
    Kemper vs Hughes.
    Appeal from the Garrard Circuit.
    Chancery.
    Case 66.
    Case stated.
    
      Vendor and vendee. Exchange of lands. Election.
    
    
      June 11.
   Judge Beech

delivered the opinion of the Court.

Hughes exhibited this bill in chancery, seeking a rescission of a purchase of land, which he had made from Kemper, upon the alledged ground of Kemper’s inability to convey the title according to the contract, and of fraudulent representation by him in regard to his title at the time of the sale.

Kemper, in his answer, denies all the allegations of fraud, and they are wholly unsupported by testimony. He sets forth his title, relies upon its validity and resists ■a rescission of the contract between him and complainant.

The Court below set aside the contract and decreed the relief, and Kemper has appealed to this Court.

The land in controversy consisted of two tracts, one containing sixty nine and the other fifteen acres, To the larger tract Kemper claimed to have derived title under a deed from Samuel Bixler and wife, to the latter of whom the land had been devised by her father. The validity of his title to this tract turns exclusively upon the conveyance from Bixler and wife, as it is very satisfactorily shown that their title or the title of Mrs. Bixler, was good and free from doubt. The deed purports to have been made in consideration of fourteen hundred and sixty dollars, but it appears from the answer of Kemper and the evidence in the cause, that the consideration was one hundred and three acres of land, which he caused to be conveyed to Mrs. Bixler, and $200 in money. It is insisted on the part of the appellee, that the transaction amounted to a mere exchange of lands with her, and as such was not binding upon her. But whether it should be so considered, and if so, whether the consequence would follow as contended, it will nol be necessary here to decide, as we are of opinion her deed to Kemper is not legally authenticated so as to pass her title. Her acknowledgment was taken before two Justices of the Peace of the county of Garrard, where all the parties resided ■and where the land was situated.

Two Justices of the Peace of the county where the land lay, and the grantors resided, have authority to take the acknowledgmenlof deeds of femes covert, but their certificates must be under their hands and seals, otherwise it was defective.

That mode of authentication is authorized by our statutes regulating conveyances, by the act of 1785 and also by the act of 1796, but both the acts require the certificate of the acknowledgment, privy examination, &c. to be returned by the Justices under their hands and seals. Their certificate in this case is not in conformity with that requisition. No seals are attached to their signatures and on that account it is deemed fatally defective. The requisition in each act is imperative, and we are constrained to regard a compliance with it as essential to a valid authentication. We are aware of no authority which would authorize it to be dispensed with.

It follows, from this view of the case, that the appellant failed to show title, and consequently, that the Court below was right in decreeing a rescission of the contract between the parties.

But another view of the case is presented by the appellant, upon which he relies.

Husband and which "was'rhe wife’s by inheritance, and .made a deed, which ineffectual to pass her title, the wife took possession, -died in possession -of the landreceived in exchange, and willed it to -her children, on bill filed by (he .purchaser ior a confirmation of title Chancellor u,pon a willingness-expressed by some of her-heirs, who were adults, should hold up the case and put the others upon their -election to confirm or avoid the contract when-of full age.

After setting forth .in his answer the trade with Bixler ¿nd wife, or rather with Mrs. Bixler, he alledges that she, ■and her husband had taken possession of the one hundred and three acres of land, which he had caused to be conveyed.to her: thatsheafterwardsdiedu.pon.it, leaving a will, by which she devised it to her children. That her ■husband had subsequently died, and that a part of her ■children were still in possession claiming the land. He further alledges, and it very satisfactorily appears from the testimony, that the trade or exchange with Mrs. Bixler, was a very favorable one for her and her children. He makes his answer a -cross bill against the devisees or heirs of Mrs. Bixler, and prays, if his title should be deemed ■defective, a confirmation of it, and for general relief. Mrs. Bixler -it appears, left eleven-children, two of -whom answered as adults, -and the residue as infants, by their guardian ad litem. The,former admit that the trade between their mother and the complainant, Kemper, was ■an advantageous one for her and her children, and express ■a willingness for its confirmation, and offer to release all their interest and title to the land attempted to be-conveyed by their mother to complainant In the answer of the infants it is also stated that they admitted the trade was an advantageous one for their mother, and they suppose it would be to their interest that-it should be eon-firmed. The Court below dismissed the cross bill p-bsQ-. ;]utely, and we think erroneously. It is true, as- the contract and deed between the complainant and Mis. Bixler «were void on her part, the Chancellor would have no .power to confirm it on the part of her infant heirs. They ■could give no consent, certainly none which would be ■obligatory upon them- It would, in effect, be a new contract between the parties, which infants could not make, ■and which the Chancellor would have no authority to. enforce. But as to the adults, we- think the Chancellor might properly rule them to an election whether they would keep the tract conveyed to their mother or surrender it and take the other; and upon their failure to elect, decree a release of their title to the complainant. The absolute dismissal of-the cross bill was, therefore, erroneous. As to the adults that answered, at the instance of the complainant; it would have been proper to have efecreed that they convey and release all their title to the land embraced in their mother’s deed to the complainant. The Court might also, at the complainant’3 instance, have retained the case with a view to rule the infant heirs, as they might become of age, to an election.

McKee and Letcher Tilford for appellant; Bradley for appellee.

Regarding the transaction between Mrs. Bixlerand the complainant, as the facts, we think, authorize it to be considered, as a mere exchange of lands, it would be most iniquitous for her heirs to hold both tracts. And the power of a Chancellor to interpose, should such an effort be made by them, can hardly be doubted; and hence in any view of the case, the cross bill should not have been dismissed absolutely.

The decree must be affirmed, except so far as it dismisses the cross bill, and to that extent it is reversed, and the cause remanded, that such relief may be decreed the complainant, should he desire it, as to the adult heirs, and the cause retained as to the infant heirs of Mrs. Bixler, as herein indicated, or otherwise dismissed without prejudice.

The appellee, Hughes, will be entitled to his costs, but upon the reversal as to the cross bill, the parties thereto will each pay their own costs.  