
    Montgomery vs. Hobson.
    HUSBAND and Wife. Conveyance of wife's land — analogy between conveyance, by Jine and statutory deed — Constitutional Law — retrospective law when forbidden.
    
    In the conveyance by fine, the conusor’s acknowledgment of the conusee’s right is the inception of the conveyance. The judgment of the court perfects it.— From the last principle, it follows that in the conveyance of the wife’s land, the acknowledgment of the husband and wife need not be simultaneous, nor by him before her.
    In the conveyance by statutory deed, the bargainee has an inchoate title by the signing, sealing and delivering, The registration makes it complete. The bargainor’s signing, &c. stand in place of the conusor's acknowledgment; and the registration, like the judgment, accomplishes the conveyance. The bar-: gainor’s acknowledgment of the signing, &c. does not further divest his title, it only authenticates the signing, &c.; and is the register’s warrant for admitting the deed to record.
    A feme coverfs statutory deed of her land more closely resembles the fine. Her signing,&c. are inoperative till acknowledged in court. Her title is not incho-ately divested till the signing, &c, are acknowledged. The acknowledgment is the first act which has legal effect, but when made the deed takes effect from the signing.
    
      Feme Covert's deed how executed. From the principle that it is the husband’s signing, &c. which passes his right, and the wife’s acknowledgment which passes hers, it follows that her acknowledgment, when made in a court having the right to take it, is good to divest her title from her signing, &c. by relation; whether her husband is present to acknowledge at the same time, or absent and ignorant of the transaction; and though he never acknowledged his signing, #c.
    
      Retroactive Law. From the principle that the bargainor’s title is inchoately divested by the execution of the deed, and that the acknowledgment or probate of the execution has not effect further to divest it, but only entitles it to registration, it follows that statutes validating imperfect acknowledgments and probates, are not unconstitutional though retroactive, because they do not affect rights, but only evidence of facts.
    CHANCERY. Deed when cancelled for fraud or surprise or not. To set aside a feme covert's deed of her land on the ground of surprise in her privy examination, whereby she was induced to acknowledge her signing, fyc. unadvisedly and improvidently, the proof should be clear, credible and satisfactory, especially after the lapse of twenty years.
    The state of North Carolina, by patent, No. 380, dated July 26, 1793, granted to Euphemia Parnell, six hundred and forty acres of land on Cumberland river, opposite Nashville, The grantee was at the date of the patent, quite young, and soon afterwards removed from Nashville to Wythe county, Virginia, in company with her mother, upon whose pre-emption right the grant was founded. In Wythe, Euphemia intermarried with Hugh Montgomery. On the 12th of April, 1797, Montgomery and his wife joined in a deed of conveyance 0f the land to one Moses Austin. Two days afterwards, sbe was privily examined in Wythe county court, as the record has it, “respecting her dower in said land,” her husband having already acknowledged the deed in said court; and she acknowledged that she was “willing that said deed should be recorded in the county court of Davidson,” Tennessee. — - Austin conveyed the land to one Saridford, who, on the 25th of October, 1797, conveyed it to William Hobson. The deed from Montgomery and wife, however, remained in the condition above described, till the 11th of December 1807, when it and the privy examination taken in Wythe, which had been endorsed upon it by the clerk, were registered in the register’s office of Davidson.
    On the 4th of March, 1814, Lemuel P. Montgomery, the eldest son of Mrs. Euphemia Montgomery, made his last will and testament, making certain dispositions for the support of his mother and her family, and for the education of his brothers, she and they having been reduced by the improvidence of Hugh Montgomery, to a state of great destitution. James Trimble, Jenkin Whiteside and Thomas McCorry were appointed executors of this will; and it was enjoined upon them to protect and advise the testator’s family. He was slain in the battle of Tehopeka, on the 27th day of March, 1814. Immediately afterwards Trimble and Whiteside proved the will, and took upon themselves the trusts thereof.
    In 1816 William Hobson died, having made his will, in which he devised the lands above mentioned to his three sons, John, William and Nicholas. The last, in the fall of 1817, employed Trimble to procure the privy examination of Mrs. Montgomery, who then resided in Campbell county, Ten. with a view to the registration of the deed anew in Davidson. Trim-ble placed the deed, for that purpose, in the hands of James M. Campbell, Esq. of Kingston, who had habitually acted as the attorney and counsellar at law of Mr. and Mrs. Montgomery. On the 3d of December Mr. Campbell applied to Mrs. Montgomery to go into the county court of Campbell, then in session, to make the acknowledgment. Montgomery was then absent from home on a journey, and had been for some months. To McCampbell “she did not appear to understand any thing about it, and said that she did not know what interest she had in the land claimed, and seemed unwilling to acknowledge the deed.” She sent to her son-in-law, Charles Masey, to inform her about it. Masey said that he could give her no information on the subject. However, she made the acknowledgment of record, — it was endorsed by the clerk on the deed, and duly certified, and the deed, with its endorsements, was again registered in the register’s office of Davidson, on the 20th of May, 1818; and the third time, on the 4th of July, 1S34.
    Hugh Montgomery died on the 3d of June, 1S33, and Mrs. Montgomery in January, 1834, intestate.
    On the 16th day of December, 1834, an action of ejectment had been commenced in the circuit court of Davidson, by the heirs at law of Euphemia Montgomery, against the persons in possession of the land, being the devisees of William Hobson and those claiming under them. Pending this action of ejectment, namely, on the 24th of May, 1834, the lessors of the plaintiff in the ejectment, filed their bill in the chancery court at Franklin, against the defendants in the ejectment, stating the facts above recited; charging that the deed of April 12, 1797, and especially the privy examination of Mrs. Montgomery of December 2nd, 1817, were obtained by fraud and surprise, and were void; and that the defendants ought to be enjoined from reading said deed in their defence to said action; that it ought to be delivered up and cancelled as fraudulent and void; and praying for relief accordingly.
    The defendants severally filed their answers, in which the title of William Hobson was deduced from Euphemia Parnell, as above stated. But they insisted that William Hobson was a purchaser, without notice of any claim or title whatever to said land, by any other person or persons, except Sand-ford, his vendor, to whom he gave for it 2400 dollars, a full and valuable consideration. They averred that Hobson had, immediately after his purchase, taken possession of the land, which possession had been continued till the time of filing the answer, and they relied upon lapse of time in bar of the relief prayed for in the bill. They denied that any advantage had been taken of Mrs. Montgomery, or any fraud committed Up0n j]er rjghts, or that she was surprised or inveigled into the privy examination complained of. They insisted that by the act of 1822, c. 12, the deed of April 12, 1797, ofMont-gomery and wife to Austin was good and valid to pass his title to the land, that the same was also valid by the act of 1807, c. 85; that as to Mrs. Montgomery the deed was valid by the acts of 1715, c. 28, 1751, c. 3, 1813, c. 79, and 1821, c. 61, whereby they had a good, perfect and legal title in fee simple to the land. They also relied upon the various acts of limitations of the states of North Carolina and Tennessee of 1715, 1797 and 1819, they and those under whom they claim having been in possession of the deed, claiming it in fee simple, more than thirty years before the commencement of the suit.
    January 9 & 10.
    There was in the record a large mass of irrelevant testimony, relating to points which were not discussed by counsel or noticed by the court. The testimony relative to the privy examination of 1817, consisted of the depositions of James McCampbell and Charles Masey, both of which are stated in substance in the opinion of the Supreme Court.
    The cause was heard by Chancellor Bramlitt at October Term, 1838; and his Honor being of opinion that the privy examination of 1817 was obtained by surprise, and was made unadvisedly and improvidently, and was consequently not binding in law or equity, upon Mrs. Montgomery or her heirs; that the deed as executed in 1797, did not divest her of title, and had not been by subsequent legislation invested with that efficacy, ordered it to be delivered up and cancelled, and enjoined the defendants from setting it up against the complainants, or those claiming under them, and from reading it on the trial of the action of ejectment.
    The defendants appealed in errorr
    Neil S. Brown, W. Brown, Cook and Meigs, for the complainants,
    said — 1. That the deed of April 12,1797, was the act of the husband only. Co. Litt. 326a. At common law, the husband’s feoffment of the wife’s land, was a discontinuance, and put the wife to her action of cui in vita. Litt. § 594. The statute of 32 H. 8, ch. 28, sec. 6, which is in force in Tennessee- — see Martin’s Statutes, 127, 2 Sts. at Large 291, Ruffhead’s Ed., altered this rule of the common law, by providing, in substance, that the husband’s alienation should do no more than convey his interest. 10 Johnson’s R. 345; 20 Johns. R. 301; 3 Monroe 245.
    Though Mrs. Montgomery signed this deed, and was examined in Wythe county court, yet, for two reasons, this signing and examination are inoperative and void. 1. Because, on the face of the certificate of examination, dower only purports to be conveyed. 7 Monroe, 661. 2. Because there was then no law of Tennessee authorising such privy examination.
    2. The privy examination of December, 1817, in Campbell county court, was also inoperative and void — Because the husband was absent, and there was no legal evidence before that court, that the paper presented was his deed.
    To make that deed with the privy examination operate the translation of the fee to Moses Austin — the husband must have been present — 2 Kent, 150 to 154 — and must have joined his wife in re-executing it. What is an effectual joining of husband and wife to bar her of her dower, or transfer herjfee, see discussed by Parsons in Fowler vs. Shearer, 7 Mass. R. 14; and by Story, 3 Mason, 349 to 358; 4 Mason 283; 5 Mason 67. In these books the reason is assigned why the husband and wife must join in the act; that is, both be present, giving a simultaneous assent. But the reason is given in the concrete. Kent gives the reason in the form of an abstract proposition, deduced from those cases and olhers.
    The void and inoperative deed, and privy examination of April 12, 1797, cannot be helped by the relation of the examination of 1817 to it — Jackson vs. Stevens, 16 Johns. 110; Doe vs. Howland, 8 Cowen, 277 — because being void, there was no legal entity to which it could relate, and, as an independent act, it was void for want of the husband’s concurrence.
    3. But much the strongest reason why the examination of 1817 is inoperative, is to be found in the words of the acts of 1715, ch. 28, and 1751, ch. 3, which, duly considered, have but one sense, and that sense is, thac the husband and wife muS(; join 0r concur in the same simultaneous act, which, when analyzed, consists of the following parts:
    1. The husband and wife present themselves to the court, and their purpose to execute a deed to convey her estate is announced. 2. The deed is produced bearing their signatures respectively. 2. The court directs one or more of its members to examine her apart from her husband, to ascertain, whether her assent was voluntary, &c. 4. The result is announced to the court. 5. And thereupon, the joint acknowledgment of the husband and wife is taken before the court.
    These several acts being done, all the words of the statutes are satisfied. See 3 Dev. 319, 320. To this purpose, a host of authorities may be adduced, some of which are the following:
    North Carolina.— Whitehurst vs. Hunter, 2 Hayw. 401; Robison vs. Barfield, 2 Murphy, 390; Burgess vs.. Wilson, 2 Deaveraux, 306, how the deed is to be acknowledged; Cloud vs.. Webb, 3 Id. 317; Barfield vs. Combs, 4 Id. 51,4, manner of proving the deed particularised; Fen-ner vs. Jasper, 1 D. & B. 34; Lucas vs. Cobb, 1 Id. 228;. Sutton vs. Sutton, 1 Id. 582; deed is first to be proved as to both husband and wife, and then her private examination is to be had, &c.
    South Carolina. — Hillegas vs. Hartley, 1 Hill, 106.
    
      Maryland. — Lewis vs. Waters, 3 Harris and McH. 430; Robins vs. Bush, 1 Id. 50; Hammond vs. Brice, 1 Id. 322; Webster vs. Hall, 2 Id. 19; Flanagan vs. Young, 2 Id. 38.
    
      Vermont. — Harmon vs. Taft. 1 Tyler 6.
    Kentucky. — 3 Monroe, 245, Deathridge vs. Woodruff; 7 Monroe, 661, certificate as to dower, similar to Clerk of Wythe’s certificate; 2 J. J. Marshall, 359; 3 Id. 243, 244; 3 Dana 289, Millar vs. Shackleford — a very important and well reasoned case. Effect of husband’s alienation of wife’s land. Re-delivery by wife after discoverture. See on this, last point 9 Serg. & R. 276; 5 Serg. & R. 535.
    New York. — 10 Johnson’s R. 435; 16 Id. 110; 20 Id. 301; 8 Cowen, 277.
    ■ They also insisted that the privy examination of Mrs. Montgomery, in 1817, was improvidently obtained; gnd upon this point they relied chiefly upon the case of Moans vs. Llewel-lin, 1 Cox, 333, to which purpose they also cited 1 Story’s Eq. § 120, 251; 2 Sch. & Lef. 456, 462; Wright vs. Ca-dogan, 2 Eden, 239; 2 Story’s Eq. 1391-2-3, 1265; 1 Vernon, 19, note as to case in Cox; Id. 32; 6 Ves. 338; 14 Id. 215. They said it was not necessary to show in such a case that there had been actual fraud, circumvention and deceit.— No inveigling was necessary. It was sufficient if the woman was not duly and fully informed; if she was hurried into the business; if she did not consult her friends capable of advising her. And they strenuously insisted that the case in Cox, was, by many degrees, a stronger case than Mrs. Montgomery’s.
    January 11, 12.
    They went into a critical examination of the several statutes relied upon in the defendant’s answer as validating their title, with the view of proving that none of them could have that effect.
    E. H. Ewing, S. H. Laughlin, Jas. Campbell, and F. B. Fogg, for the defendants,
    said — It is true there was no law in existence at the time authorising the acknowledgment in Wythe county, but since then the following statutes have been passed, making valid that acknowledgment so far as Hugh Montgomery was concerned, viz. the act of 1797, c. 43; 1807, c. 85; 1822, c. 12, and if these acts do not apply to the acknowledgment of Euphemia Montgomery, at least the act of 1821, c. 61, does apply to it. These acts, though retrospective, are not void or unconstitutional, they only change the rules of evidence, but do not affect the rights of parties; they contain provisions in favor of subsequent purchasers, who would, at all events, be protected without such provisions. But the two first are said not to be retrospective by their terms; we think, however, that they are, as will fully appear from their scope and incidents. The third, it is admitted, is retrospective by its terms, and makes the deed good as to Hugh Montgomery if constitutional; as to its constitutionality see Cooke’s Reports, 431; 1 Yer. 13; 2 Ten. R. 345; Peck’s R. 17, 266; 1 Kent’s Comm. 456; 16 Mass. R. 245; 8 Peters, 88; 16 Serg. & R. 35; 10 Serg & R. 25; Mercer vs. Watson, 1 Watts, 330; Langhorn vs. Hobson, 
      4 Leigh, 224; Todd vs. Baylor, Id. 498. It is said, however, that if the act of 1822 does make Hugh’s acknowledgment valid, that it makes it valid only from the date of that statute, and does not relate so as to authorise the acknowledgment by the wife before the Wythe county court, that court at the time having no power to take either the probate or acknowledgment of the husband, and therefore having no legal evidence of his assent to the wife’s deed; so that supposing the act of 1821 to make, in proper cases, the examination of a feme covert, previously taken, good, yet that this examination was improperly taken for want of the only legal evidence of the husband’s assent. We answer, that when the act of ’22 makes the acknowledgment of Hugh good, it is, except as to subsequent purchasers, as if that statute had been passed previous to the act that it confirms, and conferred the authority incident to its enactments. It is said though, that if Hugh’s acknowledgment be valid, and does relate so far as his assent is concerned, that still the court of Wythe had no power because of his assent merely to take this acknowledgment; to this we say that her acknowledgment was confirmed and made good by the act of 1821, c. 61. This statute, it is said, relates only to acknowledgments in the state; we say the words are general, and provide for the cases of acknowledgments by femes covert every where in the United States, though the previous part of the statute provides only for cases of probates or acknowledgments in the State, and for the reason, that the cases of probates and acknowledgments by others out of the State, was already provided for, and that of femes covert was not.
    Again, we say that if this probate in 1797 was defective, the ácknowledgment of the feme in 1817 remedies the defects. This was not good say our opponents: 1st. Because the husband and wife did not acknowledge together, and the husband was in fact absent, and they refer to the mode of acknowledgment in fines, and to a case in 2 Devereux’s Reports, decided upon the acts 1715, c. 28, and 1751, c. 3. We say that the practice upon fines should not be quoted, as it was to get rid of the difficulties |of that mode of passing estates that our acts were passed. But let us see what was the mode of acknowledgment in fines, 4 Comyn, 308-9 and note; 5 Cruise, 87, and what absence is meant. The case in De-vereux does not apply. But the act of 1813, which speaks of probate or acknowledgment, rids us of this difficulty, as it manifestly contemplates, in some instances, the absence ofher husband, and always where a commission is to be sent, he maybe absent; but why be present, and how near? His assent is shown by previous acknowledgment or probate, and the object of these laws is to protect the wife against the wiles or violence of the husband, and not against the fraud or force of others; his absence is expressly required upon the privy examination, and how would his presence avail her? Against whom? But say the gentlemen, at least the probate must be in the same court, and why ? If a legal probate be made, it is a record and imports the truth; it carries the estate of the husband. If the husband’s presence is not necessary, the evidence of his assent was as strong by the Wythe county record, as it would have been by our own. See as to probate’s acknowledgments by femes covert, 4 Randolph, 468; 1 Yer. 413.
    It is urged here also again, that the probate in Wythe not being legal in 1817, as to Hugh Montgomery, the Court of Campbell had no evidence of the husband’s assent, and no authority to take the acknowledgment. We say that it was legalized by the acts of 1797 and 1807, and that if this were not so, that the act of 1822 had a retroactive effect, and made it good from its date, both as to this and for all other purposes, except as to subsequent purchasers, and reiterate our argument in regard to the wife’s acknowledgment in Wythe. Then, we conclude that no valid objection can be made as to the foim of this probate and acknowledgment.
    The charge of fraud, or surprise, contained in the second objection to our deed, is about such an one as might be made in regard to the deed of almost any feme covert. That women have been, and always will be, ignorant of business, and their rights too, may be in some measure expected while the present state of society exists, and that even after the most studied explanations; their education, and the situations they are expected to occupy in the community, naturally abstract them busfie anc| concerns of busy life. When we come, then, to decide upon their acts, we must do so in reference to this slate of things, otherwise the safeguards intended to be thrown around them may be made instruments for the accomplishment of the most extensive and glaring injustice. They are permitted to act, and those acts cannot frequently be examined into for a great length of time after they have taken place. If then for their benefit, or that of their heirs, we are to extinguish space and time, and adhere to the ordinary rules that apply to the transactions of men, which are speedily inquired into, we may uproot the very foundations of the rights of property. Are we to look back through a vista of time, and regard the objects there seen as if immediately before our eyes? Are we, contrary to our common sense, to look at women as we would at men, and require of them in the transaction of business, the same unhesitating promptitude and activity. If we are, it will throw great obstacles in the way of that free and unrestricted transfer of property which it has been the object of our institutions to advance.
    This surprise, or fraud, is alleged to have taken place twenty years ago, and for its proof depends on human testimony. Will this court look at the transaction as one of yesterday? No statute of limitations, to be sure, applies, nor ought lapse of time, if the wife had not joined in the deed, and by not doing so, kept those in possession always on their guard. But by joining she has encouraged improvements, prevented perpetuation of testimony, and, in fact, perhaps permitted the real truth to escape through deaths and the infirmity of human memory. She did not complain, and certainly was not prevented from taking steps by the husband, “who,” says the bill, “though he would not sue, yet was not unwilling that others should.” Married women are not protected in frauds, and her silence during all this time has certainly effected a gross injury to these defendants, who were all this time improving, buying, selling and building hopes upon this land, wasting upon it sweat and toil sufficient to have made competent fortunes perhaps, in some other quarter.
    Under the circustances of this case, it would seem, that the general rule of law should apply; at least that without strong evidence the court will not impute fraud, after a great length of time. See Charter vs. Smith, 3 Dessaus, 12; Meredith vs. Nichols, 1 A. K. Marshall, 600; Shelby vs. Shelby, Cooke, 181; 2 Sch. & Lef. 56. What testimony may we not have lost? Trimble is dead, the justices of the county court are not to be had, and if so, the matter may have totally escaped their recollection; any one who saw or heard Mrs. M, speak of this matter is not now within the reach of defendants, in fact, all the objections apply here that ordinarily do to charges of stale frauds. But let us look at this as a charge of fraud or surprise of a late date, and see then how the matter appears. The witnesses, to prove the surprise, are first, McCampbell, a witness, according to the proof, with impaired faculties and memory, and second, an interested witness at least to the extent of getting a fortune for his children. What they have proved so far as it is- to be relied on, with the make weights to be added to their proof will be examined in argument. Take it altogether and apply ¡t to this case as one of yesterday, and we do not think it sufficient to make out a case of surprise, even suppose that Mrs. M. bad been there making the bargain for her land. The case in 1 Coxe, 333, is stronger than this, and has the ingredient also of gross inadequacy of price. See 1 Story’s Eq. 132, and 254-5 6, and note. Here was a full consideration, at least such is the presumption, there being no proof to the contrary.
    But the charge of fraud is not here, that she was cheated in a bargain or surprised out of her property in a trade; but that being ignorant and hurried she made an admission of what she had previously done. Did her surprise or ignorance tend to make her state an untruth ? . I suppose not; then they might have existed and been perfectly harmless. What is an acknowledgmeet of a deed by a feme covert? It is an admission of record of what had been previously done. It is a mode of proof. To be sure it is the only mode of proof of her deed, still it is but proof at last. How does it speak, not in words of the present but' of the past? The feme does not «oto pass her estate, she says, “I have signed, sealed,” &c. The proof is guarded, in regard to her, and no one shall report her, she reports herself; but her acknowledgment does not differ in fact from her husband’s. He in effect says, I did this freely, and there is no suspicion thrown upon that, then the end of the law is answered if that be proved by legal testimony. I can well suppose cases where an acknowledgment would be invalid for fraud. Threats and promises might induce a falsehood, mere imbecility might. But Mrs. M. acted ‘‘with fear, care and thought.” If she recollected the fact that she did sign and seal this instrument freely, and so stated it, it is all sufficient. It is attempted to affect this view of the case by some New York decisions. 16 Johns. 110; and 20 Johns. 301. But these cases do not sustain ,the gentlemen, 1st. because the statute of N. York is totally different from ours; see 3 Sheppard’s Touchstone, 190; and 2nd. because they decide merely that the deed does not take effect until acknowledgment, or does not relate to its date; there are some obiter dicta which may or may not be true under the statute of that state. But under our statute, we say, that signing and sealing are part of the transaction, by .which a married woman transfers her estate. That at least the transfer is inchoate when the feme comes into court, and that the remainder of the transaction requires only recollection, veracity, and freedom from fear, and that if these exist, fraud cannot be predicated of an acknowledgment by a married woman. Upon the whole, therefore, we conclude, that the deed and probate are valid in form and are not affected by fraud or surprise.
    January 21.
    The case in Taunton’s Reports, p. 37, referred to by Mr. Meigs, was the case of an assignment by operation of law, the husband being a bankrupt, and as to him of course in in-vilmn. And his assent was not given, so that he might enter and bar the fine — there was no fine, no acknowledgment by the husband, nor any joining of any kind by husband and wife.
   Turley J.

delivered the opinion of the court.

This bill is filed by the complainants, the heirs at law of Euphemia Montgomery, to have a deed of bargain and sale executed by her and her husband, Hugh Montgomery, to Moses Austin, for a tract of land containing six hundred and forty acres, lying in Davidson county, State of Tennessee, the same having been her individual property, deliveréd up to be cancelled, they contending that the same is void, because it was never executed according to the forms of law, or if it were, that it was so procured to be done by fraud and surprise.

The facts of the case are shortly these. Euphemia Montgomery was the legal owner of the tract of land in dispute by a grant from the State of North Carolina, issued to her in her own name, and being such owner, she, in conjunction with her husband, did on the 12th day of April, 1797, in the county of Wythe, State of Virginia, the place of her residence, execute a deed of bargain and sale for the same to Moses Austin, for the consideration as therein expressed of six hundred and forty dollars. On the same day this deed of conveyance was acknowledged by her husband, Hugh Montgomery, in the county court of Wythe, and a commission directed to take her privy examination as to the relinquishment of her right of dower in the land sold. This commission never issued, but on the 14th day of April, 1797, she came into said court and was privily examined in which examination she acknowledged that she was willing that the deed of bargain and sale to Moses Austin should be recorded in the county court of Davidson, State of Tennessee. In this situation this deed of conveyance remained until the December Term, 1817, of the county court of Campbell county, State of Tennessee, when at the instance and request of Nicholas Hobson, one of the defendants, she in the absence of her husband went into open court and acknowledged that she had executed said deed freely, voluntarily and without compulsion from her husband.

The reasons upon which this deed of conveyance is sought to be cancelled, are resolved into the propositions. 1. That it has never been executed as the law directs, and has not therefore passed the estate, and 2. That if it be, such execution was acquired by fraud and imposition, advantage having been taken of a feme covert, in procuring the acknowledgment of the deed in the absence of her husband.

In the decision of the first proposition, it is necessary to ascertain what are the rights of a feme covert to her real estate, and how she may part from it? The lands of a wife belong to her, notwithstanding her coverture, the husband having acquired nothing but the right to receive the rents and profits during the marriage, and a contingent tenancy by the courtesy, provided he survive her. By the provisions of the common law, this right of the wife can only be conveyed by the assurance of a fine, or common recovery, — -her deeds of every kind and description being held to be absolutely void. The reason for this distinction between the modes of conveyancing, obviously results from the fact, that the wife is under the power and protection of her husband, and is therefore supposed to have no controlling will of her own, and therefore cannot protect her estate from his rapacity, if she were permitted to convey it, by the ordinary forms of assurance, inasmuch as they are executed privately, and of consequence there can be no certainty that she has acted freely and voluntarily, and not by his compulsion.

But inasmuch as this disability to contract, so as to bind herself, does not arise from a want of discretion, but because of her social obligation to her husband, she is permitted to do so, where her rights can be protected, and when reason and justice dictate a departure from the rule. Therefore she may dispose of her estate by fine or recovery, they being, conveyances of record, which cannot be passed, but by her consent, ascertained by the examination of the court, before which the proceedings are instituted. Nevertheless, to constitute a valid conveyance by fine and recovery, from a feme covert, the husband must be a party thereto, because of his limited rights in her estate, and because he is her legal protector against fraud and imposition. We then have the examination of the wife by the court, as to her consent to the disposal of the estate to protect her from the undue influence or violence of her husband; and the consent of the husband, as expressed by his joining with his wife in the assurance, to protect him from a destruction of his right in her estate, and to secure her against the fraud and imposition of others.

This is as it should be. It. is not the policy of a well regulated community to tie up estates, or to place any restrictions upon their disposal, except such as may be necessary to give a fair protection to the owners against any undue advantage which may be obtained against them, either by fraud or the influence which the nature of such relations as husband and wife, guardian and ward, trustee and cestui que trust may bring to bear.

The mode of conveyancing by fine and recovery, being in form an action brought for the recovery of the estate, it of necessity follows, that the acknowledgment of the husband and wife, that the land belongs to the complainant must be in the same court; but it by no means follows, and indeed it has never been determined, that the acknowledgement must be simultaneous, or that the husband must give his, before his wife. Indeed the sense of the thing is otherwise. It being a suit, the acknowledgment is in the nature of a confession of judgment; and the husband and wife being joint defendants, it can make no difference, which confesses first, so that the confession be made, by both, while the suit is pending. Though there is a case or two in which the courts of England have permitted, under particular circumstances, a feme covert to levy a fine without her husband, quantum valeaf, yet it is not denied, nor could it be, that as a general rule the husband must be a party thereto, or it will not be binding even upon the wife or her heirs, unless it were levied by her as a feme sole.

Such are the rights of a married woman as secured to her by the common law; but the assurance by fine and recovery having never been used in North Carolina and Tennessee, there is no mode by which a feme covert in this state can dispose of her real estate, except that which is provided for by the statute.

The first statute on this subject was passed in 1715, c 28, Scott’s Revisal, 15. It provides, “that all deeds made by husband and wife, and acknowleged before the chief justice, or in the court of the precinct where the land lieth, the wife having been first privately examined before the chief justice, or one of the associate judges, or by some member appointed by the court of the precinct, whether she acknowledged the same freely, shall be good and effectual against the husband and wife, and all persons claiming under them.”

This statute substitutes a deed of bargain and sale in the place of a fine and recovery, and authorises an acknowledgment of it either before the chief justice personally, or in the court of the precinct where the land lies. But it has made no alteration whatever as to the security given mutually to the husband and wife, by a joinder in the conveyance and by the privy examination of the wife, as to her voluntary assent thereto.

The power to receive the acknowledgment of the deed and to take the privy examination of the wife, being confined to the person of the chief justice, or the court of the precinct, the statute was found to be too restricted in its operation, and to produce evil, for remedy of which the act of 1751, c 3, was passed, by which provision was made, that when the deed had been acknowledged before the chief justice, or in the court of the county, by the husband, or proved by the oath of one or more witnesses, and the wife should be a resident of any other county, or so aged and infirm, that she could not travel to the chief justice, or the county court to make her acknowledgment, a commission might be issued for that purpose. This statute made no other alteration of the act of 1715, c 38, than to authorise a commission where the wife was a resident of another county, or was so old and infirm as to be unable to attend upon the chief justice or the county court. It still left the power to receive the acknowledgment of the deed, and to take the privy examination of the wife either personally or by commission exclusively in the person of the chief justice, or in the court of the precinct.

This amendment, time and experience proved had not gone far enough in removing the restrictions upon the right of a feme covert to alien her lands; and the act of 1813, c 79. was passed, by which it is provided, that “it shall and may be lawful to take the probate and acknowledgement of deeds made by husband and wife, for the sale and transfer of land belonging to the wife, before any court of record in this state; and when said grantor resides beyond the limits of this state, before any court of record in another state or territory.” It is under the provisions of this statute that it is asked that the deed from Mrs. Montgomery shall be held to be good, and operate to convey her estate to Moses Austin.

It is not pretended that the deed can be supported by her acknowledgment made in the court of Wythe county, Virginia, in 1797; but it is contended, it can upon the acknow-ledgement made, in the county court of Campbell, in December, 1817. It cannot be successfully denied that the form of the acknowledgment made in the county court of Campbell, is in strict conformity with the provisions of law, and the only question is, whether the court had the power to take it. It is urged with great strength and ability that it had not, because it is said that by the act of 1813, c 79, no power is given to the court either in or out of the state, to take the private acknowledgment of a Jeme covert to a conveyance of her real estate, unless the deed shall have been previously acknowledged in the same court by her husband, or proven by the subscribing witnesses, which was not done in this case.

There is nothing in the wording of this statute, which requires such a construction; and if it has to be given, it must be upon the ground of analogy between her rights, as they existed at common law, and under the statute; or that she - to receive some substantial protection thereby.

There is nothing by analogy requiring such a construction.

We have seen that a feme covert cannot levy a fine but in connexion with her husband, and that he must acknowledge the right of the .cognizee to the land, as well as his wife, and in open court; but that there is nothing which makes it necessary that this should be done by them simultaneously, or by him before her, and that there can be no good reason why it should be so. In the case of a fine, it is the judgment of the court upon the acknowledgment of the husband and wife, as to the right of the cognizee, which constitutes the conveyance; and therefore, unless he has made the acknowledgment there is no conveyance as to him. But when the conveyance is by deed, the execution by the husband is a joinder with the wife in tiie contract, and an acknowledgment of the rights of the vendee in the estate, and must be good without further acknowledgment on his part, unless such acknowledgment be expressly made necessary by statutory provision; and then no greater strictness will be required in making it, than such as a fair construction of the statute, according to its spirit, demands. That the estate, so far as the husband is concerned, passes from him by his execution of the deed before probate or acknowledgment, is unquestionably true, as has been determined by this court in the case of McNairy vs. Vance, 3 Yer. 171, and Turner vs. Shields, 10 Yer. 1, and by the supreme court of North Carolina in the case of Morris vs. Ford, 2 Dev. Eq. R. 412.

This estate is inchoate before registration, but may at any time be perfected by registration; to do which, all that is necessary is, to prove the execution of the deed by the subscribing witnesses, or to procure an acknowledgment by the bargainor. It is then the registration, and not the probate or acknowledgment which perfects the title. Then so far as the rights of the husband are concerned, there is no actual necessity for an acknowledgment, his interest having passed by the execution of the deed. Why then should it be required? Not for the protection of the wife, the joinder of the husband in the deed protects her against the acts of others, and the privy examination protects her against him. Then the acknowledgment of the deed by the husband has no necessary connexion with the conveyance and acknowledgment by the wife; and upon principle cannot be required by any thing short of positive enactment.

The statute of 1813 authorises the probate and acknowledgment of deeds made by a husband and wife, before any court of record in the state, or out of it, if the bargainor resides beyond its limits; and we can see no good and sufficient reason for saying, that they may not be proven or acknowleged as any other joint deeds.

But it is not necessary for us to determine, whether a deed which has not been acknowledged by the husband, or proven by the subscribing witnesses, can or cannot be obligatory upon the wife, she having acknowledged the execution on her part, with all the formalities required by law; because we are satisfied, that if an acknowledgment by the husband be necessary, and it has been made under the provisions of any law authorising it, it will, under the act of ¡813, give power to any court of record in the state, to take the privy examination of the wife. Unless we stick in the bark in the construction of the statute this must be so. It is the substance of things and not forms that we are in pursuit of; and as Judge Yates, in the case of the Lessee of Watson vs. Baily, 1 Binny, 479, has observed, “We do not take a literal strict adherence to the very words of a statute, to be essentially necessary in these cases; but the substantial requisites, by which the rights of married women are intended to be guarded by the legislature, should be preserved.” These rights are as well guarded by permitting the husband to acknowledge the deed in one court, and another to take the privy examination of the wife, as by requiring both transactions to be done in the same court.

But it is said, that Hugh Montgomery never acknowledged the deed in any court having jurisdiction to receive it.

His acknowledgment was made in the county court of Wythe, being a court of record, and it is properly certified; but this acknowledgment was made on the 12th day of April, 1797, at a period of time when there was no law authoris-ing it, and it is contended that it is therefore void and inoperative. Though this deed was thus acknowledged in 1797, yet it was not registered in Davidson county till December 11th, 1807; and on the 30th day of November, 1807, an act was passed by the legislature of the State of Tennessee, by which it was provided, “that all conveyances for the transfer of real property, which should be thereafter exhibited for registration, shall first have been proven or acknowledged in the case of resident bargainors, in the court of the county or district where the land, or a part thereof lies; and in the case of non-residents, in some court of re-corc| jn some one 0f the states, or territories of the United States.”

The words, “shall have been first proven,” it is contend' ed, gives the statute a retrospective operation, and makes good the acknowledgment of 1797: and so we think. When the deed was offered for probate, it had been acknowledged in a court of record in the State of Virginia, by the bargainor, who was a non-resident, and therefore it fell within the express words of the statute, and was properly registered. We are therefore of opinion, that the deed of bargain and sale from Hugh Montgomery and his wife Euphemia to Moses Austin, has been executed according to the forms of law, and passes the estate.

But it is contended, 2. that the acknowledgment of Mrs. Montgomery which was made in the year 1817, in the county court of Campbell, is bad for two reasons. 1. That it was procured in the absence of her husband. 2. That it was procured by imposition and surprise.

There is nothing in the first objection, the absence of the husband is the very thing contemplated by law; and to require him to go to the court with her, in order that she may be there separated from him, is a refinement in argument that we cannot understand. He must be away from her; and whether the distance be a hundred yards, or a hundred miles can make no difference in principle. The idea, that he must be present to protect her from imposition is not supported by reason. He must join in the conveyance, and this is supposed to be a sufficient protection so far as other persons are concerned; but when she comes to be examined, as to her having voluntarily made the conveyance, it is as against him that she request protection, and not others.

2. Upon the second objection there is more difficulty. The acknowledgment of a deed in 1817, by Mrs. Montgomery, appears to have been made somewhat hastily. But from the view we take of the testimony, we do not think that a case of fraud or surprise is satisfactorily made out. There are but two depositions which bear upon this point.

The first is that of James McCampbell, Esq., who had sometimes transacted professional business for the family. He states that the deed was given to him by James Trimble, to procure the acknowledgment of Mrs. Montgomery. When at court, in the county of her residence, Campbell, he went to her house, and stated his business. She said she did not know the interest she had in the land — seemed unwilling to make' the acknowledgment, and sent for her son-in-law, to advise with. He was unable to give her any information on the subject.

Mr. McCampbell further says, that he thought she had only a dower interest in the land. As the law has ever stood in Tennessee, her being a party to the deed at all in the case supposed, would have been not only unnecessary but embarrassing; and, with the deed in his hands, which showed where the land lay, no lawyer could have entertained and acted upon such a supposition. His impression must have been based upon a confused recollection of a long past event. But he does not prove that he told her, Mr. Trimble wished her to acknowledge the deed. He does not state, that she said any thing on the subject of her husband’s absence, or of her wish to postpone the matter. The only thing material in his testimony is stated in these words: “I am now under the impression, that I told her if she did not acknowledge the deed, the claimants might file a bill and enforce the title.”' And upon the cross examination, when the point recurs, he uses the same guarded phraseology. “I think I told her that the complainants might file a bill.” It is obvious that the witness feels some doubt whether this communication was in fact made to Mrs. Montgomery. Indeed, if he had thought her interest one of dower. only, in her husband’s land in Tennessee, he must have known that the acknowledgment and the bill to enforce it would have been alike useless.

The other witness is Charles Masey. He is the father of some of the complainants, his deposition, on the face of it, shows a very strong leaning in favor of the side which calls him.

The state of Mrs. Montgomery’s mind, he swears, was such, at the time of the acknowledgment, as to make her incapable of performing any important act. In this he is contradicted by McCampbell, by the clerk of the court, and by a host of intelligent witnesses, the immediate neighbors of Mrs. Montgomery; and sustained by no person whatever. He states conversations of McCampbell, not proved by him. He affects to have believed the deed in question related to the estate of Lemuel P. Montgomery, which opinion the deed itself would have at once removed; and it is intrinsically difficult to believe that under the circumstances spoken of, he should have been ignorant of its contents, or should not have read and examined it.

Upon the whole, we regard this witness as occupying such a relation to the parties, manifesting so strong a bias, so involving himself in his statements, and so contradicted by others, that his testimony, standing as it does alone on this point, will not justify us, in relying upon it, for the purpose of setting aside the deed.

Besides, it may be remarked, that after the lapse of twenty years, proof to have the effect, claimed for that we have commented on, ought to be clear, credible, and satisfactory; otherwise, the most solemn assurances might be rendered null and void by the vague and perplexed recollection of one witness, and the strained and doubtful statements of another.

We are therefore of opinion, that the complainants are not entitled to the relief sought; and that the decree of the chancellor be reversed and the bill dismissed. 
      
       This case is referred to in Shields vs. Mitchell, 10 Yer. 1, in the argument of counsel and in the opinion of the court, as being reported in 4 Dev. Law Reports.
     