
    Charles C. Kilbourn et al. v. Anna M. Fury.
    1. Where an officer, before whom a deed, executed by husband and wife for the conveyance of the wife’s estate in land, was acknowledged, omits, by mistake, to certify the separate examination of the wife, such mistake may, under the act of April 17, 1857 (S. & O. B9á), be corrected.
    '2. In such action the acts and declarations of the wife, at the time of and after the execution of the deed, in relation thereto, are admissible in evidence.
    
      Motion for leave to file a petition in error to the Superior Court of Cincinnati.
    On the 5th day of September, 1874, the defendant in error, plaintiff below, filed her petition in the Superior Court of Cincinnati, in which she alleges, in substance, that on the 1st day of November, 1860, Cornelius W. Lane^ for a valuable consideration, conveyed to her by deed in fee-simple, with covenants of general warranty, a certain lot on Front street, in the city of Cincinnati, of which she is now the owner, and which has been in her possession as the owner thereof since the date of the conveyance to her; that on the 25th day of November, 1852, Samuel Ward and Mary A. Ward, his wife, who were then in possession of the above-described lot, duly executed and delivered to John II. Lane, the grantor of her grantor, their deed, whereby, in consideration of $2,055, they intended and attempted to convey the same to John H. Lane in fee-simple, which deed was duly recorded in the record of deeds of Hamilton county; that the deed was prepared with the intention and for the purpose of conveying the full title to the premises to John II. Lane, and was signed, sealed, acknowledged, and delivered by Samuel Ward and Mary A.y his wife, in the full belief and .understanding on their part, and that of John H. Lane, that the same fully and truly expressed their intention by conveying to John H. Lane the entire fee-simple interest of Samuel Ward and Mary A., his wife, in the premises, in full faith whereof, John H. Lane paid to them the full consideration therefor, accepted the deed, and entered into the possession of the premises; that the deed was in all respects properly executed and acknowledged by the parties thereto, but the officer before whom the acknowledgment was made, by inadvertence or mistake, omitted to certify the separate examination of Mary A. Ward, the wife of Samuel Ward, as required by statute, by reason whereof, and contrary to the understanding and agreement of the parties to the deed, the same does-not have the legal effect intended by them ; that after discovering the mistake in the deed, the plaintiff called upon the grantoi’s, Samuel Ward and Mary A., his wife, and also upon the defendants, and requested them to correct the same, which they refused to do; and that the defendants, as heirs at law of Samuel and Mary A. Ward, in consequence of such omission, claim title to and possession of the premises. She prays judgment for the correction of the deed so as to make it conform to' the intention of the parties, to the end that the fee-simple of the premises be conveyed to her, etc.
    The defendants filed an answer and a cross-petition.
    The answer denies that Mary A. Ward made any contract or agreement with John H. Lane to convey to him the fee-simple title to the premises described in the petition, or that she united with her husband in the execution of the deed of November*25, 1852, to John H. Lane, for any purpose other than to convey to him whatever right Samuel Ward had in law in the premises as her husband. It also denies “that there is any defect, omission, mistake, or departure in the terms expressed in the deed from the contract, agreement, or intention of the parties thereto; but the same truly and fully, and in due and legal form, expresses the only contract, agreement, and intention the parties had, at the time of making the same, in respect thereto.” It also denies the averments of the petition as to any inadvertence, omission, or mistake on the part of the officer before whom the deed was acknowledged, and as to her examination separate and apart from her husband. The cross-petition sets out that the defendants are the children and grandchildren of Mary A. Ward, the issue of a former marriage, and are her only heirs at law; that Mary A. Ward died on the 3d day of June, 1874, leaving no issue of her marriage with Samuel Ward, and was at her death seized in her own light, in fee-simple, of the premises described in the petition; that the title to the same did not come to her by deed of gift from her husband, Samuel Ward, nor was the same devised or conveyed to her by deed of- gift from any of his ancestors; that as the only heirs at law of Mary A. Ward, the defendants, are legally seized of the title to the premises in fee-simple, and are entitled to the immediate possession of the same; that the plaintiff has no title or claim to the premises other than that derived under the conveyance from Samuel Ward and Mary A., his wife, to John H. Lane, and as that conveyance was not acknowledged by Mary A. Ward in the manner directed by the statute, the mere signing and sealing of the deed did not divest her of title. They pray judgment for the recovery of possession of the premises, etc.
    The reply specifically denies every averment of the answer .and cross-petition which are inconsistent with the allegations of the petition.
    At the June term of the court, 1875, after the parties Lad produced all their evidence, it appearing that there were important questions of law and fact in °the case, the same was ordered by the court to be reserved upon the testimony, for decision in general term. At which term, held on the 23d day of the same month, the court, on the hearing, found in favor of the plaintiff’ on all the issues joined, and that she was entitled to the relief prayed for in her petition, and decreed accordingly, to which the defendants excepted, and thereupon filed their motion for a new trial, for reasons therein stated, which was overruled by the court, and the ruling excepted to.
    A bill of exceptions was presented by the defendants, containing all the evidence and the rulings of the court on the trial, which were excepted to by them, which was signed and sealed by the court, and made part of the record in the case. It appears from the admissions of the parties set out In the bill of exceptions, that on the 25th day of August, 1847, Samuel Ward and Mary Ann Ward, his wife, conveyed the premises described in the petition, the grantee in the deed not being named in the admission, for the con.sideration of two thousand dollars; that on the 5th day of September, 1851, James Carroll and wife conveyed the same premises to Mary Ann Ward for the consideration of one thousand nine hundred dollars ; that by virtue of an order of tbe Court of Common Pleas of Hamilton county confirming a sale of the same premises, made by the sheriff of that county to Cornelius W. Lane, on an execution issued against John II. Lane, in case No. 16,979, pending in that court, wherein William L. Lane, administrator, was plaintiff, and John H. Lane et al. were defendants, the sheriff' conveyed the same to Cornelius W. Lane for the consideration of one thousand six hundred dollars, that sum being two-thirds of their ajjpraised value ; that the plaintiff holds the title to the premises by a regular chain of title under the conveyance from Samuel Ward and Mary Ann Ward, his wife, to John H. Lane, of November 25, 1852, and that the defendants are the only heirs at law of Mary Ann Ward, and are her children and grandchildren, the issue of a former marriage.
    It also appears from the bill of exceptions, that the plaintiff offered in evidence a deed, properly executed by Cornelius W. Lane, dated November 1, 1860, conveying to her, in fee-simple, the premises described in the petition, for the consideration of two thousand five hundred dollars; admitted copies of an original and an amended petition, filed in the Court of Common Pleas of Hamilton county, in an action commenced in that court on the 11th day of September, 1874, by the present plaintiffs in error as plaintiffs, against the present defendant in error as defendant, to recover the possession of the premises and damages for their detention, on the ground of the omission in the deed from Samuel Ward and Mary Ann Ward to John H. Lane, of which petition a copy of the deed was made a part and thereto attached, and the record of the same deed; and also produced testimony tending to show the loss of the original deed from Samuel Ward and wife to John H. Lane; the continued occupancy of the premises, by the plaintiff below, from November 25,1852, the date of the conveyance from Ward and wife to John H. Lane, to the commencement of the present action, first as lessee of John II. Lane and afterward as grantee of Cornelius W. Lane; the erection of valuable improvements thereon by her during such-■occupancy; the continued residence of Samuel "Ward and Mary Ann Ward, his wife, in the vicinity of the premises, from the time of the conveyance to John H. Lane until the death of Mary Ann Ward, which occurred on the 8d day of June, 1874; that the consideration paid by John H. Lane to Ward and wife for the premises was their full value at that time; and the admission and declaration of Mary Ann Ward that the premises had been paid for by Lane, that she had deeded them to him, and “that she had no further claim upon them, and would have none.”
    
      Charles B. Wilby, for the motion:
    I. The defendant in error has not shown any title, not having produced the original deed. Lessee of Johnson v. JIaines, 2 Ohio, 55. There has been no regular and proper record of the deed in this case, and no authorized certified •copy.
    Without the original deed, we have nothing to start from. The copy and record offered are of no avail, as they are made without any authority, as the statute only authorizes the recording of duly authenticated deeds.
    II. Parol testimony can not be received to supply the defect in the acknowledgment of a deed. Mliott v. Per sol, 1 Peters, 333.
    If such parol proof can be received, the evidence offered for that purpose here is incompetent; because—
    1. They can not be admitted as declarations against interest ; for such declarations, when made by one not in possession, merely go to abridge or incumber the estate, 1 Taylor on Evidence, 597, sec. 620; Queen v. Bliss, 7 A. & E. 550; 1 Greenl. on Evidence, sec. 109.
    2. Nor can they be admitted as declarations of intentions, because such declarations are only admitted “ when extrinsic evidence has shown that a description in the instrument is alike applicable to two or more pei’sons or things.” 2 Taylor, 1017, see. 1092; Loe v. Hissocks, 5 M. & W. 363.
    3. The acknowledgment is itself the best evidence of what took place. 10 Irish Rep. (N. S.) 245.
    
      III. The act of April 17,1857 (S. & C. 694), does not provide a remedy for the defect in this deed; for, as we claim, there is no deed to correct. Foster’s Lessee v. Dennison, 9 Ohio, 125 ; Miller v. Hiñe, 13 Ohio St. 565 ; Smith v. Turpin, 20 lb. 478; Goshorn v. Purcell, 11 lb. 641; Winkler v. Higgins, 9 lb. 599; Garr v. Williams, 10 Ohio, 305.
    
      Stevenson ‡ O’Hara, also for the motion,
    made the same points in their brief as Mr. Wilby.
    
      Snow Kumler, contra:
    I. We claim that the intention to convey the fee-simple in this ease is made manifest from the sweeping and unmistakable words of the conveyance of the entire premises, and the further fact that a full consideration therefor was paid. See Goshorn v. Purcell, 11 Ohio St. 647, 648. The case of Goshorn v. Purcell becomes especially applicable to this case when we consider that the fee-simple, before and at the date of the defective conveyance, was in fact in Mrs. Mary Ann Ward.
    In addition to what the deed itself shows as to the intention to convey, the testimony on the triahis conclusive. It shows that Mrs. Ward had said, subsequent to the conveyance, that “ she had no claim in the property, and would have none.”
    II. It is well settled in Ohio, we think, that courts of equity, under the law of 1857 (S. & 0. 649), will give effect to the manifest intention of the parties in cases of this kind. Goshorn v. Purcell, 11 Ohio St. 641, 646, 648, 649 ; Smith v. Turpin, 20 lb. 478; Miller v. Hiñe, 13 lb. 565; Hout v. Hout, 20 lb. 119.
    TTT- The declarations and admissions of a grantor against his or her title are always competent. Tipton, Lessee, v. Boss, 10 Ohio, 273; Greenl. on Ev., secs. 109,147,153; Taylor on Ev., secs. 1090, 1095; Gillisvie v. Moore, 2 Johns. Oh. 584.
   Res, J.

The power of the courts to correct, amend, and relieve against errors, defects, and mistakes in deeds of husbands and wives, intended to convey or incumber tbe lands- or estate of the wife, is derived from the act “ to give additional security to land-titles in this state,” as amended April J 7,1857 (S. & C. 694), and the question presented for determination is: Does this case come within the provisions of the act?

The act, there can be no doubt, was intended to apply as well to errors, defects, and mistakes in the acknowledgment of deeds of married women as to the operative words of the conveyance or the body of the deed. It makes no distinction between errors and defects in the execution and in the body of the deed, but speaks generally of errors, defects, or mistakes occurring in the deed of husband and wife. The acknowledgment of a deed by a married woman, in the form required by the statute, is as indispensable to its validity as a conveyance of her absolute title, or of her dower-estate in lands, as the insertion of her name in the body of the deed, and it is difficult to see how an error or defect in the one would differ in legal effect from an error or defect in the other. Goshorn v. Purcell, 11 Ohio St. 641; Smith v. Turpin et al., 20 Ib. 478.

In each of the cases above cited, the defect consisted in the omission of tbe name of the wife in the granting clause-of the deed, which left the wife’s estate in the premises intended to be conveyed, unaffected by the conveyance. The effect of the mistake in this case is the same, and if it be found that such effect is contrary to the intention and understanding of the parties, and the mistake such a one as in equity ought to be corrected, the provisions of the act are, we think, broad enough to furnish a remedy.

The inspection of the deed, and the evidence properly admitted in the case, in our opinion, show clearly and conclusively that it was the intention of Samuel Ward and Mary Ann, his wife, by the deed signed by them, to convey to John H. Lane their entire interest and estate in and to the premises described in it, and that this intention was defeated by the defect in the acknowledgment. The terms used in the body of the deed are sufficient in law to convey their entire estate in fee-siínple; a full consideration was received by them from the grantee for the premises; John H. Lane and his grantees have been in the undisturbed possession thereof for a period of twenty-two years, during the whole of which time the grantors, Ward and wife, resided in their immediate vicinity, and Mary Ann Ward has repeatedly admitted, since the execution of the deed, that she received a full consideration for the premises from Lane, and deeded them to him, and declared that she had no further .claim upon the premises, “and would have none.”

Under this state of the case, is it at all probable that Ward and wife only intended to convey to Lane the life estate of the husband in the premises? We think not; and we are further of opinion, that the evidence shows clearly that the defect in the acknowledgment was contrary to the intention of the parties, and that the court did not err in granting the relief asked for by the defendant in érror.

On the trial in the court below, there was evidence showing the loss of the original deed from Ward and wife to Lane, which was permitted by the court to be supplied, by a copy attached to a petition filed by the plaintiffs in error, against the defendant in error, in the Court of Common Pleas of Hamilton county, to recover the possession of the same premises, and which professed to set out a true copy of the original deed. The court also permitted the records of the county, containing a record of the deed, to be given in evidence. The original deed being lost, we do not think the court erred in admitting the evidence.

The court also permitted the plaintiff below to testify to-admissions made to her by Mary Ann Ward in relation to-the effect intended by her, by the deed made to John H. Lane, which testimony, we think, was improperly admitted.. Under the provisions of section 318 of the code of civil procedure, as amended March 23, 1875, and in force at the-time of the trial, she was incompetent to testify to such admissions. As there was other competent testimony sufficient to establish the same facts, the exclusion of her testimony could not have affected the result, and as the case was tried to the court, we do not think the defendants below were prejudiced thereby.

Leave refused.

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.  