereof in the following words: .‘‘Henry clerk’s office, 15th April 1816. The above certificate purporting the relinquishment of Mary Randolph, wife of D. M. Randolph, of her right of dower &c. to the land conveyed by the within indenture to George Hair-ston, was exhibited to me in my office, and admitted to record. (Signed) W. Reed, clerk H. C.” Immediately after the execution of the deed in January 1798, George Hairston, the bargainee, took possession of the land thereby conveyed, and thenceforth ever afterwards continued to hold the same, without interruption, till his death' in 1827. He devised the land to Marshall Hairston, the defendant in this suit. David Meade Randolph died about five years, and Mary Randolph his widow about- three years, before the ejectment was brought. The lessors of the. plaintiff were the- heirs at law of Mary Randolph. And the question referred to the court- by the special verdict, was, Whether, upon the facts therein stated, the title of Mary Randolph in the land which the deed of January 1798 purported to convey, passed thereby to George Hairston, the bargainee?
    *The circuit superior court held that it did not, and gave judgment for the plaintiff. To which this court, on the defendant’s petition, allowed a super-sedeas.
    Cooke and Leigh, for plaintiff in error.
    The question is, whether it sufficiently appeared by the certificate of the aldermen of Richmond of February 1816, that Mrs. Randolph then acknowledged the deed of January 1798 to be her deed, in such manner and with such solemnities as the then existing statute law of Virginia required to make the deed of a feme covert binding on her? The regularity of the proceeding must be tested by its conformity with the provisions of the statute of 1814-’15, ch. 28, i 3, which was the law of the land at the time. But for the purpose of understanding the spirit of our legislation on the subject of conveyances of real estate by femes covert, it may be well to look back to former statutes in pari materia, and especially to compare the provisions of the statute of 1814-’IS with those of the statute of 1785, ch. 62, the construction of which has been the subject of adjudication. *It will be found, on examination of the series of statutes on “the subject, that all of them previous to that of *1785 only required that the feme covert should be examined by the court, or by the justices under the dedimus potestatem, privily and apart from her husband, and that she should give her free consent to the same, without requiring that the deed should be shewn and explained to her by the court, or by the commissioners: her free consent was all that was to be ascertained, and when ascertained by commissioners was all that they were to certify. The statute of 1785 was the first which requires, that in the privy examination of a feme covert, the deed should be shewn and explained to her, either by one of the judges of the court, or by the justices acting under the dedimus potestatem, and that upon such privy examination she should declare that she freely and willingly executed the deed; and when made by commissioners, that they should certify such privy examination by them, and such declaration made, and consent that it might be recorded, yielded by her, and return the certificate with the commission and thereunto annexed : the act of 1785 contained directions to the court, or the commissioners, how they should make the privy examination of the feme covert, and what they should do for the protection of her from the coercion of her husband, fraud or imposition; but it did not prescribe any form of the certificate of the commissioners when the privy examination was made by them in the country. The alterations made by the statute of 1814 consisted in the following- particulars: 1. It dispensed with the necessity of a commission for making examinations of femes covert to deeds executed by husband and wife, and authorized two justices, without any such commission, to make such privy examinations: the former statutes required a dedimus potestatum in each particular case; this statute *was a general dedimus potestatum to all justices of the peace to make privy examinations in all cases. 2. The statute of 1814 gave (what that of 1785 did not give) a form of the certificate to be made by the justices of their privy examination of femes covert to deeds of husband and wife, and indicated the particular duties of the justices only by the form given for their certificate ; yet it required them to certify the feme covert’s privy examination and acknowledgment of the deed, not in that precise form, but to that effect. And 3. the statute of 1785 was very explicit in directing that the deed should be shewn and explained to the feme covert at the time of her privy examination, and by a judge of the court, or by the commissioners, before whom the proceeding was had: but the statute of 1814, in the form of the certificate it prescribed for the justices acting in the country, only required that the feme covert, “being examined by them privily and apart from her husband, and having the deed fully explained to her, should acknowledge the same” &c. without saying (at least, without distinctly saying) when or by whom it should be explained to her. If it was enough under the statute of 1785, much more is it enough under the statute of 1814, that it should appear from the certificate, that the feme covert had, at the time of her examination, knowledge of the contents and purpose of the deed, no matter how, when or from whom, she acquired that knowledge, and, having such knowledge, gave her free consent to the deed, uninfluenced by the power of her husband.
    The main objection to the certificate of the aldermen of Richmond of February 1816, endorsed on the deed of January 1798, is, that it does not thereby appear, that Mrs. Randolph was privily examined by them and had the deed fully explained to her. It appears by the certificate, that she personally appeared before the aldermen, separately and apart from her husband, and acknowledged that she had willingly executed the said *deed on her part (this very deed, namely, which her husband and she had executed to Hair-ston in 1798) and wished not to retract it. She appeared “separately and apart from her husband:” separately is tantamount to privily, for the privy examination of a feme covert does not mean a private or secret one, but only an examination in the absence of her husband, when she is under the protection of the justices and free from his control. She “acknowledged, that she had willingly executed the said deed;” that is, she acknowledged in 1816, that she had, eighteen years before, willingly executed this deed to Hairston; she could not have ■made such an acknowledgment, unless she remembered the transaction, or ha°d recently read the deed, or it had been otherwise explained to her; unless, in short, she was acquainted with the contents and purpose of the deed. She acknowledged that she had executed the deed “on her part;” shewing, that she knew it was a deed of her husband and herself; which she could not have known without having seen and understood the instrument. She acknowledged, that “she wished not to retract” the deed: how could she have had any wish on the subject, without knowing what the deed was? There is not the least reason to doubt the fairness of the transaction. The certificate leaves no doubt, that Mrs. Randolph in fact knew what she was doing, and, with full knowledge of the deed, gave her free consent to it. If the court should be of this opinion, and should yet think that these are inferences of fact from the certificate, and inferences which may be confirmed or refuted by proof of the degrees of Mrs. Randolph’s intelligence or ignorance, or other circumstances, and that therefore these inferences ought to have been found by the jury; this will only shew, that the special verdict is imperfect, and that a venire de novo ought to be directed.
    The case of Harvey & wife v. Borden, 2 Wash. 156, arose under the statute of 1748, ch. 1, § 6, which required *that the commission for making the privy examination of a feme covert to a deed of husband and wife should be directed to two or more commissioners, being justices of the peace; and in that case, it did not appear from the commission, or from the certificate to the commissioners who made the privy examination of the feme covert, or from any part of the record, that the commissioners were justices of the peace: and this court held, that though such commissioners should in fact be justices of the peace, yet it was not necessary, that it should be stated in the commission, or in their certificate of the execution thereof, that they were justices; and moreover, that, in the absence of proof to the contrary, the court ought to presume that they were justices. So, in Ware v. Carey, 2 Call 263, the commission for the privy examination of the feme covert, was directed 1 ‘to ■— -gentlemen,” and was executed by two persons who did not state, in their certificate, that they were justices of the peace, nor did it appear by the record that they were so; but the certificate of the execution of the commission being returned to the county court and recorded, it was held, that it sufficiently appeared, that the feme covert had duly executed and acknowledged the deed. In those cases, the objections to the proceeding affected the very competency of the commissioners to the care of whom the law confided the rights of the feme covert; and though their competency did nowise appear, the . court held that the deeds were well executed and duly acknowledged. The cases of Banghorne v. Hobson, 4 Beigh 224, and Tod v.' Baylor, Id. 498, arose under the statute of 1792. In the first of them, the commission for the privj>' examination of the feme covert did not require the justices to shew and explain the deed to her, as the statute required they should; but the certificate of the execution of the commission stated, that she was examined privily and apart from her husband, and that she acknowledged the *deed, and declared that she did so freely and voluntarily &c. “the commissioners having read the deed to her,” without stating that thejr had shewn and explained it to her: and this certificate was held sufficient evidence of a good execution of the deed by the feme covert. In Tod v. Baylor, the commission did not. direct the justices to shew and explain the deed to the feme covert, nor did they certify that they had shewn and explained it to her; but they certified, that she made her acknowledgment to them of the conveyance of the land (mentioning the quantity) contained in the deed, freely and voluntarily &c. Carr, J., held, that the due execution of the deed by the feme covert sufficiently appeared by the certificate, 1. because though the statute required that the deed should be shewn and explained to her by the commissioners, it did not require that they should certify that they had done so; and 2. because it appeared by the certificate, that she knew the contents and purpose of the deed, for she acknowledged the conveyance of the very quantity of land therebjr conveyed. Tucker, P., concurred in, the same result, but only because the certificate shewed that the feme covert acknowledged the conveyance of the very land contained in the deed; and so, her knowledge of the nature of the act she was doing appeared from the certificate. But, certainly, her knowledge of the deed was only an inference from the facts stated in the certificate. These cases shew, that wherever a feme covert has given her free consent to a deed, in which she has joined with her husband, with knowledge of the deed, however acquired, and whether manifested directly or circumstantially by the certificate of her privy examination, the statutes, the commission for taking the privy examination, and the certificate of the execution thereof, have all been liberally construed to support the conveyance, not strictly, to invalidate it.
    All the statutes on this subject, from the earliest to the latest, have been mainly intended, to provide, at *once, a method by which married women should be enabled to convey their interests in real estate, and, at the same time, to secure to them the deliberate exercise of their own free will in making such aliena-tions, If it appear from the certificate of the wife’s privy examination to a deed of husband and wife, that she gave her free consent thereto, uninfluenced by the power of her husband, and (in the language of the president of this court in Tod v. Baylor) with knowledge of the nature of the act she was doing; that has been always held sufficient under the former statutes. It is submitted, that it results by inevitable inference from the certificate of the privy examination in this case, that Mrs. Randolph voluntarily joined her husband in the execution of the deed, and knew its contents and purpose at the time of her acknowledgment of it; and that this certificate would have been sufficient under any of the statutes previous to that of 1814, and is equally sufficient under that statute.
    Howard and Robinson, for the defendants in error.
    “At the common law, a feme covert could make no deed. By statute, she can make a valid deed, if it be executed under those forms and with those solemnities required by law; but if any of these be omitted or mistaken, the deed is void;” per Carr, J., in Currie v. Page, 2 Heigh 620. Has this deed been executed by Mrs. Randolph under those forms and with those solemnities required by the statute of 1814? or has any of those forms and solemnities been omitted or mistaken? A mere comparison of the certificate of the aldermen of Richmond of February 1816 with the provisions of the statute of 1814 were enough to shew, that the certificate does not shew a compliance with the requisitions of the statute. Indeed, if the court shall go ,the length of holding this certificate good, it may as well say at once, that an acknowledgment of a deed by a feme covert, in exactly the same terms as an acknowledgment by a person sui *juris, will be valid ’ and binding. Passing by the omissions in the certificate to state, that Mrs. Randolph appeared before the magistrates of Richmond in their corporation, and that she, at the time of her appearance before them, acknowledged the deed as her act and deed; the certificate is plainly and materially defective in not stating that she was examined privily and apart from her husband (or privily examined at all) and that she had the deed fully explained to her. These substantial requisites of the statute could' not be complied with by shewing that she knew what land the deed conveyed and to whom; though, by the way, the certificate shews neither. The object of the privy examination is something more: the statute constitutes the justices the advisers and protectors of the feme covert, and makes it their duty to inform her of her rights, and of the consequences of her joining or omitting to join her husband in the deed. If Mrs. Randolph had been informed, that notwithstanding her husband’s deed, she, or her children after her death, would be entitled absolutely to the property, her conduct might have been very different from what it was without such information. A deed conveying land of her own inheritance, might in ignorance of her rights, and of the consequences, have been executed by her for a trivial consideration, or none at all; but when she was well informed, she might have altogether refused to execute or acknowledge it. Now, we cannot collect from this certificate, that any such information was communicated to or possessed by her. Every thing in the certificate may be perfectly true, and yet she may have executed the deed with no other knowledge but that which she derived from her husband; for nothing appears except that she made the acknowledgment separately and apart from him. Her husband might not have been present, and yet she may have only been asked, whether she acknowledged that she had willingly executed the deed and wished not to retract *it, and have given an affirmative answer to that question. For aught that appears, she was not asked, whether or no she was apprised of the contents and purpose of the deed. It has been strenuously argued, that she must have known' every thing which it behooved the commissioners to inform her of — the contents, the nature, the effect, of' the deed. Suppose it possible, or probable, or indeed that it was proved, that she in fact • had such knowledge; still, it does not appear from this certificate, of what is called her privy examination, that she had; unless her mere acknowledgment, that she had willingly executed the deed, and that she wished not to retract it, is sufficient evidence' of her knowledge. Such an inference is not in itself necessary, or even fair. It is the inference which the law would'draw from the mere acknowledgment of the execution of a deed by a person sui jurisi but which, in the case of a married woman’s acknowledgment of a deed, the law repels. The certificate of privy examination, and that duly recorded, is the only evidence of her execution of the deed, which the law respects. It has ho consideration of the personal character of the feme covert; and pays no regard to' her intelligence, prudence or discretion, or, on the other hand, to her ignorance or thoughtlessness: it 'regards' all married women, without discrimination, as sub potestate viri, extends its guardian care to all alike, and requires the same solemnities in every case.
    As to the former statutes on the subject, little light can be thrown on our question by adverting to any of them but the statute of 1792, which immediately preceded that Of 1814, under which this'proceeding was had. The act of 1792 required, that in making the privy examination of a wife to a deed of husband and wife,- the deed should be shewn and explained to her, at the time, by the commissioners; yet it did not require, that the commissioners should certify that they had shewn and explained the deed to her; as was expressly held by *Carr, J., in Tod v. Baylor. But it cannot be doubted, that the statute of 1814 expressly requires, that the justices shall certify, in substance, thg.t the 'feme covert had the deed fully explained to her. By the statute of 1814, then, the certificate in this case is naught. It is useless to en-quire, whether or no if "might have been held good, if the proceeding had been had under the statute of 1792? though, if it were necessary, it might be maintained, that the certificate contained no evidence of a compliance with the requisitions Of the statute of 1792.
    There aré statutory provisions in Pennsylvania'and in Maryland,' made for the same purpose, and substantially'to the same effect; and these have been the subject of frequent adjudications in the courts of those states; and it has been settled, that the certificate of the privy examination of a feme covert, must shew a' compliance with the requisitions of the law in all particulars. *See the cases upon the Pennsylvania statute; Watson’s lessee v. Bailey & al., 1-Binney 470; Evans v. The Commonwealth, 4 Serg. & Rawle 272; Watson v. Mercer & al., 6 Id. 49; Fowler v.'M’Clurg & al., Id. 143; Jourdan v. Jourdan, 9 'Id. 268; Steele v. Thompson, 14 Id. 84, 92; Jamison v. Jamison, 3 Whart. 457; Cases upon the Maryland statute, Webster’s lessee v. Hall, 2 Har. & M’Hen. 19; Jacob’s lessee v. Kraner, 1 Har. & Johns. 291; Peddicourt v. Rigges, Id. 293; Hawkins v. Burress, Id. 513; Corporation &c. v. Hammond, Id. 580; Heath v. Eden, Id. 751.
    The registry of the certificate, in our case, was irregular. The statute of 1814 requires, that the certificate of the privy examination of a feme covert to a deed of husband and wife, shall be entered in the book of récords immediately below and following- the record of the deed. But, in this instance, the record of the certificate was detached from the record of the deed.
    Eeigh, in reply.
    The statute of Pennsylvania is like our statute of 1792: the Pennsylvania statute requires that the judge or justice, in taking the privy examination and acknowledgment of a feme covert, shall read or otherwise make known the full contents of the deed to her; and our statute of 1792, that the dee'd should be shewn and explained to her by the justices; neither statute requiring^ in terms, that the certificate of the privy examination and acknowledgment should shew upon its face that the wife was informed o'f the contents and purpose of the deed. ■ It is obvious, that the decisions of this court upon our statute, are contrary to the decisions of the courts of Pennsylvania upon their law: these, therefore, are of no authority here. In 1826, after the judgment in Watson v. Mercer & al. in the supreme court of Pennsylvania, the legislature of that state passed an act curing any informality or omission in setting forth the particulars of the acknowledgments of femes covert in the certificates thereof; though this provision *'was confined to cases occurring before the 1st September 1826. See Watson & al. v. Mercer, 8 Peters 88. The Maryland cases that have been cited are yet more clearly irreconcilable with the adjudications of this court. As to the objection to the registry of the certificate of privy examination in the case at bar, it does not affect the merits: for, if this court shall affirm the judgment of the circuit superior court, on the single ground,' that the registry of the certificate of the privy examination was not entered immediately below and following the deed, a new registry of the deed, and of the certificate immediately subjoined, may even now be made, and that will perfect Hairston’s title, which will prevail in a new ejectment.
    
      
      Tlarned Women — Deed—Certificate of Privy Examination. — Unless the certificate of the privy examination of the wife shows that all the requirements of the statute have been substantially complied with, tne deedisvoidas to her. And a compliance with one requirement of the statute, by no means implies a compliance with another. In support o.f this general proposition, see the principal case cited in Leftwich v. Neal, 7 W. Va. 573; Watson v. Michael, 21 W. Va. 573; McMullen v. Eagan, 21 W. Va. 244; Laughlin, etc., Co. v. Fream, 14 W. Va. 334; Bartlett v. Fleming, 3 W. Va. 164; Laidley v. Central Land Co., 30 W. Va. 512, 513, 4 S. E. Rep. 709; Grove v. Zumbro, 14 Gratt. 514; Bolling v. Teel, 76 Va. 495; Hurst v. Leckie, 97 Va. 563, 34 S. E. Rep. 464. But see Pollard’s Supplement, ch. 103, § 2298 a.
      Same — Same—Defective Execution — Relief in Equity. —The principal case is cited in Wynn v. Louthan, 86 Va. 947, 11 S. E. Rep. 878, for the proposition that the mode prescribed by statute, whereby married women may part with real estate, or any interest therein, is specific, imperative, and indispensable, allowing of no deviation; and no defective execution of a deed of a feme covert can be set up, cured or affected, by a court of equity! See foot-notes to Grove v. Zumbro, 14 Gratt. 501; Countz v. Geiger, 1 Call 190.
      Case Distinguished. — Tod v. Baylor, 4 Leigh 498, is distinguished from the principal case, because, as the statute then was, it was unnecessary that the certificate should show, that the “deed was.explained to the wife,” as the statute did not, in terms, require it.
      Same — Same —Same—Same — Parol Evidence.And as to the .point that parol evidence is inadmissible to prove or disprove the privy examination of .a, married .woman, or in any manner to affect the certificate of such examination, see the principal case cited in First Nat. Bank v. Paul, 75 Va. 601; Hurst v. Leckie, 97 Va. 562, 34 S. E. Rep. 464.
      ' See the principal case .cited in Hockman v. McClanahan, 87 Va. 39, 12 S. E. Rep. 230.
    
    
      
      See the statutes of 1674, act 7, 2 Hen. Stat. at large, p. 317, 1705, ch. 21 ; 3 Id. 319, 1710, ch. 13, § 3 ; Id. 517, 1734, ch. 6, § 7; 4 Id. 400, 1748, ch. 1, § 5, 6; 5 Id. 410.
      The provision of the statute of 1785, ch. 62. incorporated in the statute regulating conveyances of 1792, Rev. Code of 1794. ch. 90, § 6 ; Pleasant’s Edi. p. 157, 8, was in these words: “When husband and wife.have sealed and delivered a writing- purporting to be a conveyance of any estate or interest, if she appear in court, and being examined privily and apart from her husband by one of the judges thereof, shall declare to him that she did freely and willingly seal and deliver the said writing to be then shewn and explained to her, and wishes not to retract it, and shall before the said court acknowledge the said writing, again shewn to her, to be her act; or if before two justices of the peace of that county in which she dwelleth if her dwelling be in the U. States of America, who may be empowered by commission to be issued by the clerk of the court wherein the deed ought to be recorded to examine her privily and take her acknowledgment, the wife being examined privily and apart from her husband by those commissioners, shall declare that she willingly signed and sealed the said writing, to be then shewn and explained to her by them, and consenteth that it may be recorded, and the said commissioners shall return, with the commission and thereunto annexed, a certificate under their hands and seals of such privy examination by them and of such declaration made and consent yielded by her; in either case, the said writing, acknowledged also by the husband or proved by witnesses to be his act, and recorded together with such her privy examination and acknowledgment before the court, or together with such commission and certificate, shall not only be sufficient to convey or release any right of dower thereby intended to be conveyed or released, but be as effectual for every other purpose as if she were an unmarried woman.’’
      The statute of 1814-15, ch. 28, § 3, Sess. Acts, p. 76, provided, “That it shall not be necessary to obtain a commission from the clerk of the court of the county or corporation wherein any conveyance executed as aforesaid” Lby husband and wife] “ought to be recorded, to take the acknowledgment and. privy examination of any feme covert touching the same: and that it shall be lawful for any two j us-tices of the peace in any county or corporation, within the U. States or the territories thereof, within which such feme covert may be, to examine her privily and apart from her husband respecting the said conveyance, and to take and certify her acknowledgment thereof to the following effect: ‘-county for corporation] to wit: We A. B. and C. D. justices of the peace in the county (or-corporation] aforesaid in the state for territory] of -, do hereby certify, thatE. P. the wife of G-. H., parties to a certain deed for the conveyance of real estate to J. K. bearing date on the-day of- and hereto annexed, personally appeared before us in our county I or corporation I aforesaid, and, being examined by us privily and apart from her husband, and having the deed aforesaid fully explained to her, she the said E. P. acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it. Given under our hands and seals &c. ’ The privy examination and acknowledgment so taken and certified shall be admitted to record in any court wherein the deed U> which it is annexed may be recorded, and shall, be entered in the book of records immediately below and following the record of the said deed: and when so recorded, shall be effectual in law to pass the right of dower or other interest in real estate of such feme covert, in the same manner as if such privy examination and acknowledgment had been taken and Certified by virtue of a commission issued in pursuance of existing laws.”
      So much of the statute'of 1792 as remained unaltered by that of 1814, and the amendments made by the latter statute, were incorporated at the revisal of 1819 into one provision, with some trivial amendments; 1 Rev. Code, ch. 99, § 15, p. 365, 6. — Note in Original Edition.
    
    
      
      The provisions of the statute of Pennsylvania are quoted in the case of Watson’s lessee v. Bailey & al., 1 Binney 470. A deed of husband’ and wife' is to be executed by the Husband and the wife; and, after such execution, they are to áppear before one of
      tbe judges of the supreme court, or before any justice of the court of common pleas of the county where the lands lie, and acknowledge the deed, which judge or justice shail take such acknowledgment; “in doing whereof, he shall examine the wife separately and apart from her husband, and shall read or otherwise make known the full contents of such deed or conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily and of her 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, every1 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 sole and not covert at the time of such sealing and delivery.”
      The provisions of the statute of Maryland, as to this particular, may be seen in Webster’s lessee v. Hall, 2 Har. & M’Hen, 19. They require ‘ "that the feme shall be privily examined out of the hearing of her husband, whether she doth make her acknowledgment of the same, willingly and freely, and without being induced thereto by fears or threats of, or ill usag'e'from, her Husband, or féar of his displeasure” &c. — Nóte in Original Edition.
    
   ALLEISÍ, J.

The directions of the statute of 1814 (incorporated in the general statute of conveyances at the 'revisal of 1819) touching the acknowledgment of deeds by femes covert, are plain and explicit. The certificate of the justices must shew, that the feme personally appeared before them: that she was examined privily and apart from her husband, and having the deed fully explained to her, she acknowledged it to be her act and deed, and declared she had willingly signed, sealed and delivered the same, and that she wished not to retract it. It is conceded, that though the form of the certificate is given, if it is to the same effect, though not in the same words, it is sufficient. But the certificate must shew, that every' thing was done, which is required by the law to be done. In the language of President Tucker in Tod v. Baylor, ‘ ‘Though we do not require the certificate to be in the express language of the law, neither do we dispense with any part of the law. We only consider the language used, as if it was the very language of the law.” The certificate, in the case under consideration, varies from the form prescribed, in several respects; but enough appears upon its face, to shew *that the law was substantially complied with except in one particular: the justices do not certify that the deed was fully explained to the feme, nor is there any thing in the certificate from which, in my opinion, we are authorized to infer, that at the time of the acknowledgment of the deed she had knowledge of its contents. It has been argued with much ingenuity, that, as it appears from the certificate, that she acknowledged she had willingly executed said deed on her part, that implies a consent, and that she could not consent to that of which she was ignorant. The argument strikes me as more specious than sound. We can easily imagine that a wife might be readily brought to yield her consent to an act of this kind desired by her husband, though ignorant of its character. But with the plain requisitions of the statute before us, such speculations are unnecessary. At common law, she could not convey. The statute points out a mode by which a valid conveyance may be made. It is an innovation on the common law, and its terms must be substantially complied with. By it, the certificate must in some form shew, not only that she acknowledged the conveyance, and that she willingly signed, sealed and delivered the same, and wished not to retract it, but that it was explained to her. The explanation is to be made, that she may have knowledge of the contents; but if the acknowledgment implies consent, and consent implies knowledge, then the simple acknowledgment would have been sufficient, and the other requirements would be superrogatory. The case of Tod v. Baylor was relied on as an authority in favour of this certificate. It arose under the act of 1792. That act provided, that the wife being examined privily and apart from her husband by the commissioners, should declare, that . she willingly signed and sealed the said writing, to be then shewn and explained to her by them, and consents to its being recorded; and that the commissioner should return a certificate of such '“'privy examination, and of such declaration made and consent yielded. That statute did not, in terms, require that it should appear in the certificate, that the* deed was explained to her. And upon this construction of the law, Judge Carr based his opinion : “It is clear,” he says, “the commissioners arediiected to shew and explain the deed to her, on her privy examination; but this need not be certified; for the law expressly limits the certificate to the privy examination, the declaration, and the consent.” Judge Cabell gave no opinion, nor did Judge Brooke as to this point. Tucker, P., in reviewing the statute, seems to concur with Judge Carr as to what must appear on the certificate. The words “to be then shewn and explained to her,” he remarks, ‘ ‘stand out, as it were, from the rest of the clause, and seem merely directory. ” In another part of his opinion, he states that her knowledge of the nature of the act done, should appear from the certificate; and then proceeds to argue that the certificate there, did shew her knowledge of the nature of the act done. It appeared from the certificate, that she acknowledged the conveyance of the land contained in the deed ; and how, he asks, could the commissioners certify that fact, unless she knew that that deed did convey that land? It was by reference to the land, the precise quantity, to the fact that that deed conveyed that quantity, that the wife’s knowledge of the nature of the act done appeared on the face of the certificate. Take the case either way, it is no authority for the proposition now contended for. Either the act of 1792 did not require the fact to appear, as Judge Carr held, and therefore the certificate was sufficient; or if it did require that her knowledge of the act done .should appear, as may be implied from one part of the president’s opinion, the certificate shewed such knowledge. But he did not’maintain, that such knowledge of the nature of the act done would have appeared, if the commissioners had merely certified that the deed was acknowledged *before them. In that case, they 1 did certify her acknowledgment of the conveyance, that it was done freely and voluntarily, without the threats or persuasions of her husband, and that she was willing the same should be recorded; yet it was not upon any of these expressions the judge predicated her knowledge of the act done: the certificate went further, it certified her acknowledgment of the conveyance of the very land contained in the deed, and from this her knowledge appeared on the face of the certificate. The statute of 1814 requires, in terms, that the certificate shall shew, that the deed was explained to her. But here, nothing but a simple acknowledgment of the deed appears. The case of Tod v. Baylor, considered under another aspect, is authority in support of the view I take of our existing law. The statute of 1792 provided that where husband and wife had sealed and delivered a writing, — and the wife appeared in court, and on her privy examination, she should acknowledge she had sealed and delivered &c. but if she should appear before commissioners, then she should declare, she had willingly signed and sealed said writing. At common law, the sealing and delivery are the essence of the execution, and constitute the deed. The statute in the commencing clause so treats it— ‘‘where husband and wife have sealed and delivered a writing,” and makes the acknowledgment of sealing and delivery, if made in court, sufficient. But when it comes to provide for an acknowledgment before commissioners, another term was inserted; she was to declare she had signed and sealed. In Tod v. Baylor, one of the deeds was not signed, and Judges Brooke and Tucker held that signing could not be dispensed with, against the express language of the statute; and Judge Carr, though he doubted on this point, yielded to the opinion of his brethren. So, in this case, the certificate must in effect shew that the deed was explained; acknowledgment alone was not considered by the legislature *as shewing this, or they would not have required it in addition the acknowledgment; nor, in Tod v. Baylor, was it held to amount to knowledge of the nature of the act done. How, then, (in the language of the judges in that case, when treating of the signing,) can we dispense with the express language of the statute?

There is good reason for requiring a substantial compliance with all the requisitions of the statute. The statute of fines, 18 Ed. 1, provided, that “if a woman covert be one of the parties, then she must.be examined by four of said justices, and if she doth not assent thereunto, the fine shall not be levied.” Coke, in his commentary on this statute, 2 Inst. 514, says, “the examination must be solely and secretly, and the effect thereof is, whether she be content of her own free will, without any menace or threat, to levy a fine of these parcels, and name them under her, every thing distinctly contained in the writ, so as she perfectly understand what she doth.” This statute had received, therefore, a construction in practice, which required an explanation to the wife, and her knowledge of the nature of the act done. The first of our statutes, that of 1674, after reciting that the legal way of passing estate where the inheritance is in a feme covert, was by fine and recovery, but we having no fines and recoveries in this country, it was usual to take the acknowledgment of the husband and wife in the general and county courts, proceeds to enact that such acknowledgment should be good and effectual against the husband and wife, as if the same had been done by fine and recovery. The same reference is made to the fine and recovery in subsequent .statutes down to the statute of 1748 inclusive. The examinations under most of those statutes being made in court, the practice no doubt conformed to that which was required under the statute of fines. It was unnecessary to give more specific directions, as the courts acquainted *with the practice which that statute had given rise to, would, acting under a similar statute, conform to it. But when the commission was authorized, the law was made more specific. The commission pointed out their duties to the commissioners; and the3- were required to shew by their certificate, a performance of such as were deemed most essential. The statute of 1814 dispensed with the commission. The law itself is a commission to anjr two justices to make the privy examination and take the acknowledgment of the feme; not only to any two justices of this commonwealth, but of the whole union. The statute gives the form of the certificate, and requires it to be in that form, or to that effect. The certificate they are required to make, points out to the justices the duties they are to perform. It comes in the place of the knowledge the courts were presumed to possess of the practice under the statute of fines, and of the instructions to the commissioners, communicated by the commission. Whilst a compliance with all the terms of the law, is required to appear on the face of the certificate, we have a reasonable assurance that the leading object of the statute will be secured; that is, the providing the wife with an opportunity, after a full understanding of the nature of the act she is about to do, of exercising her own free will.

The certificate in the present case does not, in terms, state that the deed was explained to the wife; and there is nothing on the face of it to the same effect, which justifies the inference that it was explained, or that she had knowledge of the nature of the act she was doing; on the contrary, every word of the certificate may be true, and yet she may never have read the deed, or heard its contents. Therefore, I think, the certificate is defective and the deed not valid as to her.'

STANARD, J., concurred.

*CABEEL, J.

In the case of a deed executed by a person not under the disability of coverture, the law infers, prima facie, that the party executing it had sufficient knowledge of the nature and effect of the deed, and that he acted freely and voluntarily. Therefore, nothing farther is required, than proof of the mere execution of the deed. But the law makes no such inference in the case of married women, who, being under the power and dominion of their husbands, may sometimes be coerced to that which they would not willingly do; and, even where there is no coercion, they may be deceived as to the nature and effect of the act proposed to be done, by the representations of their husbands, in which they, generally, repose an unsuspecting confidence. To guard the wife against these dangers, the law is not satisfied with her mere acknowledgment of the deed. Such acknowledgment does not and ought not to imply, that she acted either voluntarily, or with proper knowledge. It may, in fact, have been made in terror of her husband, or in ignorance of the nature and effect of the deed. The law, therefore, has wisely ordained that, to give validity to the deed of a married woman, it must appear, that in executing the deed, she acted both understanding^ and willingly.

The certificate before us is fatally defective. It does not appear that Mrs. Randolph was acquainted with the nature and effect of the deed. The certificate does not state, that the deed was explained to her by the justices; nor does it state any circumstance, from which her knowledge of its contents can be fairly inferred.

The judgment must be affirmed.  