
    Tod v. Baylor.
    May, 1833.
    Deeds — Married Women — Privy Examination — Certificate — Sufficiency.—A certificate of a privy examination of a feme covert to a conveyance of real estate by husband and wife, before commissioners in the country, under the statute of conveyances of 1792, states, that the feme made her acknowledgment of the conveyance of the land contained in the conveyance thereto annexed, freely and voluntarily, and that she was willing the same should be recorded, without stating that the feme declared that she had willingly signed and sealed the deed, and without stating that it was shewn and explained to her by the commissioners: Held, if the feme had in fact signed the deed, such certificate of privy examination is substantially a compliance with the requisitions of the statute, and good, and the feme is bound by the deed; but if the feme had not signed the deed, such acknowledgment, so certified, is not sufficient to make the deed binding on her, within the requisitions of the statute.
    Dower — Lands Aliened by Husband — Time of Valuation. —upon a bill in equity by a widow against the alienee of her husband, for dower of lands aliened by the husband in his lifetime, the widow is dowable of the lands, as of the value thereof at the time of alienation, not at the time of assignment of dower; she is entitled to no advantage from enhancement of the value, either by improvements made by the alienee, or from general rise in value, or from any cause whatever.
    Same -Same -Account of Profits.--Upon a bill in equity by a widow against an alienee of the husband for doyver of lands sold, she is not entitled to an account of profits from the death of the hus band, but only from the date of the subpoena in the cause; otherwise, upon a bill against the heir.
    John Baylor deceased, by deed, in his lifetime, dated the 25th November 1801, in consideration of 2550 dollars, sconveyed to George Tod, in fee simple, a parcel of land (300 acres) in Caroline. This deed purported, in the body of it, to be the deed of Baylor and of Anne his wife; but the husband only signed and sealed it; and though there was another seal to it, put there for the wife, she did not sign the deed.
    And by another deed, dated the 12th October 1803, purporting to be the deed of Baylor and wife, and signed and sealed by them both, in consideration of 2624 dollars, they conveyed to Tod, another parcel of land (320 acres) in the same county.
    Commissions for the privy examination of the wife as to both the deeds, were issued from the county court of Caroline, and directed to two justices of the peace for the county. The commission as to the first deed of November 1801, recited that the deed has been executed by the husband and Anne the wife, and that the wife could not conveniently travel to the county court to make acknowledgment thereof; and empowered the commissioners to receive the acknowledgment, which the wife should be willing to make before them, of the conveyance contained in the deed, which was annexed to the commission ; and then proceeded in these words — “And we do, therefore, command you that you, do personally go to -the said Anne, and receive her acknowledgment of the same, and examine her privilyr and apart from the said John Baylor her husband, whether she doth the same freel}' and voluntarily, without his persuasions or threats, and whether she is willing that the same shall be recorded in our said county court: and when you have received her acknowledgment and examined her as aforesaid, that you distinctly certify us thereof in our said court, sending then there the said indenture and this writ.” And the form of the commission as to the last deed of October 1803, was exactly the same, mutatis mutandis.
    The certificate of the justices who executed the commission as to the first deed, returned under their hands and *seals, indorsed on the commission, was in these words; “Agreeably to the power to us granted by the within coro-mission, we have this 10th August 1802, personally gone to Mrs. Anne Baylor, and examined her privily and apart from her said husband, — who makes to us her acknowledgment of the conveyance of 300 acres of land contained in the indenture hereto annexed, freely and voluntarily, without the threats or persuasions of her husband, and that she is willing the same shall be recorded in the county court of Caroline.” And the certificate of the justices who executed the commission as to the last deed, was the same, mutatis mu-tandis.
    Both the deeds, with the commissions for the privy examination of the feme covert, and the certificates of privy examination, were duly recorded.
    John Baylor, the husband, died in September 1824. And in 1827, his widow, Mrs. Baylor, exhibited her bill in the superiour court of chancery of Fredericksburg, against George Tod, the purchaser of the two parcels of land in the deeds convejred; alleging, that neither of the deeds was so executed by her according to the provisions of the statute then in force, as to make the same binding on her; and praying, therefore, that dower might be assigned her of both parcels of land; and an account of the rents and profits from the death of her husband.
    Tod, in his answer, admitted the facts, but insisted, that the deeds were both duly executed by Mrs. Baylor, and that she had thereby relinquished her right of dower in the lands.
    The chancellor, by an interlocutory decree, appointed and directed commissioners in the countr3r, with the assistance of the surveyor of Caroline, to lay off and assign to Mrs. Baylor, one equal third part of both the parcels of land in question, respectively, having regard to quantity and *quality, to be held by her for her dower in the lands: and he ordered a commissioner of the court to take and report an account of the profits from the death of John Bajdor, the husband, to the time when the dower should be assigned to the widow, and also an account of all the permanent improvements made by Tod on the lands.
    The commissioners in the country, reported that they had proceeded, in pursuance of the decree, “to assign to Mrs. Baylor, 140 acres of land, by metes and bounds, as laid down in the plot [returned with the report], being, in their estimation, one third of the parcel of 300 acres of land conveyed by John Baylor to the defendant, by the deed of November 1801, having regard to quantity and quality” — and also “to assign to her 110 acres of land, by metes and bounds as laid down in the plot, being, in their estimation, one third, according to quantity and quality, of the parcel of land conveyed by Baylor to the defendant, by the deed of October 1803, ’ ’ which parcel was found to contain 328 acres.
    The commissioner of the court reported an account of the profits, and an account of the value of the permanent improvements that had been made by Tod. He stated the annual value of the whole of the lands, to be 280 dollars; and that the aggregate profits of the whole, at that rate, for the time from the death of Baylor to the assignment of dower to his widow, was 1068 dollars. And he stated the value of the permanent improvements made by Tod, to be 1270 dollars. But it did not appear from the report, whether in his estimate of the profits, he stated the yearly value of the land without reference to Tod’s improvements, or the yearly value as enhanced by those improvements.
    No exceptions being taken to either report, the chancellor, on the final hearing, approved and confirmed them ; and decreed, according to the first report, that Tod should surrender to the widow, the two parcels of land laid off for her dower, and shouid pay her 3S6 dollars, being one third of the amount of profits of the whole of the lands, as stated in *the second report. From this decree, Tod appealed to this court.
    The cause was argued here, by Stanard for the appellant, and Heigh for the appellee.
    I. Stanard insisted, that the court of chancery ought not to have entertained jurisdiction of the case; for the foundation of the jurisdiction of the court, in matters of dower, was the necessity of its aid for a discovery of title papers, and for removing impediments to her rendering her legal title available at law; and whenever, on a bill in equity for dower, doubts have arisen as to the legal title to dower, the constant practice had been to put her to bring her writ of dower. 1 Fonb. Fq. 19, in notes; 1 Rop. on' Prop. Husband and Wife, 445, 6; Curtis v. Curtis, 2 Bro. C. C. 620. In the present case, the only question was a mere point of law; namely, whether the wife had so joined in the conveyances of her husband to Tod, as to make them her own, and so to preclude her from demanding dower? She ought to have been sent to a court of law, to try that question and establish her right.
    Heigh answered, that however narrow were the grounds on which the court of chancery originally assumed jurisdiction in matters of dower, the jurisdiction was now established on principles that embraced all cases of dower without exception ; and this, he said, appeared from the authorities cited for the appellant. It was true, that the practice of the court of chancery in England, when doubts arose as to the legal title of the widow to dower, was to put - her to bring her action at law to establish her title, retaining her bill, however, in order to give her relief if she should establish her right at law; a practice that might be proper enough there, but there was no reason for such a practice in our courts, and none sud'h was known here.
    II. Stanard contended, that the appellee was a party to both the deeds of her husband conveying the lands in question to Tod; and thereby relinquished her possibility of *dower. That she intended to join in the deeds, there could be no doubt; the only question was, whether she had so executed her purpose, as to make the deeds binding on her, according to the provisions of the statute of conveyances of 1792? She actually signed,, sealed and delivered the second deed of October 1803. As to the first deed, that of November 1801, she did not, indeed, sign, it; but her husband signed, sealed and delivered it, and there was another seal put to it, which was intended to be hers, and. which she recognized as hers in the acknowledgment of the deed made by her to the commissioners; and the very act of acknowledging it and consenting that it should be recorded, was a delivery of it. Therefore, this deed also must be taken to have been sealed and delivered by her, according to the provisions of the statute. Then, with regard to the commissions for her privy examination, and the certificates of the privy examination returned by the commissioners, which were precisely alike in respect to both deeds, he maintained, that, if they did not comply in words with the requisitions of the statute, yet they conformed with them in substance; Hanghorne v. Hobson, ante 224; Harvey v. Borden, 2 Wash. 156; Ware v. Cary, 2 Call 263. And he argued, that the statute prescribed the duty to-be performed by the commissioners in the privy examination of a feme covert, but did not require that they should state, in their certificate, all the particulars of such privy examination; and there being not the least reason here, to suspect unfairness in the transaction, it ought to be intended; that the commissioners performed their duty in the manner required by law. The extreme nicety and rigor, which would avoid the privy examinations in this case, would be alike applicable, doubtless, to very numerous cases, and would shake most of the land titles in the country derived from femes covert.
    Heigh said, it was clear that the appellee had not executed the first deed of November 1801, within the meaning of the statute of 1792; for the statute provided for the privy examination of a feme covert only in respect to deeds sealed *and delivered by husband and wife; and if the sealing and delivery by the wife might properly be inferred from her acknowledgment of the deed on privy examination, the provision that she should have sealed and delivered the deed, was nugatory and idle; since her acknowledgment of the instrument was required in every case, in order to make it binding on her; and if that were tantamount to sealing and delivery by her, it had been enough to require the acknowledgment. But the statute expressly required, that the feme covert should declare that she had willingly signed and sealed the deed: the signing, then was certainly necessary. As to the commissions for the privy examination of the feme covert in this case, he had thbught that such commissions, under the statute of 1792, ought to prescribe to the commissioners the essential particulars of the duty which the statute required them to perform, and that if the commission omitted any of them, i was fatally defective: but the judgment in Langhorne v. Hobson obviated all his objections to these commissions; these being in the same form with the commission in that case, and the objections to the commission there having been disregarded, though very strenuously urged. But, certainly, the commissioners were bound to perform the duty required of them by the statute, in all essential particulars, and to certify the execution of the commission to the court. The manner and particulars of the execution of it, could only appear by the certificate thereof: that was to be recorded, in order that it might thereby appear, whether or no the feme covert had been duly examined, and had duly acknowledged the instrument. Now, the statute required that the feme covert, being privily examined by the commissioners, should ! ‘declare that she willingly signed and sealed the writing, to be then shewn and explained to her.” It was plainly intended that the deed should be shewn to the wife, in order to identify it; that she should be examined as to the identical writing; and that she should acknowledge her sig-ning and sealing of that: but here, the commissioners only certified, that the wife acknowledg-ed x'“her conveyance of the lands contained in the deeds,” not these identical conveyances thereof, nor that she had signed and sealed any conveyance; and though they added that the deeds were annexed to their certificates, such annexations might have been and (for aught that appeared) were made, after the privy examinations were completed. The ■statute required, not only that the instrument should be shewn to the feme covert, but that it should be explained to her; that the commissioners should inform her of its contents and effect: it constituted them the judicial advisers of the feme covert as to her rights, in order to guard her against a surrender of them through ignorance or weakness: it intended to substitute them when the privy examination was made in pais, in place of the judges when it was made in open court. In Langhorne v. Hobson, the commissioners certified that they read the deed to the feme covert. In the present case, they did not certify that the deeds were read to the feme covert, or that they were in any way explained to her, or even that they were shewn to her that she might get a knowledge of their contents for herself; and, for aught that appeared, the acknowledgment which they said she made before them, might have been made in perfect ignorance of the contents, purpose or effects of the deeds. If such privy examinations as these were good and effectual, it vrould be hard to imagine any that would be faulty and inoperative.
    III. Stanard insisted, 1. that if the ap-pellee was entitled to dower of the lands in question, she was not entitled to be endowed thereof as of the increased value produced by the permanent improvements made by the purchaser, Tod; and 2. that she ought to have been endowed of the lands as of the value at the time of the alienation, not as of the increased value, produced by the appreciation of the property from any cause whatever, at the time the dower was assigned. He cited Harg. Co. Litt. 32a, note 8, from Hale’s MSS. 1 Rop. on Prop. 347; 4 Kent’s Comm. 64.
    Leigh answered, 1. that it did not appear, that, in the assignment of dower to the appellee, the commissioners had *given her any benefit from the permanent improvements made by Tod; and it was plain enough that they did not: for the attention of the parties had been drawn to the subject of Tod’s improvements, since the court had ordered an account of them, and yet no exception was taken to the report of the assignment of dower on this or indeed any other ground. 2. He admitted, that the widow was not entitled to take any advantage of any increase of value produced by im£>rovements made by the purchaser; but he contended, that she was entitled to the advantage of any increased value of the land produced by general causes, unconnected with the improvements made by the purchaser. This was chancellor Kent’s opinion, upon a review of the authorities on the point, in his commentaries, vol. 4, pp. 65, 6, 7, and in a note there, he explained that that was the extent to which he intended to go in Hale v. James, 6 Johns. Rep. 258. The point v^as most fully and learnedly discussed by Tilghman, C. J., in Thompson v. Morrow, 5 Serg. & Raw. 289, and by Story, J., in Powell v. M. & B. Man. Co., 3 Mason 347. And they held, that the widow was indeed to take no advantage of any increase of value produced by improvements made by the purchaser, but throwing those out of the estimate, she was to be endowed according to the value at the time of the assignment of dower; and, moreover, that there was never any rule of the common law to the contrary. It were strange if there had been. The widow must sustain the loss in case of depreciation of the lands; yet the doctrine contended for denied her any advantage from the rise in value. Besides, the right of dower was a right to one third of the land in kind, of which the husband was seized at any time during the coverture; audit was admitted, that the husband could not by his alienation, bar her of that right: but, according to this doctrine, he might fix conclusively the price of her right of dower, which yet he could not sell, and bind her to iake land to the value of one third of the price for which be thought proper to sell.
    *IV. Stanard objected, that the decree gave the widow profits from the death of her husband; which, he said, she certainly was not entitled to demand against Tod, a purchaser from the husbar.d in his lifetime. The common law gave the widow no damages. The statute of Virginia, 1 Rev. Code, ch. 107, § 4, p. 403, taken from the statute of Merton, 20 Hen. 3, ch. 1, gave the widow damages only when she was deforced of her dower of lands whereof her husband died seized; and equity, following the law, could give her the profits only in that case.
    Leigh said, the courts ox chancery wetn: further than the courts of law in respect to the profits of dower lands. Curtis v. Curtis, 2 Bro. C. C. 620; Mundy v. Mundy, 4 Id. 294; Oliver v. Richardson, 9 Yes. 222. In Curtis v. Curtis, a widow "filed a bill against the heir for dower; she and the heir both died pending the suit; and it was admitted that damages were not recoverable at law against a party who was dead; yet the court decreed the profits to the widow’s representative; and it was expressly said, that in decrees for dowresses, courts of equity giye a remedy beyond what courts of law can give; 2 Bro. C. C. 628. He also cited 1 Rop. on Prop. 447, 8, 9, where it is said, that it is the course of the courts of equity to assign the widow her dower, and universally to give her an account of profits from the death of her husband; and that her right to an account of them i'n equity, may be inferred against heir or alienee, or their representatives.
    
      
      Acknowledgments — Married Women — Certificate— Compliance with Statute. — The certificate of acknowledgment of a married woman to a conveyance of real estate need not show a literal compliance with the statute; where there has been a substantial compliance therewith, it is sufficient. To this effect, the principal case is cited with approval in Hockman v. McClanahan, 87 Va. 37, 12 S. E. Rep. 230; Virginia, etc., Co. v. Roberson, 88 Va. 118, 13 S. E. Rep. 350; foot-note to M’Clanachan v. Siter, 2 Gratt. 280; Hurst v. Leckie, 97 Va. 563, 34 S. E. Rep. 464: Grove v. Zumbro, 14 Gratt. 501, 514, ana foot-note, Hairston v. Randolphs, 12 Leigh 459: Leftwich v. Neal, 7 W. Va. 573; Blair v. Sayre, 29 W. Va. 610, 2 S. E. Rep. 100. See the principal case also cited in Hairston v. Randolphs, 12 Leigh 462, 463.
      In Hairston v. Randolphs, 12 Leigh 445, 461, and foot-note, the principal case was distinguished from the case at bar on the ground that two cases were governed by different statutes, and that the statute governing the principal case did not require that the certificate should show that the “deed was explained to the wife.” To the point that the law, as it stood when the principal case was decided did not require that it should appear from the certificate that the deed was shown and explained to the wife at the time of her privy examination, the principal case was cited also in Groves v. Zumbro, 14 Gratt. 516; Watson v. Michael, 21 W. Va. 573; Laidley v. Central Land Co., 30 W. Va. 512, 513, 4 S. E. Rep. 709.
      Por further information on this subject, see mon-ographic note on “Acknowledgments” appended to Taliaferro v. Pryor, 12 Gratt 277.
    
    
      
      Dower — Lands Alienated by Husband — Time of Val-nation. — Tbe principal case was cited in Verlander v. Harvey, 36 W. Va. 377, 15 S. E. Rep. 55, as establishing the principle that, where land is aliened by a hnsband in his lifetime, the value of the dower of his widow, when commuted, should be estimated at the time of the alienation or sale, and not at the time of the death of the husband.
    
    
      
      Same — Same—Right of Widow to Mesne Profits.— See the principal case cited in Thomas v. Gammel, 6 Leigh 13, 14, and foot-note-, and distinguished in Macaulay v. Dismal Swamp Land Co., 2 Rob. 530, 534.
      See further on this subject, monographic note on “Dower’ appended to Davis v. Davis, 25 Gratt. 587.
    
    
      
      The statute of 1752, 1 Old. Rev. Code, ch. 90, § 6, Pleasants’s edi. pp. 157, 8. A copy of it Is g-ivenin a note In the report of Langborne v. Hobson, ante 225. —Note in Original .Edition.
    
   CARR, J.

The directions of the statute of 1792, as to the privy examination of femes covert by commissioners in the country, touching their, acknowledgments of deeds, seem to me clear and explicit. The commissioners are commanded, 1. to examine the wife privily and apart from her husband; 2. to take her declaration that she willingly signed and sealed the deed, which they are then to shew and explain to her; 3. that she consents that it may be recorded. And the commissioners are to return with their commission, *a certificate, 1. of such privy examination; 2. of such declaration made; and 3. of such consent yielded. It was contended strongly, that the certificate must state also, that the deed was shewn and explained to the feme; but this seems to me to be adding to the requisitions of the law. It is clear, that the commissioners are directed 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. Words could not make this plainer, as it seems to me. The certificates are alike in the two deeds before us. They are to the following effect: “We have this day gone to Mrs. Baylor, and examined her privily and apart from her husband’’ (here is the first requisite of the law, the privy examination, clearly stated) “who makes to us her acknowledgment of the conveyance of the 320 acres of land contained in the indenture hereunto annexed, freely and voluntarilythat is, as I understand it, who makes to us her acknowledgment, or declaration, that she freely and voluntarily conveyed the 320 acres contained in the indenture thereto annexed; which, to my mind, is a perfectly substantial compliance with the second requisite of the law, namely, a declaration that she willingly signed and sealed the said writing. The certificate proceeds, “and that she is willing the same shall be recorded in the county court of Caroline:” here is the third requisite. My opinion is, then, that to every reasonable and substantial purpose of the law, this is a good and sufficient certificate.

Upon an examination of the deed of 1801, it appears, that though it purports to be the deed of the wife, and she has thus acknowledged the execution of it, yet she has | never in fact signed it. Upon the general doctrine, that sealing and delivery constitute the deed with the persons sui juris, and that, with a feme covert, the privy examination is the vital principle, I was strongly inclined to consider this deed binding on the widow. But the statute of 1792, by requiring the wife to declare on her examination, *that she willingly signed and sealed the deed, raises some doubt, whether the legislature did not contemplate her signing as necessary ; and two of my brethren think the deed, for want of this, not binding on her. I therefore yield the inclination of my mind on that point.

The next objection taken to the decree is, that it directs the dower to be allotted according to the present value of the land with all its present improvements, instead of the value at the time of alienation. I consider it the clear rule of the common law; that where a husband aliens during coverture, and the widow claims dower in those lands after his death, she shall not be entitled to dower according io the improved value of the land, but must take her dower according to the value at the time of alienation. Fitz. Abr. tit. Dower, § 192; Perk. tit. Dower, § 328; Harg. Co. Litt. 32a, n. 8, citing Hale’s MSS. 1 Rop. on Prop. 346; 4 Kent’s Comm. 64; Humphrey v. Phinney, 2 Johns. Rep. 484; Hale v. James, 6 Johns. Ch. Rep. 258. This doctrine seems to rest on ground similar to that of the recovery of a vendee of land against the vendor, on eviction ; which, on great consideration, we have fixed at the purchase money with interest, in Stout v. Jackson, 2 Rand. 132, and Threlkeld v. Fitzhugh, 2 Heigh 451.

Another objection taken to the decree, is, that the chancellor has given rents and •profits from the death of the husband. I think, in a case of alienation by the husband, this was wrong. At law such profits could be given only as to land of which the husband died seized; and I think equity, which takes jurisdiction, in these cases, only from the superiour convenience of its proceeding, ought in this point to follow the law. But for a fuller view of this subject, I refer to the reasons and authorities which will be stated by the president.

CABRUL, J., concurred.

*BROOKÉ, J.

The statute of conveyances of 1792, requiring that a feme covert shall declare to the commissioners for her privy examination, that she willingly signed and sealed the deed, leaves no ground for a construction that would dispense with that part of the execution of the deed by the feme covert. Although the sealing and delivery of the deed is, by the ' common law, the essence of its execution, and though when the privy examination is before the court of record, that is all that is required by the statute; yet we cannot intend, that sealing and delivery is all the statute requires, when the privy examination is had before commissioners in the country, against the express letter of the statute. It would be doing' great violence to the language of the law, to dispense with signing by _the feme covert. Since seals, except by mere scrolls, have gone out of use, signing- is better evidence of the execution of a deed than sealing with a scroll, which may be at all times forged without the probability of detection. When the privy examination of a feme covert is had before a court of record, the signing by her seems not to be required; yet when it is had before commissioners in the country, the signing may have been required as an indispensable guard against fraud. X think, therefore, that the first deed was not duly executed by Mrs. Baylor, according to the statute of 1792.

As to the second deed, w»hich was signed bj' her, I think the certificate of her privy examination by the commissioners in the country, substantially good and sufficient; and that she has no claim to dower in the land conveyed by that deed. But as to the deed which she did not sign, though the certificate of the commissioners of her privy examination as to it, would also have been sufficient if she had signed it, she is not barred of her dower as to the lands thereby conveyed by her husband by that deed.

Whether she is entitled to be endowed, according to the value of the land at the time of the alienation by her husband, or at the time of the assignment of her dower, is another question. The 4th section of our statute of dower ^certainly does not embrace the case before us. It is, substantially, taken from the statute of Merton, which only provided for the case in which dower is claimed by a feme covert, of lands of which her husband died seized. And this provision was an exception to the rule of the common law in all droitural actions, in which no damages were recovered; and cannot be extended beyond the provision, on any ground of policy or supposed hardship. In truth, in the case before us, it is more than probable, as the value of lands has generally fallen, that the value of the land was much greater at the date of the deed of alienation, than at this time; so that the rule of the common law is a better rule for the feme covert than the rule under the statute. And the rule pf the common law is more consonant with the rule established by this court, in the cases of Stout v. Jackson and Threlkeld v. Fitzhugh; namely, that the value of the land at the date of the warranty, and not at the time of eviction, is the true measure of damages. It would be very hard on the alienee, to subject him to greater damages than he could recover upon the warranty of the husband against the heir, according to the decisions just mentioned. I'or the rule of the common law in regard to such cases as that now before us, I refer to the authorities cited by judge Carr.

On these grounds, I think the decree of the chancellor must be reversed, and the cause remanded for farther proceedings; in which dower is to be assigned to the appellee, of the lands conveyed by the first deed which she did not sign, according to the value at the date of the alienation by her husband, with the rents and profits from the suing out the subpoena in this cause.

TUCKER, P.

The first question in this case, arises on the construction of the statute of conveyances of 1792. Disencumbering that section of the statute, of those words which are not immediately necessary in deciding this question, it provides that “when husband and wife shall have sealed and delivered a writing purporting to be a conveyance *of any estate or interest, if, before two justices who may be empowered by commission to examine her privily and take her acknowledgment, the wile, being examined privily and apart from her husband, 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 said commission, and thereunto annexed, a certificate under their hands and seals of such privy examination and declaration, and consent yielded by her,” then the deed shall be binding on the wife.

According to this statute, the commission ought to recite, that the husband and wife had sealed and delivered a conveyance purporting lo be a conveyance [here setting forth succinctly of what, or otherwise referring to the writing so as to describe it] and should empower the justice to examine her privily and take her acknowledgment of the said writing ; and such commission, without more saying, would be good; for it is in the words of the law. And even if not literally in those words, yet if it be substantially so, it will suffice, or many titles in the country would be shaken. Thus, in the present case, though it is not stated, in terms, that the parlies had sealed and delivered a conveyance, it is stated that “by indenture (which is a writing sealed and delivered) dated the 12th October 1803, thej' had sold and conveyed” an estate &c. This is a substantial compliance, and therefore good.

.Now as to the certificate. The law is not content with the justices merely echoing the commission, by certifying that they had privily examined the wife, and she had acknowledged the writing; but it goes on to prescribe what shall be certified by them. The wife, being examined privily and apart from her husband, must declare that she willingly signed and sealed the writing, to be then shewn and explained to her; and must consent that it be recorded. The justices are then to certify such privy examination (that is, that she was examined privily and apart from her husband) and such '^declaration made (that is, that she willingly signed and sealed the writing) and such consent yielded by her (that is, that it be recorded). Nothing can be more clear than the construction of this clause, except as to the words “to be then shewn and explained to her:” they do not seem, by a literal construction, to require the fact of shewing and explaining the deed to be expressly certified; for they stand out, as it were, from the rest of the clause, and seem merely directory. Yet, as in acts in pais, those presumptions are not usually made, that every thing has been rightly done unless the contrary appears, which are made by law in relation to the transactions of a court, it has been always my impréssion that, in strictness, this matter also must be certified or must in some form appear. If the question was now of the first impression, I should be for construing the statute with very great strictness. It prescribes the mode in which a person may convey, whose power of conveying was before circumscribed to the forms known to the common law. It is an innovation upon that law; it prescribes a form of conveyance unknown to it. It ought, therefore, to have been required to be strictly complied with : a literal compliance would not indeed have been demanded, but a substantial compliance in every thing material. I fear, however, that the practice of the country, ever since the introduction of the commission, has been very far from conforming to the requisitions of the law, with any thing like strictness. The alternative is therefore presented, of abating somewhat of this rigor, or of running the risk of shaking land titles. If the case of dower was alone in question, it would be less important, but conveyances of the maiden land of femes covert would also be involved. Our predecessors, accordingly, seem to have„been cautious in their decisions upon the laws which were the originals of this statute. In Harvey v. Borden, 2 Wash. 156, it did not appear from anj' part of the record, that the commissioners were justices of the peace, as was required by the statute of 1748; they were not so styled in the commission : yet the court overruled *the .objection, judge Roane saying, “the law requires the clerk to direct it to such persons, and he ought-not to be'presumed to have done wrong;’’ and judge Fleming said, “I do not think that we carry the doctrine of presumption beyond its accustomed limits, when we say, that to support this deed we will intend that the law has been obeyed unless the contrary appear.” In Ware v. Cary, 2 Call 263, the names of the justices were omitted; the commission was directed to --- gentlemen justices; it was executed by two persons, who certified “that they acted by virtue of the commission thereto annexed,” but they did not say “directed to us,” nor did they certify that they were justices of the peace: yet the objection was overruled. Influenced by like considerations in the recent case of Langhorne v. Hobson, this court overruled the objections to the commission and privy examination, and ratified the title of the purchaser.

What, then, let it be asked, is essential in the certificate? The answer is, that it should ascertain satisfactorily, in some form or other, those facts which the law deems essential to the transfer of the title of the feme. Those facts are, 1. her privy examination apart from her husband; 2. her knowledge of the nature of the act done; 3. her acknowledgment of the conveyance; 4. her declaration, that that acknowledgment is free and voluntary5; and 5. and last, her consent that it may be recorded. If these facts substantially appear, the certificate is good; and though not certified in so many words, if they satisfactorily appear, it will suffice. Now in this case, it is expressly certified, 1. that the feme was privily examined apart from her husband ; and 2. that she acknowledged the conveyance of the 320 acres of land contained in the indenture thereto-annexed. 3. Her knowledge of the nature of the act she was doing, appears from the certificate that she acknowledged the conveyance of the 320 acres contained in the deed; for how could they certify that fact, unless she knew that that deed did convey thát 320 acres? 4. This acknowledgment was made freely and voluntarily ; and lastly, she consented it should be recorded. *If this certificate be not sufficient, I fear there are few that are so in the commonwealth. I have examined the records of the circuit and hustings courts-here. The following form is that which seems to have prevailed previous to 1819. It was printed at the foot of the printed commission. “Pursuant to the within commission, we did this day examine the-within named A. B. privily and apart from her husband, and made known to her the contents of the annexed indenture, when she acknowledged the same to be her act and deed, declaring to us that she did the same freely and voluntarily, without the persuasions or threats of her said husband,, and was willing the said deed should be recorded.” Here, there is no direct allegation that the deed was shewn to. the feme, or that she acknowledged that she” signed the same.

I am, then, of opinion, that the deed of October 1803, was duly executed to bar the widow’s claim of dower.

I am however of a very different opinion as to the other deed, that of November 1801. Por, though the certificate is the same, the fact is not according to the declaration and acknowledgment. When it is certified, that the feme acknowledged the deed, we may safely imply that she acknowledged that she had signed and sealed it, if upon the face of the deed, she appears to have signed and sealed it. But if the writing be in. fact signed, without being sealed, her acknowledgment would not prove it to be sealed; ánd e converso, if it be sealed without being signed, the acknowledgment cannot justify the inference that it was signed, contrary to the express fact. And although 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 purchaser’s case can certainly be no better for its variance from that express language. Now, if the commissioners had followed the law literally, they would not have certified that the wife declared she had willingly signed and sealed, because she had not signed. Or take it to have been so certified; then it is certified that she had ^signed, when in fact she had not; so that the certificate or declaration is falsified. It was said, indeed, that this word signing has been here introduced inadvertently. JBut of this we are not entitled to judge: ita lex scHpta est. It is more probable, that the legislature considered signing a necessary concomitant of every deed or conveyance. I ana not prepared to dive into its motives, but if it be true at this day, that deeds are in general to be considered good though not signed, I think it is at least fortunate that in relation to femes covert, an exception to the rule may be inferred. It only remains on this part of the subject, to say, that I do not think the acknowledgment of the seal can be an acknowledgment of a signing, or that the insertion of the name of the feme in the body of the deed, can help the case.

The widow is, I think, clearly entitled to dower in the 300 acre tract, conveyed by the deed of November 1801.

In this view of the case the decree must of course be reversed; and, therefore, an examination whether it did nor did not exclude the improvements in the order to lay off the dower, is unnecessary. On that point, I shall only say, that I think the law very clear, that, in laying off the dower, the improvements made by the purchaser, should be excluded from the estimate, except that improvement in the productive character of the soil which arises from the course of husbandry. In like manner, I am of opinion, that the accession of value arising merely from the progress of society, and the general progressive increase in the value of lands consequent upon increasing wealth and population, cannot be thrown into the scale of the purchaser, or diminish the quantity of land to which the widow will be entitled. But on this point my brethren differ from me.

As to the profits: I have always thought, that, as the alienee is not liable at lav? for rents and profits, because the statute of Merton copied in the 4th section of our statute of dower, only gave damages where the widow was deforced of lands whereof the husband died seized, so neither ought she to recover them in equity. It seems to me an absurdity, *tbat in matters of concurrent jurisdiction, there should be different measures of redress in the two courts. It is yet more strange, that when, with a view to affording facilities to the dowress, jurisdiction is entertained of her case, instead of leaving her to her legal remedy against a party claiming a legal title, her remedies should be so vastly enlarged by this assumption of jurisdiction: and it is most of all strange, when the statute limits the damages to one class of cases, and excludes them from another, that a court of equity should repeal or add to the act of the legislature. I do not think there is an adjudged case to justify it, in the case of the alienee. Curtis v. Curtis was cited to prove that equity will go farther than the law in giving a remedy to the dowress: for although at law, the action against the heir as a de-forceor, dies with him in respect to the damages, because it is in the nature of a tort, yet in that case, the demand for profits was sustained though the heir died before the decree. But it is to be observed, that the court proceeded mainly on the Idea that the dowress brought her suit in the lifetime of the heir, and waived the trespass by bringing her bill in equity; and I am aware of no case in which the bill lies for mesne profits, unless filed before the death of the heir. That cases have been decided in New York, on this point, favorably to the widow, cannot be denied; Swaine v. Perine, 5 Johns. Ch. Rep. 492; Hale v. James, 6 Id. 258. But these cases are not authority for us, where they are neither sustained by the current of decisions of those tribunals from which we have drawn our law, nor are consistent with its acknowledged principles. There is no such current of authorities in favour of the widow’s right to profits against the alienee. In Dormer v. Fortescue, 3 Atk. 124, 131, lord Hardwicke, in deciding another point, incidentally mentions the case of a widow, and states that in some cases she will be decreed profits from the time her title accrued; but, even in this incidental remark, he takes a distinction : where the widow cannot proceed at law because of a term that is in her way, the court will give her ^profits from the time her title accrued; but where the term is out of her way, and she has no need to come into this court, it would have been otherwise. That is,. in effect, the court of equity alone having jurisdiction in the first case, administers relief at its pleasure; but having only concurrent jurisdiction in the latter, it follows the law, and gives profits only as the law would give them. It is proper to add also, that lord Hardwicke does not advert particularly to the case of the alienee. The case of Curtis v. Curtis was a case against the heir as was also the case of Mundy v. Mundy, 2 Ves. jr. 122, and so, I think, we must take Oliver v. Richardson, 9 Ves. 222. There being, then, no direct control-ing authority, and the two jurisdictions being concurrent as to this matter, I think the court of equity should follow the law, and give no damages in dower against the alienee, except from the date of the decree.

With these views, I am of opinion to reverse the decree and send the cause back for further proceedings.

Decree reversed, and the cause remanded to the court of chancery for further proceedings, in which dower should be assigned to the appellee of the land conveyed by the deed of her husband which she did not sign, (that of November 1801) according to the value of the land at the date of the deed; and an account should be taken of the profits, from the suing out of the subpoena in the cause.  