
    *Hugh Carr v. Joseph S. Williams and Mary, his wife, and others.
    A defect in a deed of husband and wife can not be rectified as against the wife.
    If omitting to name the grantor in the premises of a deed be a mere clerical error, not affecting the title, the aid of the chancellor is not needed to correct it.
    This is a bill in chancery from the county of Hamilton.
    On January 3', 1827, Thomas Kitchen made his will, devising the property in controversy to his wife, for life, remainder in fee to his daughter Mary.
    Mary married Joseph S. Williams, and in April, 1835, after the death of the testator, and before the termination of the life estate, Williams and his wife joined in a conveyance of their estate to the complainant. The instrument of conveyance was a common printed blank filled up in the usual manner except in the premises, which read, “ Know all men by these presents that-in consideration of $750 to them in hand paid,” etc., without the name of any grantor. The deed contained the usual covenants, and was duly executed and acknowledged by the husband and wife.
    The bill was filed to correct this alleged mistake of the scrivener in not filling up the blank ; and at the same time prayed that the possession might be decreed to the complainant, and that an account might he taken of the rents and profits since the death of the tenant for life.
    The case was heard upon bill, answer, and proof.
    Wright & Walker, for the complainant:
    1. The deed is good as to Williams and his wife, without correcting the mistake. The omission is one which common sense supplies. The names of the grantors are omitted in the granting clause; this is all. They signed and acknowledged the deed, and thereby render it as certain who are the grantors *as if their [306 names had been inserted in the granting clause. No one can read the deed and remain in doubt. The scrivener was careless, but the signatures of the parties remove all uncertainty. The mistake, therefore, is an immaterial one. Take the deed as it is, and it convoys a good title. The fair and reasonable rule of interpretation is, to ascertain the intention of the parties from the whole instrument, and then give effect to that intention. Any other rule of construction is absurd, as well as unjust. The age of technicality has gone by. After a struggle for centuries, common sense has gained the ascendency, and this court will not despise its dictates. Should the court sustain this position, it would not affect'the jurisdiction of this case, because one object of the bill is to remove a cloud upon the title.
    2. But if the court should consider the mistake a material one, still it is one which equity will correct. The grantors were paid for a good title, and meant to convey one; and what was honestly intended to be done, this court will consider as done. The power of a court of equity to supply omissions and correct mistakes, especially clerical ones, is too well settled to require the citation of authorities. As respects Joseph S. Williams’ life estate, therefore, there can be no doubt; and this alone entitles the complainant to a decree for possession and the rents and profits since Mrs. Kitchen’s death.
    3. The only doubt, therefore, is, whether a mistake can be.corrected as against a married woman. Let it be remembered that Mrs. Williams has herself received the full benefit of this sale to Carr, unless her friend Jessup has defrauded her. There is no deception or unfairness in the transaction as respects Carr. The single question is therefore presented : Whether, as against a married-woman, the court has power to correct a mistake, which they would not hesitate to correct as against any other person?
    There is no authority against making such correction. In McFarland v. Febiger, 1 Ohio, 194, there was no mistake. The wife knew, when she signed the deed, that it was invalid, having taken legal advice on the subject; otherwise she would *not [307 have signed it. In Martin v. Dwolly, 6 Wend. 1, the wife never intended to acknowledge the deed, but signed it, knowing that it would not be valid without acknowledgment, which she was resolved not to make. In neither of these cases was there any pretense of a mistake ; in both, the omission was intentional. They do not, therefore, touch the present question. In Butler v. Buckingham, 5 Conn. 492, there was simply an agreement to sell and convey, that is to say, an executory contract, which the court would not enforce. But there was no question of a mistake.
    There is no equitable reason why this mistake should not be corrected. The land brought its fair value, and Mrs. Williams has enjoyed the proceeds. The mistake is merely one of the scrivener in leaving out the names in the granting clause. The deed is duly signed, witnessed, and acknowledged. The separate examination of the wife, which is the great object of statute, is proved, not only by the certificate, but by the deposition of tho magistx-ate and others. The wife, too, has often said, since executing the deed, that she intended to make a good one, and if this was not good, she would make another. In this respect the case differs essentially from those above cited. The whole equity is with tho pui'chascr. Nor does the policy of tho law come in his way. The reason why tho court will not decree the specific performance of an executory contract to convey against a. married woman is, that such a contract requires no separate examination; and if pei'formanee were decreed, she might be deprived of her land without statutory evidence of her free assent. But we do not ask specific performance of a contract to convey; we only ask that a clerical omission maybe supplied in a case in which all the forms of law, for the pi’Otection of the wife, have been complied With. There is a broad distinction between an executory and an executed contract in this respect. The wife can make no valid executory contract, and hence specific performance is never decreed against her. But she can make a valid deed, and in the present case designed to do so; and all we ask is, that the court 308] may make her act valid by supplying a clerical ^omission. This was done in McCall v. McCall, 3 Day, 402, and tho widow was held to be barred of her dower by taking this very distinction.
    We have only to add, that in looking over the text-books, as well on the subject of married women as tho power of courts of equity to correct mistakes, we can nowhere find an exception to this power in the case of a married woman; and hence we conclude that no such exception exists.
    
      C. Fox, for the defendants:
    It is believed that no case can be found where a court of chancery has undertaken to enforce specifically the executory contract of a married woman. A deed duly executed is the only instrument known to the law by which she can convoy or incumber her estate. McFarland v. Febiger, 7 Ohio, 194; Catlin v. Ware, 9 Mass. 218; Lutkin v. Curtis, 13 Mass. 223; Powell v. Monson Man. Co., 3 Mason, 347; Watson v. Bailey, 1 Binn. 470.
    The case in 3 Mason, 347, is much stronger than the present. There the wife of Riddle had signed and sealed the deed, but she was not named as a grantor, and was not bound. Mrs. Powell also had signed the deed with her husband, but no grant or relinquishment was contained in tho deed, and afterward they both, for $200, released all their right to tho land; but because their husbands did not join them the deeds were declared void.
    In Martin v. Dwelly, 6 Wend. 9, the very case is decided, and all the authorities are collected on the subject. It is there held that a court of chancery can not compel a married woman, or her heirs, to execute or acknowledge a deed.
    But it is said that the object of this bill is not to compel the specific imrformance of a contract, but only to correct a mistake in an executed contract. This is a strange position. If the contract is executed, the complainant has a complete remedy at law by an action of ejectment. If a valid conveyance has not been made, tho contract is not executed. It is only an engagement to make a deed, and if the contract is valid and ^obligatory, [309 and appears to have been fairly made, a court of equity is bound to decree a conveyance.
    But the first thing to be proved, is the existence of a.contract, for a court never interferes to divest a party of a legal title unless a valid contract exists which it is right, just, and conscientious to perfect by deed.' If Can’ had no equitable right to compel Williams and wife originally to convey, he has clearly no right now to compel a conveyance. If Mrs. Williams had made a valid deed voluntarily, tho chancellor might not have been able to set it aside, but if the party has not obtained a legal conveyance, tho court will not compel it to be made unless the complainant shows that a fair contract has been made for valuable consideration, by persons able to contract. There can be no such thing as a valid executory contract on the part of a married woman. All her agreements are absolutely void, except so far as the statute has given validity to them. The statute has authorized her to join her husband in making a deed. But the statute nowhere authorizes her to join her husband in making any other contract. Equity, in cases'where the wife has a separate estate, and has power to control such property, has considered her a feme sole as to that property, but this is the greatest extent of any departure from the common law rule.
   Grimke, J.

A deed which is intended to convey the legal estate, but which is so imperfectly executed as to fail of effecting that object, is deprived of the character of a conveyance, but may be treated as an agreement to convey, and a resort may be had to chancery for the purpose of enforcing it, and compelling a specific performance; or a bill may be filed for the purpose of rectifying the mistake, when the original deed, as reformed, will take the place of the conveyance which would otherwise be decreed by the court. In Cither case, however, the complainant has only an equity, and is obliged on this account to go from a court of law to a court of chancery. This is the general principle; but the question now intended to be presented is one of more particularity. It is whether 310] the deed of a feme covert, not executed according to *the statute, may be regarded as an agreement to convey, the specific performance of which will be decreed against her, or whether a deed so imperfect may be rectified so as to bind her right. It is familiar to us all that by the common law, a feme covert could not, by uniting with her husband in a conveyance, bar herself of any estate of which she was seized in her own right. It is immaterial whether the disability is regarded as having its reason on the principle that the separate legal existence of the wife is suspended during the marriage, or in the fact that the influence of the husband may be improperly exerted for the purpose of inducing the wife to part with her interest in his favor. The rule itself is one of undisputed authority.

Our statute prescribes the mode in which a married woman may execute a conveyance of her land. It directs that she and her husband shall join in the conveyance, and if this provision is not complied with, then the deed stands as it would at common law, absolutely void and inoperative as to her; and if a deed, the body of which was defective, was still to be treated as an agreement to convey, or as an imperfect conveyance, other provisions of the statute equally essential would be disregarded. The acknowledgment and separate examination would not be to such an instrument as the law contemplates. I believe no case can be found where a mistake in the deed of a married woman has been rectified as against her. McCall v. McCall, 3 Day, 402 is the only one which has been referred to. But it is very different from the present. The deed there was made by the husband alone, of his own land, and it is admitted by the counsel for the widow that, by the law of Connecticut, a husband might by his deed deprive his wife of her dower. The decision which was made, however, is hardly reconcilable with the general principles of the law. It appears that two deeds wore made by the grantor to two of his sons, Roger and Walter. After he had- executed them, he altered his mind as to the dispositions which he had made ofhis property, and intending to give the land which he had conveyed to Walter to his son Roger, and the tract which he *had given to Roger to his [811 son Walter, he altered the deeds so as to correspond with this intention, but there was no new execution and acknowledgment of these deeds. Notwithstanding the whole subject matter of the conveyance was thus effectually altered, the court regarded the instrument not merely as an executory contract, but as a quasi conveyance ; and yet, holding that it only transferred the equitable interest of the husband, decreed that it should be reformed and the widow barred of her dower.

In the case of Martin v. Dwelly, 6 Wend. 9, the deed was made by husband and wife, but was not acknowledged .by her pursuant to the statute. The deed was considered as having no more effect than an agreement, and it was held that a court of chancery would not afford relief against the married woman or her heirs. It was conceded that the deed was inoperative at law, but it was contended that it might be treated as a valid contract to convey, performance of which would be decreed against the wife. But this doctrine was declared to be unsound in principle and unsupported by authority. Baker v. Child, 2 Vern. 61, has been said to be the only ease which contains an intimation that a married woman will be decreed specifically to execute an agreement made during coverture; but in fact no decree was ever made in that case. What appears to be such was the result of an arbitration, to which the parties themselves consented. The ease of Butler & Atwater v. Buckingham, 5 Conn. 492, is an affirmance substantially of the general doctrine which is to be collected from all the books. It was there held, that an agreement of a married woman, with tho consent of her husband, for the sale of her real estate, was absolutely void in law, and could not be enforced in equity.

But there is another view of the case which has been taken by the complainant’s counsel. Considering the omission of the names of tho grantors in the granting clause of the deed as a mere clerical error, it is contended that tho conveyance is in truth not defective, and that yet tho complainant is entitled to tho interference 312] of a court of equity-. But if this is the ^effect of the omission, where the deed is signed and sealed by the husband and wife, and in all other respect executed according to law, then the c’omplainant has a valid legal title, and his remedy at law is perfect. And if the deed were produced, so that that fact could be certainly and distinctly ascertained, we should probably have no hesitation in so deciding. Either tho conveyance is defective or it is not. In the first case, the mistake can not bo corrected as against a married woman ; in the second, there in no defect to be rectified; and, in either event, tho bill must be dismissed.

Bill dismissed.  