
    
      Thomas McDowel and Wife v. Alexander H. Chambers et al.
    
    The court overruled the objection to a deed of marriage settlement, that the-schedule of the property was inserted in pencil — holding that all which is required is, that it be in writing, and that this is complied with, though the writing be in pencil, and not in ink.
    The operation of a deed is from the time of its delivery, and not from the date-of the instrument. The date is no part of the deed, and proof may be made that the execution took place on a day different from the date inserted in the deed.
    
      Before Johnson, Ch. at Fairfield, June, 1846.
    Johnson, Ch. The complainants, in contemplation of marriage, entered into an agreement, which was intended to secure to the separate use of the wife, then Martha E. Luter, all the property of which she was possessed, and to protect it against the creditors of the husband, who was then insolvent, and the covenants of the deed were calculated to effectuate these objects. James C. Neil, being the person nominated the Trustee, and the conveyance being to him, the intention to settle all her property is expressed, but there is no schedule accompanying it, and a blank was left in the body of the deed for the purpose of inserting the description; that was done in pencil before its execution; but when it was put in the hands of Mr. Elliott, to be recorded, he, with the consent of the trustees, retraced the pencil marks with a pen, and on inspection, it appeared to have been accurately done. It bears the date of the 3d of November, 1841, and was not recorded in the office of the Secretary of State until the 8th of February, being more than three months after its date, but it is alleged in the bill, that it was, in truth, executed on the 30th of November, and that inserting the 3d was done by mistake. The defendants are creditors of the husband, and have caused executions to be served on the property, and the bill prays for a perpetual enjoinder restraining all further proceedings thereon.
    The defence rests upon the grounds, 1st. That the deed was void, as to creditors, not having been recorded within three months, (the time limited by law) after its execution. 2d. For'want of a schedule, or other suitable description of the property.
    There is no evidence at all, as to the mistake in the date of the deed. John F. Young, a merchant of Winnsborough, the only witness examined to the point, only proves that there was a charge in his books to the wife, in the name of Martha E. Luter, of the date of 1st December, 1841, and thinks she was not married at the time. He had heard of the marriage, and the settlement; that might well have happened, and yet the deed might bear its true date; that is conclusive as to the rights of these parties, and it is unnecessary to consider the other question. .
    It is ordered and decreed that the bill be dismissed.
    The complainants appealed, on the following grounds:
    1. Because the Chancellor mistook the evidence in regard to the registration of the marriage settlement, it being clearly proved, and conceded by the defendant’s counsel, that the deed was recorded within three months.
    2. Because, even if the deed were not recorded, it would be good against creditors of the husband existing prior to the marriage.
    3. Because the. decree is utterly contrary to the law and the evidence.
    Boyce, for the motion.
   Johnston, Ch.

delivered the opinion of the court.

The court is satisfied that the objection to the deed, on account of the schedule of property being inserted in pencil, is not well taken. All that is required, is that it be in writing; and this is complied with, though the writing be in pencil, and not in ink. (See Story, prom. notes, 14; 5 Barn. and Cresw. 213.) Then, as to the registration. The proof is beyond doubt, that it was made within three months from the execution of the deed. Young, an attesting witness, says it was executed <! the last day oí November, or the first of December,” “ a few days before the marriage.” This is supported by Neil, who says that the marriage took place about the 3d or 4th of December, and that the deed was executed but a few days, (certainly not a week) before; and that after it was registered in the office of Mesne Conveyances, he is sure he took it to the Secretary’s office, for registration the^e, within three months from its execution, having been advised that it must be recorded there within that time. The operation of the deed is from the time of its delivery, and not from the date of the instrument. The date is no part of the deed; and, according to our own case of Barmore vs. Jay, ( ) proof may be made that the execution took place on a day different from the date inserted in the deed. The proof here is very satisfactory, as to the true time of the execution. And, indeed, upon inspecting the deed, the whole matter is explained. The deed and probate were drawn out the of November.” Before it was executed, the blank was filled up in pencil with the figures “ 30.” But upon the instrument being handed to Mr. Elliott, the register of Mesne Conveyances, for recording, (which, according to his memorandum on the deed, was on the 3d of December,) he filled up the blank with “ 3d” instead of ■“ 30th,” which has occasioned the whole difficulty. The Act requires the registration to be made within three months of the delivery of the deed, and has been fully complied with in this case. It is ordered and decreed, that the decree appealed from be reversed, and that the defendants be perpetually enjoined from enforcing their claims against the property mentioned in the deed; which is hereby adjudged to have been duly executed and regularly recorded ; and that the defendant, Chambers, pay the costs of suit.

Harper, Ch. Dunkin, Ch. and Caldwell, Ch. concurred.

Decree reversed.  