
    E. D. Kottman & Wife, v. C. K. Ayer.
    The law does not require, that the nature of the estate which the grantor had should be set out in the deed.
    The general rule is, that an alien may purchase, but he cannot hold real estate; yet his title is good until office found, and no one but the Lord of the escheat can oust him of his possession.
    An alien husband certainly has some estate in the land of his wife, and comes within the description of the person with whom the wife may join in conveying away her real estate.
    The word “inheritance” does not necessarily mean an estate which has descended, but may as well mean any estate which may descend or be inherited.
    The Act of 1795 does not require that the words “positively and bona fide/* should be used in the certificate of the wife’s renunciation of her inheritance, but that the certificate should be to the “effect” “that the woman did declare, &c;” and the Court held that the word “actually” used in a certificate, was of the same import and to the same effect as the words “positively and bona fide.”
    
    The object of recording is notice; and the general rule in relation to the regís, tration of deeds, is, that they are good, without recording between the parties» and against all other persons having notice of them.
    The renunciation of the wife’s inheritance, under the Act of 1795, is a mode of conveyance, and the recording is not necessary to make it “ complete and legal,” nor for any other purpose than, that for which other deeds are recorded.
    If a wife join her husband in a conveyance of land, and renounce her inheritance, according to the Act of 1795, and the deed be recorded in the lifetime of both husband and wife, though not within six months after the renunciation, it will effectually bar the wife’s inheritance
    
      The decision inHillegas v. Hartley, considered and reversed.
    
    
      Tried before Mr. Justice Evans, at Barnwell, Spring Term, 1840.
    Report of the presiding Judge:
    This was an action of trespass to try title. The land belonged to Dr. Gillett, who, by his will in 1818, devised it to his daughter, Julia, who subsequently intermarried with James liiggin-bottom, an Englishman, who was never naturalized. On the 12th February, 1835, Iiigginbottorn and his wife, Julia, joined in a conveyance to Mary Carr for the land. This deed did not describe the land as the estate of the wife. More than seven days after the date of the conveyance, as appeared from the dates and the certificate, the wife renounced her inheritance before a justice of quorum. The certificate indorsed and signed by the wjfc, contains every thing required by the first proviso oi tlie Act of 1795, but is deficient in what is required by the second proviso, vie: that the wile did declare that the release was “ positively and bona fide executed at least seven days before her examination.” The deed was recorded 12th Oct., 1886 but not within six months, but before the death of the husband, as well as could be ascertained. Mary Carr convoyed the land to Jabcz G. Brown, as trustee, who, under an order of the Court of Equity, sold and conveyed it to the defendant. The deed from Brown to Ayer, was made after the death of Higgmbot-tom, and was not recorded within six months. Iiigginbottorn went to England, where he died, and his wife intermarried with Kottman. They are the plaintiffs. The question was, whether, by the facts above stated, Mrs. Kottman was barred of her title to the land.
    The first objection was, that the deed of Iiigginbottorn and wife does not describe the land as the estate of the wife. This I did not think necessary—the law does not require that the nature of the estate which the grantors have, should be set out in the deed.
    The second objection was, that the husband was an alien. The husband is regarded as a purchaser of his wife’s estate, and as such, could convey the life estate which he acquired in her land, and his conveyance would be good to the purchaser, although he was an alien, against all but the escheat. None but those who are entitled to the escheat, can question the title of an alien purchaser of an estate or his alienee. I thought, therefore, the’ wife, by joining such a husband in a conveyance with a sufficient renunciation, might bar herself of her estate.
    The third objection was, that the Act of 1795 gives a justice jurisdiction only in cases where the estate is cast on the wife by descent, and as that was not the case here, the renunciation should have been before a judge, according to the Act of 1731, Some doubts have been expressed on this point, but it seemed, to me the uniform construction has been otherwise. The word inheritance, may be used as well to denote the quantum of the tenant’s estate, as the way in which it originates.
    Another objection was, that Brown’s deed to Ayer was not recorded in six months. This I thought wholly immaterial. The deed was good as between them—but even if void on that account, it would not revest the estate in the plaintiff, Julia, if she had legally divested herself of it.
    The next objection was, that the renunciation was not sufficient in law to transfer the estate from the wife. The second proviso of the Act of 1795, says, that a certificate in the form of the one prescribed in the second clause for dower, shall be indorsed, to which shall be invariably added words to the effect, “ that the wife did declare the release was positively and bona fide executed at least seven days,” &c. The renunciation in this case contains the words, that “she did actually join her husband.” The word “actually,” may be of equivalent import with “positively”—but there are no words in the renunciation of the same import as bona fide. The usual printed form, and so far as I remember, all the renunciations which have come under my inspection, contain the words “bona fide.” For the want of these words in this renunciation, I was inclined to the opinion that the deed was void as to the wife.
    The last objection was, that the deed from Higginbottom and wife to Carr, was not recorded within six months. But for the case of Hillegas v. Hartley, 1 Hill’s C. 11., 106, I should have thought the deed good, as it was recorded in the lifetime of the husband. The Act of 1795, says the deed shall not be complete until recorded, but if recorded before any new rights attached, by marriage or descent, I should think it sufficient. The Registry Act of 1785, makes the deed good between the parties, and if completed before any new rights have accrued, I do not perceive, on the construction of the Act, why the omission to record should avoid the deed. Until the case was quoted, I did not recollect any such decision, but it is direct and conclusive on the point, and I did not led at liberty to decide otherwise than in conformity with it. Under my direction, the jury found a verdict for the plaintiffs.
    The defendant appealed, and moved for a new trial, on the following grounds:
    1st. it is respectfully submitted, that his Honor erred in charging the jury, that the renunciation of inheritance, on the back of the conveyance from Higginbottom and wife to Mary Carr, was not in accordance with the Act of 1795.
    2d. That his Honor erred in charging the jury that the deed and renunciation were invalid, because they were not recorded within six months from the date thereof.
    
      Plaintiff’s objections io defendant's title.
    
    1st. That t\\e words of the deed from Higginbottom and wife, are insufficient to convey the interest, estate and fee of the wife. Docs not describe the land as her land. (Overruled by his Honor on the Circuit.)
    2d. The deed was executed by wife and Higginbottom, an alien husband; and though in other respects formal and legally valid, is insufficient to divest surviving wife of her fee. (Overruled.)
    3d. That the words of the renunciation are insufficient to convey any thing but her inheritance, (even if that) and this was not her inheritance. (Overruled.)
    4th. That the A. A. of 1795, 5 Stat., p. 250, under which this renunciation was taken, applies only to inheritances, (i. e., to lands coming to the wife by descent,) and not to grants and devises, &c., to the wife dum sola, in which last cases, the renunciation must be taken under A. A. 1731, 3 Slat., p. 302, before a Judge; and this renunciation having been taken under A. A. 1795, before a magistrate, is null and void. (Overruled.)
    
      5th. That the deed from Brown, (who claimed under the deed from Higginbottom and wife) to defendant, was not recorded in time, and, therefore, cannot bar the claim of the wife surviving. (Overruled.)
    6th. That the renunciation is not in accordance with the A. A. 1795, 5 Stat., p. 256, under which alone it purports to have been taken, and is, therefore, null and void. (Sustained.)
    7th. That the deed and renunciation from Higginbottom and wife, (though containing proper and sufficient words, and though taken before the proper officer and in proper form) were not recorded within the time prescribed by law, and are, therefore, absolutely void as against surviving wife—at least the renunciation is void for want of recording. (Sustained.)
    A. P. Aúdricí!, for the motion.
    An alien can buy, hold and sell to all the world, except the State, and then, until office found; 3 Brev. 245; Lawrence ads. Cheney, 1 Spear, 365; cannot an alien then bo a purchaser? Vide, 2 Black. Com. 242, as to the meaning of purchase. If the fee was not in the alien, it was in his wife, and he consented that she should convey it; the title was therefore good. And was not this an estate of inheritance in the wile? The estate given by will cannot be greater than an estate of inheritance; if the deed can convey her inheritance, it can convey any less estate.
    As to the plaintiff's fourth objection, the act of 1795 covers the ground taken, and accomplishes the intention of all the preceding acts on the subject. By the forms of the renunciation, the wife was to be warned and protected, strangers also, and those claiming through her, were, by the record, to be informed of what had been done with her estate. The act was intended to substitute an easier form, than that of fines, common in England. It did not do away with, but permitted the old forms still to be used, and rather legalized them. The form of renunciation is not material, nor prescribed in words, so the act be substantially complied with, it is sufficient. This is not a remedial statute, but intended to facilitate the conveyance of the wife’s estate, and enable property to change hands more readily. As a release is not void, because the exact words of the act are not used, neither is a renunciation, provi-tied all the substantial requisitions are observed. After the wife has signed the release, and the certificate before the justice, she has done all required of her by the act, and the deed is good, as against her and her husband. The purchaser is also next to be protected against those claiming through the wife, and hence the provision for recording the release; the time was not fixed. By what authority is the form, said to be in general use, promulgated? The act contains none. If the words ‘‘positively” and ubona fide” are necessary to be used, they are to be used by the justice, and not by the wife. The certificate, it seems, is unnecessary, unless a separate instrument, or release is used; in this, the words are to be inserted. Statutes Should be construed, so that the innocent should not be damnified. 1 Thomas’ Coke, 8; vide Act of 1731, 3 Stat. 302, sec. 29; Act oí 1707, 7 Stat. 198, sec. 7; Act of 1778, 4 Stat. 410, sec. 10; Act of 1795, 5 Stat. 255, and Gough v. Walker, 1 N. & M. 469, to prove that the Legislature intended a substitute for fines, and not to abolish old forms. 3 Bacon’s Abr. 189, Title Fine and Recovery; Act of 1795, note 1 in 2 Thomas’ Coke, 491 and 492, and note 2, 295; note u, 3 Thomas’ Coke, 69 and 93; Wotton v. Hele, 5 Saund. 178; Davis v. Lowndes, 46; E. C. L. R. 519; Wright v. Piumptrc; 5 E. C. L. 11, 349. The parties and privies to a fine, were barred with or without proclamation, and were barred after five years after the rendering of the fine. By signing the release, Mrs. Higginbottom was barred, or she was barred from analogy, after five years from that time. The party to the deed itself should not take advantage of an accidental omission. This was a bargain made in good faith; twelve years have since elapsed, and the plaintiff received the full value of the land.
    The case of Hillegas & Wife differs from this, as the claim in that case was made by strangers, and the right of others had attached before the recording. The record is to give notice; the parties and privies have it by the necessity of the case. Neither of the acts, on this subject, specifies any time for recording, but the Act of 1785, which requires it to be done in six months, and makes deeds not recorded even in that time, legal and valid against parties and their heirs. They are excepted. In Gough v. Walker, I Nott & M’Cortl, 477, Judge Cheves dissenting, says, the deed ought to be recorded nunc pro tunc. Actual personal notice to a subsequent purchaser, is sufficient, and one having this, and seeking to protect himself because he had not constructive notice also, is seeking to commit a fraud. Martin v. Sale, 1 Bail. E. 11. I. Notice isas good as registration; a contrary decision will uproot the tenure of land all over the State, and flood the country with litigation. Givins v. Branford, 2 M’C. 152; Anderson v. Harris, 1 Bail. 315; Fowke & Johnson v. Woodward, 1 Spear, 283. It is no sale until the deed is delivered ; and suppose the wife signs and does not deliver it until eight months after, it then cannot be recorded in six months, Brown v. Vernon, 16 Vermont Hep., 563; 14 Mass. Rep. 141; bona fide means only tiiat the purchase shall be a good and not a feigned, one.
    It is not requisite to record a renunciation of dower in six months; why one of inheritance, when the words are the same in both ?
    Hutson, contra.
    
    First—The form, and then as to the recording. We ask only words equivalent to the words bona fide, and not the very words themselves. “Actually” and “bona jidefi have a very different meaning. The deed is not complete until it is recorded; must it not, then, be recorded at some fixed time? “Previous to the death of the wife,” is too indefinite, nor is “within reasonable time” more satisfactory, nor “a year and a day.” Nineteen months elapsed, in this case, before the deed was recorded. It is not complete until it is recorded; what then is the effect of non-recording? It is not a conveyance until recorded; and no exception is made in the Act of 1795, of the parties and privies. Mrs. Higginbottom being a feme covert, could not be a privy, or take notice. Six months should be the time for recording, in analogy to other deeds, in accordance with the ruling, in the case of Hillcgas & Wife v. Hartly. The case of Fowke u. Woodward, is inapplicable to this case; in that, it was a deed of marriage settlement, and the wile signed durn sola; in this, she was not a feme sole, and could not be a party, &c,
    Bellingek, same side.
    See all the acts in reference to recording, down to that of 1795, which requires that the other certificate of renunciation must be immediately endorsed on the back- of the deed, or as a separate instrument. Clancy’s Rights of Married Women, requires returns to be strictly made, &c. 2 Kent’s Com. 168, Daniel v. Rose, 1 Nott & M’C. 33. The deed of a married woman is void absolutely; 1 Story’s Equity, sec. 243. A married woman is disabled from doing any act without the consent of the husband, Lassiter v. Turner, 1 Tanner, 413; Martin v. Dcvcllcy, 6 Wend. 9; Robertson v. ■-, 2 Murphy, N, C. II., 390; Robinson v. Bush, 1 Harris & Mc-Henry, 55;--v. Young; 2 do. do., 43; andNickelson v.-; 3 do. do, 409. A warranty by a feme covert, will not bar her or her heirs; Lewis v. Waters, 2 Harris & McHenry, 43. The words positively and bona fide arc absolutely necessary in the certificate, and the act has not been complied with. The deed of a j'erne covert docs not pass her land, and an acknowledgment. gives no additional effect between the parties or privies; the woman is not affected as to third persons, by recording ; Hepburn v. Dubose. 12 Peters, 345. A dower must be perfect when it is made; Scanlan v. Turner, 1 Bail, 421. The mode prescribed, must be strictly followed; Brown v. Spann, 2 Mills, 12; Westbrook a. Habersham, 2 M’C., 117; Mayor. Feaster, 2 M’C., 141; 10 Coke’s Rep., 42; Fitts v. Wicker, 3 Hill, 199. The Statutes must be strictly pursued. An alien cannot take land: Jackson v. Lang, 3 Johns., 121; 4 Watts & Sergeant, 145; Roper on Husband & Wife, 5 and 6. No dower allowed to alien wife, &c.; Miner’s Abridg, head Alien, 2 Kent’s Com., 130. In the case before this Court, the husband could convey nothing; 2 Brev. Dig., 350; Dick v. Dick, (manuscript cases.) The Act of 1795 refers only to inheritances, and not to devises. The recording should be in six months. The death of the wife makes no difference, there is no change of interest; 1 Rice’s Digest, head Descent, 218; Smith ads King, Rice’s L. R‘, 15, 2 M’Mullan, 512; Story’s Equity, sec. 426; 9 Legal Judgments, 115.
    Patteiisow, for the motion.
    It is proposed, with the leave of the Court, to take up the second question made by the brief first. The counsel of the plaintiff has truly observed that our legislation on the alienation of the rights oí feme coverts in land, had reference to the common law doctrine and practice of fine, as a mode of conveyance; and it is to be regretted that it did not occur to the learned counsel to resort to that doctrine and practice as a source from which light might be obtained on this question. One of the most material rules, we are told, no high authority, to be observed in the exposition of Statutes, is, to enquire how the law stood before the enactment in question, and thus ascertain the changes, innovations and amendments it was intended to introduce into the existing law. By By this course, any apparent difficulties or omissions in the Statute may be explained or supplied. Therefore, although fines, as a mode of conveyance was never adopted in this State, and has been abolished in England, and in all the States of the Union, in which they had been adopted, yet a brief recurrence to the doctrine, and practice on the subject, would seem to bo appropriate and even necessary in the discussion of this question.
    Blackstone defines a fine to be, “an acknowledgment of a feoffment on record.” The substance of a fine was an agreement between the parties, enrolled amongst the records of the Court, as the compromise or termination of a fictitious suit, commenced for the purpose of assuring the title to lands, and was always resorted to, for the effectual conveyance of the estates of feme coverts, and barring the right of dower. The nature of the fictitious suit seems not to have been material, for a fine might be levied on any writ, whereby lands were demanded; covenant was, however, the most usual. At common law, a feme covert might, with the concurrence of her husband, convey her estate or relinquish her right of dower, her free will and exemption from undue influence, having been ascertained by her separate examination by a judge, or commissioners authorized to take it by a writ of dedimus poiestatern. Although fines were almost always taken by dedimus potesta-tem, they were recorded as being taken in open Court. “Fines” says Blackstone, 2 Com. 349,” are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvill and Bracton, in the reigns of Henry the 2d and 3d, as things well known and long established; and instances have been produced of them even prior to the Norman invasion.” They certainly existed long before the passage of any act of Parliament, on the subject of registration of conveyances.
    Blackstonc, after enumerating several matters to be observed in levying a fine, proceeds: “If there beany feme covert among the cognizors, she is privately examined, whether she does it willingly and freely, or by the compulsion of her husband. By these acts, all the essential parts of a fine is completed; and if the cognizor die the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable, still the fine shall be carried on in all its remaining parts; of which one was the enrolment of record; 2 Com. S51. The commissioners appointed by a dedimus polestalcrn, were directed to certify the acknowledgment of the fine within twelve months after it was taken; 1 Cruse on Fines, i)5. When a year and day had elapsed from the acknowledgment of a fine, before it was recorded, an affidavit that all the parties who parted* with any interest by the fine, were still living, was required to be produced, otherwise it could not be recorded. Barnes, 215; 1 Shep. Touch.; 5 note (25) Law Library edition. See also 13 Viners’ Abr. 337; II. b.; Title, Fines; page 251 & 2, same volume and title; 1 Cruse on Fines, 40, 98. From these authorities the conclusion is, that although the husband and wife, they being cognizor, should both or either die within an hour, a day or a month after their examination, still, if the certificate of the examination, which was the evidence of their agreement to the compromise of the fictitious suit, was returned to Court within a year and a day, it might be recorded, and the fine completed; and if returned at any time, after a year and a day, it might be enrolled, and the proceedings completed, provided the parties were living; but if not returned within a year and day, and either had died in the mean time, it could not be recorded, and the fine failed. Now, it docs not appear within what time the renunciations of femes coverts, taken or certified by the Chief Justice, pursuant to the custom mentioned in the preamble to the Act of 1731, were recorded in the office of Pleas; but we must presume that the Chief Justice was familiar with the practice in relation to fines, for which, the custom, for want of an office for passing fines, was merely a substitute; and it must also be presumed that the Chief Justice, in taking, certifying, and recording the renunciations of femes coverts, adhered as nearly as circumstances would permit to the practice in the mother country in relation to fines: that is to say, he certified them and directed them to be recorded, if returned within a year and day from the time they were taken, without inquiring whether the parties were dead or living: that he did the same, if the parties were living at any time, though more than a year and day had elapsed; but if more than a year and day had elapsed, and either of the parties were dead, the renunciation was neither certified nor recorded, and was void. The Act of 1731 confirms conveyances taken pursuant to the custom, and enacts or establishes the custom as the law of the land. The act is merely declaratory of the common law of the Province. It does not add a single provision. It is silent as to the time within which renunciations were to be recorded, leaving that, with all other details, as fixed and established by the existing law. The same subject was thrice before the Legislature prior to the Act of 1795, viz: in 1731, 1767 and 1778, and on neither occasion did it occur to the Legislature to be necessary to limit the time within which these renunciations were to be recorded, leaving that matter entirely as regulated by the common law. Is there any good reason to presume that the omission to limit the time for recording renunciations by the Act of 1795, was unintentional? Is it not more reasonable to presume that the authors of that act, like their predecessors in 1731, intended to have the matter as it stood at common law? But if there were grounds for believing that it was casus omissus on the part of the Legislature, is it competent for a Court of law to supply the omission? Can the Court legitimately remedy the supposed, the imaginary, or even the real and palpable defects of a statute? If it can, then by adding another proviso to the last section of the Act of 1795, the Act may be made to conform to the opinion thrown out in Hartley and Hillegas? If the Court can amend the act by adding: “ Provided, also, that unless such renunciation be recorded as aforesaid, within six months from the taking thereof, the same shall be void to all intents and purposes.” With nothing short of an amendment to that effect, can the judgment of the Circuit Court, in this case, be sustained; and it is respectfully submitted that such amendment, even if proper and expedient, can only be effected by the Legislature. “A casus omissus,” says Mr. Justice Buller, 1 Term Reports, 52, “can in no instance be supplied by a Court of law; for that would be to make laws. Judges are bound to take the Act of Parliament as the Legislature have made it.” It was said with much force in the dissenting opinion in Cough and Walker, that, “when the Legislature deems time, essential as the rule of its policy, it fixes a precise time.” This is strictly true and applicable to the question under consideration. “When a statute imposes terms, and prescribes a thing to be done, within a given time, the lapse of even a single day is fatal, even in a penal case, because no Court can admit of any terms, but such as directly and precisely satisfy the law.” Farrall v. Tomlin-son, 5 Bro., P. C., 438; Dwarris, 748. The recording required by the Act of 1731, was by analogy to the recording of fines at common law. That practice existed long before the policy of registry laws had occurred to the English Parliament, when it became expedient to give publicity to the transaction, it was done by proclamations and not by registration. The recording was intended to give permanency and solemnity, and not notoriety to the transaction; and to avoid the trouble and expense of applying for writs of dedimus polestaturn, Justices of Quorum were authorized by the Act of 1795, ex offtcio, to take renunciations; as a matter of convenience, the office of Register of Mesne Conveyance is substituted for the office of Common Pleas; for it would be obviously inconvenient that the deed should be recorded in one office, and the renunciation in another. There is no ground for supposing that the recording, required by the Act of ’95, has any analogy to the Act of ’85; the latter makes nothing void; it merely provides that a junior recorded, shall prevail against a senior conveyance, unrecorded. Therefore, to hold the renunciation void for not being recorded within six months by analogy to the Act of’85, would be illogical and unreasonable; it would be giving the Act of ’95 an effect, which the Act to which it is supposed to be analogous, was not intended to have, and cannot possibly have. In Gough v. Walker, and Hillegas v. Hartley, it was perceived that the renunciation ought to be recorded within some time, and the difficulty was in fixing that time. In the former case, it seems to be, that it must be recorded within a reasonable time, or at least in the life time of the husband; while the minority, a respectable one surely, held that it might be recorded within any time, even after the lapse of fifty years, the death of the husband and suit brought. The difficulty is removed by the construction of the Act now respectfully submitted, and without in the least questioning the judgments in those cases. This Court is not, therefore, invoked to correct any error of judgment. It is only called upon to qualify some of the reasons given for those judgments; reasons which, in one, certainly, were not adopted without some hesitation. This, it is submitted, may be done without overruling any case, and with due respect to the maxim stare decisis. “But I wish not (1 Kent’s Com., 477) to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted or limited in their application. It is probable that the records of many of our Courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than have the character of our laws impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.”
    The reasons for a judgment are said to be as they certainly are, of much importance; but nevertheless a judgment, and the reasons on which it purports to be founded, are not identical. A judgment may be valid, though the reasons for it be faulty. Where more than one reason is given for a judgment, if one is sound, it is sufficient; the others may be questionable, or even palpably erroneous, yet the judgment is unaffected. It is possible for several members of the same Court to come to the same conclusion, for different and even opposite reasons. In such case, all the reasons cannot be correct, yet the conclusion may be unquestionable. Ram on Legal Judgment, 19-23; vol. 9, Law Library.
    If it be asked, if the recording required by the act was not intended to give publicity to the transaction, why was not the same means adopted to give it notoriety, as was required in relation to fines? The answer is, the release of which the renunciation is part, was within the provisions of the Act of 1785, which fulfilled the policy of registration; besides it is to be observed, that a fine was an absolute bar. and could not be questioned alter the lapse ofouc year, originally; tut afterwards extended to five years by statute; whereas a renunciation under the Act of’31 or ’95 can be impeached within any time, provided the statute of limitations dees not interfere, even alter the lapse of half a century, as was the case in Gough v. Walker; therefore, the same precautions were not necessary.
    Wc will now return to the first question made by the brief-
    As to the form of the certificate, we have to rely on the Act of 1795. On this point, no aid is to be derived from the common law, or from the Act of 1731. The substance of the examination is very distinctly set forth, and is very much the same as that prescribed by the Act of 1795, but of the form of the certificate which was evidence of trie examination nothing is said, and it is probable that form wras not deemed material, provided the law was substantially complied with—that this certificate was made out by different words, without reference to any special phraseology. The only formal requisite to the certificate seems to have been, that it was required to be under the seals of the persons who took the examination by virtue of a dedimus potestalem.
    
    What was the first and great object of the Act of 1795? Clearly, as we learn from its provisions as well as from its title, to facilitate the conveyance of real estate; that is to say, to make easy, to free from difficulty, and as it were, to popularize a subject, which, by the common law and previous legislation, was involved in much obscure and intricate learning, and in unnecessary and unmeaning fictions and formalities, for the most part of fcedal (feudal) origin—to disincumber the titles to lands of the loads of parchment, leases, releases, indentures, fines, recoveries, feoffments, &c., in which they were enveloped. This the condition of the country called for; where every man, who owned any thing at all, owned land; where land was comparatively of less value than any other property, and was as frequently the subject of sale as any species of chattel; it almost became necessary, and was intended, to enable every person who could write at all, to write a conveyance. This object, it was the intention of the Legislature to effect, by adopting a simple plain deed of bargain and sale.
    And why did the Legislature prescribe, or rather suggest, forms? Clearly, that persons unacquainted with the mystery of conveyancing, might not be at a loss; for before the Act of 1795, conveyancing was a mystery, not within the reach of the vulgar. That the Legislature merely suggested forms, is said, advisedly and on the authority of the words used in every section of the act; and it would be a serious reflection on the wisdom of our ancestors, to suppose, that they intended to prescribe arbitrary forms, which, if not literally conformed to, conveyances might fail, though the provisions of the law had been substantially complied with. The words used in every section, as to matters of form, show conclusively, that it was not intended any particular phraseology should be literally adhered to.
    Thus, in the first section, it is said, “the following form or purport of a release, shall, to all intents and purposes, be valid and effectual to convey,” &c. So in the second section; after prescribing what a woman shall do to bar her right of dower, it is provided, that a certificate under the hand of the Judge or Justice shall be indorsed upon the release or a separate instrument, to the same effect, in the form, or to the purport, of the one set forth.
    Again, in the third section, it is provided, that a certificate signed by the woman under the hand and seal of the Judge or Justice, shall be immediately indorsed upon the release, or a separate instrument of writing, to the same effect, in the form, 
      or to the purport of the certificate prescribed in the second clause, as to dower.
    Now, what is the import of the words, “to the effect”—“to the purport?” Clearly, that it was not intended that the forms prescribed were necessarily to be literally followed; the substance, effect or purport, is all that is required.
    The object of the certificate mentioned in the third section, is to serve as a record of what the woman did declare on her examination, and if it shows that all the material requisitions of the Act were complied with, then it answers the object for which it was intended.
    Does it appear on the face of the certificate in question, that Mrs. Higginbottom did all the law required her to do, to effect a valid transfer of her estate? If it does, what more was necessary? Does it appear on the face of the certificate, that Mrs. Higginbottom did go before a justice oí the quorum, and upon being privately and separately examined by the justice, did she declare, that she did, at least seven days before her examination, actually join her husband in executing the release, and that she did then, and at the time of her examination, freely, voluntarily, and without any manner of compulsion, dread or fear, of any person or persons whomsoever, renounce, release, and forever relinquish, all her estate, interest and inheritance, in the premises, to the grantee? If it appears on the face of the certificate, that she did all this, then it appears that she did all the act required her to do.
    But it is argued, the Act requires that an addition shall invariably be made to the certificate to the following effect, (not, be it observed, in the following words,) to wit, that the woman did declare that the release was positively and bona fide executed at least seven days before her examination, which addition does not appear to the certificate in question.
    To this we reply, this addition is made in effect to the certificate, though not in the same words, and to the effect is all that is required by the Act. The certificate states, that Mrs. Hig-ginbottom did declare, that she did, at least seven days before her examination, actually join her husband in executing the release,” (the very words of the law,) which is in effect, declaring that the release was positively and bona fula executed at least seven days before her examination. It cannot be argued that the word “actually” is not as comprehensive or as forcible as the words “positively” and “bona'fide,” because it is apparent on the face of the act, that the Legislature regarded these as equivalent terms. It is to be observed that the woman is not required to declare that she did “positively” and “bona fide” join her husband; and it is merely suggested, as we contend, that the Justice may certify that fact by using the words positively and bona fide merely as equivalent words; for it would be absurd or at least unreasonable to suppose the Legislature intended to require the .1 usticc to certify the fact in stronger terms than the woman had expressed it.
    But why were the words “positively” and ‘‘bona fule” introduced at all, and why introduced as an addition to the certificate?
    That question was asked by the Circuit Court, and not being answered, was a stumbling block. It. is therefore material that it should be answered now. It is to be borne in mind that an inferior class of magistrates arc by the act authorized to take these renunciations without the dedi'mus polcslalumox supervision of a judge. It was not, as it could not, be supposed that Justices of Quorum would generally be capable of drawing a certificate which would embody, substantially, the requisitions of the law; therefore a form of renunciation of dower is given in the second section. When the author of the act came to the third section, instead of giving the form of the renunciation of the right of inheritance at length, the Justice is authorized to adopt the form given in the second section as to dower; but as that form would be defective, in as much as it would not show that the woman had, at least seven days before the examination, actually joined her husband in executing the release; therefore, when that form is adopted, the addition, that she did positively and bona fide join in executing the release, is required to be invariably made. This is the true answer to the question. There is nothing in the act to preclude the Justice from certifying the examination in the identical words in which it is required to be taken.
    
      If, as it is respectfully submitted, the renunciation in question is certified substantially, according to the spirit and intention ofthe act; it is apparent that all the requisitions ofthe law were complied with, to hold the renunciation to be invalid for want of form, would be contrary to justice, reason and common sense, as well as to the well established principles of the common lav/.
    “He who recites a Statute (Co. Litt. 98 b.) is not bound to recite the very words thereof so Ions; as he misseth not ofthe substance, and necessary consequence thereof.”
    Acts made for public convenience (as the Act of 1795 certainly was.) ought to have a liberal construction. New River Company v. Graves, 2 Vernon, 431; qui hasret in litera, hasret in cor lice. He who clings to the letter, clings to the shell; he who sticks to the letter, sticks to the bark; he gets the shell without the kernel; the form without, the substance. In the interpretation of a Statute, we may not confine ourselves to the literal meaning alone, but should endeavor to get to the intention and spirit of its makers. The law respects the effect and substance of the matter, and not every nicety of form. Co. Litt. 283, b. Words ought to be governed by the intenj tion—they ought to be made subservient to the intent. Verba intentions, debent inserviri. 8 Coke 94. Again: words should be so understood, that the matter may avail rather than be of no utility—they are to be understood in such a manner, that the subject matter may be preserved rather than destroyed. The interpretation of writings is to be made favorably, in order that more may prevail than be lost. Index to Vincrs’ Abr. Title, Maxims, the words, ul res mag is valeat; Willes, 332; 14 East. 248; Ram on Legal Judgment, 15. Law Library; 1 Bl. Com., 61; 1 Kent’s Com., 461; 11 Coke, 73; 3 Coke, 27; Vincent v. SI ay maker, 12 East. 372; Dwarris on Statutes, 690; Law. Lib., Vo!. 9.
   Evans, J.

delivered the opinion of the Court.

The Plaintiff Mrs. Kottman, was once the undisputed owner of the land, and is entitled to recover, unless the defendant has acquired a good title under the conveyance from Higgen-bottom & Wife, to Mary Carr. This makes it necessary that we should decide on all the objections made by the plaintiff to the defendant’s title. It is sufficient, however,in relation to all of these, (except those which were decided in the Plaintiff’s favor on the circuit, and which are embraced in the defendant’s grounds of appeal) to say, that this Court concur with the Circuit Judge. As to the alienage of the husband, the general rule is that an alien may purchase, but he cannot hold real estate; yet his title is good until office found, and no one but the Lord of the escheat can oust him of his possession. He certainly had some estate in the land, and being the husband of the owner, he comes within the description of the person, with whom the wife may join in conveying away her real estate. Nor do we think there is any thing in the objections that this estate was not the inheritance of the wife, and therefore not embraced in the Act of 1795. The word inheritance does not necessarily mean an estate which has descended, but may as well mean any estate which may descend or be inherited; and in this sense it seems to me, the word is used in the Act of 1795, and includes every estate of the wife, which, on her death, by operation of law, would be cast on her heir at law. This disposes of all the points of the case, except the two which were decided on the circuit in favor of the plaintiffs, and are made the grounds of appeal by the defendant,.—which I proceed to consider.

When the case was presented on the circuit, it appeared to me that the act contemplated that the wife should not only bear testimony before the Judge or Justice, that the deed was voluntary, and executed seven days before her examination, but she was required also to say, that the transaction was bona fide, and not pretensive; that it was a real sale, and not a mere color to transfer her inheritance. Í have known more than one case, where the forms of the land have been obscured merely to invest the husband with the lee of his wife’s laud by a reconveyance from the pretended purchaser. But a more attentive examination has satisfied me that this is not the true meaning of the Legislature. The great object of the act, both in relation to dower and inheritance, was to protect the wife against any influence which might be exercised over her, and to leave her to the guidance of her own free will in the matter. The act, therefore, provides that seven days shall intervene between the execution oí the deed and her examination before the Judge or Justice. She shall “declare to him that she did at least seven days before such examination actually join her husband in executing such release,” &c. After this declaration has been made, the act provides that a “certificate, signed by the woman, and under the hand and seal of the Judge or Justice as aforesaid, shall then be immediately endorsed upon the said release, or a separate instrument of writing to the same effect, in the form and to the purport of the certificate prescribed in the second clause of this act; to which certificate an addition to the following effect shall invariably be made, to-wit: that the woman did declare that the release was positively and bona fide executed, at least seven days before such her examination.”

From the reading of this clause, it appears that two things are required to the perfection of the renunciation; first, the private examination by the Justice; and secondly, an endorsement of the result of the examination on the release or a separate piece of paper. The certificate is the written evidence of the facts as to which the woman has made a declaration, and, it would seem, need not contain any thing more than that the act of joining her husband was free and voluntary, and that seven days had elapsed since the execution. These seven days, I presume, are allowed, that she may have time to reflect on what she has done, to consult her friends, and if she repent, to withhold her assent to the filial consummation of the deed. When, therefore, the act directs that the Justice shall endorse a certificate in the form and to the effect of that, prescribed in the second clause, for the renunciation of dower, with the addition that it was positively and bona, fide executed at least seven days before such her examination, these latter words were necessary to be inserted, or some equivalent words, in order to make the certificate correspond with the facts, about which the Judge or Justice is required to examine the woman. It will be perceived, that the 3 edge or Justice is not required to examine her, as to the bona fieles of the release, and there is nothing in the act, which authorizes any conclusion, that the certificate should contain more than a clear statement of what she did declare on those points, on which the act requires her to be examined. I conclude, therefore, that the words positively and bona fide can'nave no ot her application, than as to the fact that the deed was executed at least seven days before her examination. Taken in this connexion, I think the case is free from difficulty. The act docs not require that the words positively and bona fide should be used, but that the certificate should be to the effect that the woman did declare, &c. The words used in this renunciation are that she did actually join her husband, &c. Is this word, actually, of the same or of equivalent meaning with the words,positively and, bona fide. These latter words are of such familiar use, that they are to be found in several of our English Dictionaries, and are defined to mean, really, Indy; actually, is defined by the words, in fact, in reality,—and, positively, by the words, certainly, without doubt. In Lcvoref’s Latin and English Dictionary, actually, is explained by the words, rere, re-ipsa, revera, and these arc translated into English by the words, true, real, certain, not false, or counterfeit, in truth, in reality, in fact, indeed. Positively, is defined by the Latin words, eerie,prefecto,—which are translated into English, by the words, certainly, assuredly, truly, indeed, doubtless, really. From this comparison, I think it clear, that these words, although they may not be synonimes, when applied to different subjects, yet when applied to the same subject, they are so nearly of the same meaning, that we may fairly infer that they were used in the same sense by the Legislature in the Act of 1795. Thus in common parlance, we may say in reference to the time, when a thing was done, that it was, bona fide, done, at such a time, or actually, or positively, done, meaning thereby that it was, really, certainly, in truth, in reality, and, without doubt, done at the time mentioned. I am, therefore, of opinion, that the word, actually, used in the certificate in this case, is of the same import, and to the same effect as the words, positively, and, bona fide, used in the act: and in this construction the whole Court concur.

But the most difficult part of the case remains to be considered, and on that there is not the same unanimity of opinion. This question relates to the sufficiency of the recording of the deed from Higginbottom and wife to Mary Carr. The deed is dated the 12th of February, 1835; the renunciation was on the 24th of the same month, but it was not recorded until 12th of October, 183G, more than one year and seven months after-wards, but within the life time of both husband and wife. I should not consider this a question of much difficulty, if we were not embarrassed by the case of Hillegas v. Hartley, 1 Hill C. R., 106. There would be no difficulty in distinguishing that case from this, so far as the facts are concerned; but the principle of that case, as would seem from the reasons given, would cover this as well as all other cases, where the renunciation was not recorded within six months from its date. This construction of the Act, a majority of t his Court are of opinion was error; and I will now proceed to assign the reasons for that opinion.

The words of the Act of 1795, are, “and such renunciation shall not be considered as being complete or legal, until the same shall be recorded in the office of mesne conveyances, or office of the clerk of the County Court.” There arc two constructions which have been put on these words. The venerable Chancellor DcSaussure, who decided the case, Hillegas v. Hartley, on the circuit, held, that as between the parties and those claiming under them, the deed might be recorded at any time. In the Court of Appeals (two Judges only being present) this decree was reversed; and if the reasoning of the Judge who pronounced the opinion was adopted by the other Judge, it was decided by the Court, chat without reference to the death of the wife, the renunciation was void, because it was not recorded within six months from its date. The principle on which this case proceeds, is, that recording, like delivery, and the other essentials of a deed, is necessary to its perfection, and without it, the deed is void as between the parties, as well as against all other persons. It is as much a nullity as if it had never been delivered. The general rule in relation to the registration of deeds, is, that they are good without recording, between the parties, and against all other persons having notice of them. Is there any thing in the words of the Act of 1795, which requires a different construction? All other deeds arc perfected when signed, sealed and delivered. When the grantor has done all, that by law he is required to do, it, would seem to me, the deed» as to him, is perfected. Recording is not an appropriate part of execution. It is to be done by the grantee, and not by the grantor. Such a construction is at variance with that, which is given to all other Acts of the Legislature on the subject of recording. By the 45th section of the Act of 1785, (P. L., 381) it is enacted, “that no conveyance of lands, tenements, or hereditaments within this State, shall pass, alter or change from one person to another, any estate of inheritance, fee simple, or any estate for life or lives; nor shall any greater or higher estate be made or take effect in any person or persons, or any use thereof be made by bargain and sale, lease and release, or other instrument, unless the same be made in writing, signed, sealed, and recorded in the clerk’s office of the county,” &c. The Act goes on to provide, that without recording, “such deed or other conveyance shall be legal and valid between the parties themselves and their heirs, but shall be void and incapable of barring the rights of persons, claiming as creditors or subsequent purchasers. Here the words of the Act would seem to imply, that (except as between the parties themselves and their heirs) no estate shall pass from one person to another, unless the conveyance was signed, sealed and recorded. Here recording is put in juxta position with signing and sealing, and might be supposed to have been intended as equally essentia] to the validity of the deed, and without which, it would be incapable of barring the rights of creditors or subsequent purchasers; and yet it has been held, in Tart v. Crawford, and numerous other cases, that without recording, the deed was good, and did alter and pass the estate, as to subsequent purchasers having explicit notice. This was on the clear principle, that the object of recording is notice, and as to one having notice, the end of recording is attained. By the Act of 1823, (6 Stat, 213,) it is declared, that no marriage settlement shall be valid, until recorded in the office of the Secretary of State, and in the office of the Register of mesnes conveyances, where the parties reside, provided, that the parties shall have throe months to record the same, and if not recorded within three months, shall be null and void. The words, “shall not be valid until recorded,” is as strong an evidence of legislative will, that without recording, a marriage settlement is null and void as to all persons, as the words used in the Act of 1795—“the renunciation shall not he considered, as complete and- legal until the same shall he recorded.” “Shall not be valid,” and “shall not be complete and legal,” seem to be of the same import, and to convey the same idea. If there be a difference, I should say the former words, connected with the subsequent words of the Act, mill and void, show more strongly a legislative intention, that without recording, a marriage settlement should be utterly null and void as to all persons.

On the construction of the Act of 1823, it would seem, from what is said in Fowke v. Woodward, (1 Spear E. R., 233,) that in the Court of Equity, where cases of that description usually arise, the opinion prevailed for some time, that the words of the Act would require the same construction, as had been given to the Act of 1795, in Hillegas v. Hartley; that is, that the recording within the prescribed time was essential to the perfection of the deed. But when the question arose directly, in the case of Fawke v. Woodward, the Appeal Court of Equity, by the unanimous opinion of the Chancellors, decided, that an unrecordcdjmarriage settlement operated, as to third persons, from the time of recording, and if not recorded within time was void; but as to the parties themselves, it operated ah ini-tio, because they had notice from the beginning. Thus, construing the Act of 1823, as a registry Act, and carrying out the principle upon which Tart v. Crawford, and Givens v. Branford, had been decided, it is of great importance, that all Acts, on the same subject, should receive a similar construction; and I do not sco how this can be, without giving to the Act of 1795 the same effect, as is given to all the other Acts, which require registration of deeds.

It was said in the argument, that if nothing had been said about recording, in the Act of 1795, still the deed and renunciation would have to. be recorded, under the general provision of the Act of 1785, and that, therefore, something more than mere notice was intended. The second clause of the same Act requires, that renunciations of dower should be recorded also, and I have never heard it even supposed that such a renunciation would be void as to the wife without recording. The case of Gough a. Walker, arose on the construction of a different Act, and under a very different rule, from that which has prevailed since 1795. The decision in the case of Gough v. Walker, 1 N. & M’C., 469, was on the Act of 1731, which was said to be analogous to the levying of a fine. That was a judicial proceeding, and although the note of the fine and the foot of the fine might be made at any time, within a year and a day, and afterwards on notice, yet these are said, in Hillegas v. Hartley, to be like a final judgment, without which the record would be incomplete; and if the recording in the Court of Common Pleas be a substitute for the note and foot of the fine, the renunciation of dower under the Act of 1731 was incomplete without recording; and in this view the case of Gough v. Walker, was correctly decided. In that case, the release of dower was not recorded for fifty years, and not until the action was brought; and so far as appears from the reported case, the recording was in the Register’s office, and not in the Common Pleas. The proceeding, under the Act of 1795, bears no resemblance to a judicial proceeding. The renunciation may be before a Judge, but it may as well be before a Justice. No acknowledgement in Court, or record of it in the Court, is required, or any thing which bears the least affinity to a judicial proceeding. I agree fully with what is said in Hillegas v. Hartley, that the renunciation of the wife under the Act of 1795 is a mode of conveyance, and so regarded, I do not perceive the slightest reason for supposing it was intended, the recording should bo for any other purpose, than that fer which other deeds are required to be recorded.

The Act of 1795, in requiring the renunciations to be rcorded, meant to put them on the same footing in every particular as other deeds, or it meant that the deed should be inchoate until recorded. It either intended to subject them to all the provisions of the Act of 1785, or to make recording like delivery essential to the completion of the deed. If we adopt this latter construction, then it would seem to me that the recording may be at any timé within the lifetime of the wife. Thus a deed may be signed and scaled at one time, it may be delivered at another, and it may be recorded at another; but the recording, like the delivery, may be at any time whilst the wife is living. This construction would decide this case for the defendant, in consistency with the case of Hillegas v. Hartley, but not in consistency with the reasons upon which that case is put: but a majority of this Court think that would be too narrow a construction, and would not effect what we think of great importance,—to restore to our registry laws a uniformity of construction, which will make them consistent with each other. The effect of this is a reversal of the case of Hillegas v. Hartley. I feel the full force of all that has been said on the rule of “stare decisis,” but the case of Hillegas v. Hartley has not settled any great rule of property under which rights have been acquired, which the reversal would defeat. Its only effect will be in a few instances to restore rights honestly, in most cases, acquired, but which would have been defeated by accident or by ignorance that the law required such deeds to be recorded within six months. It defeats no right; it only avoids a forfeiture.

The motion for anew trial is granted.

Johnston, Ch., Caldwell, Ch., Wardlaw, J., Frost, J., and Withers, J., concurred.

Dunkin, C1l,

dissenting.—I concur in this judgment, because I think the certificate was sufficiently explicit, and that the deed, having been recorded in the lifetime both of the husband and wife, was a valid renunciation according to the terms of the statute. But I am not prepared to say that recording was unnecessary to its validity, even between the parties.

This is not the deed of a party sui juris, who requires no protection from the law, and who, of course, requires no record to inform him of his own deed. Nor is it even the act of a minor, which may, or may not, be affirmed when he arrives at maturity. The deed of a jeme covert is a mere nullity—she has no legal existence. In Reid v. Lamar, (Columbia M. S., December, 1846,) which was a case of marriage settlement, we held that she had no authority, but as derived from the deed, that she was the creature of the deed. Her act had no validity or legality, but as declared legal and valid by the instrument authorizing her to contract. A married woman having then no legal existence, this enabling statute was passed, which imparted validity to her act, renouncing her inheritance on certain conditions. “Such renunciation,” declares the act, “shall not be considered as being complete, or legal, until the same shall be recorded in the office of Mesne Conveyance, or office of the Clerk of the Court,” &c. By the principles of the common law, her deed was a nullity. By the provisions of the act, it shall not be considered legal, until the same shall be recorded. Until that done, it has the same consideration, and no other or higher considerations, than it would have received before the act was passed.

It seems difficult to advert, to the then existing state of the law, and yet adopt the conclusion that this proviso was merely a part of the registry act. By the Act of 1785, passed ten years previously to this law, it was declared that no conveyance of lands should be valid to pass any estate of inheritance, &c.s which was not recorded within six months of the execution thereof, “ exceptas to the parties themselves, and, their heirs.” It cannot he doubted that the deed of the husband and wife, as well as the renunciation of inheritance of the latter, fell strictly within the provisions of the Act of 1785, and, in order to bar the rights of creditors and subsequent purchasers, should be recorded within six months, although it would be valid, by the terms of the act, as between the parties themselves and their heirs. According to the construction now given, the formal proviso in the Act of 1795, which declares that “such renunciation shall not be considered as being complete or legal until the same shall be recorded in the office of Mesne Conveyance,” was simply superfluous, or nugatory. I am unwilling to suppose it either the one, or the other. In the language of Chancellor Harper, 1 Hill, C. R., 106—“the words are too plain to admit of question. Whatever reasons may have governed the Legislature in making the enactment, I cannot imagine that the words have any other meaning, than that the renunciation shall have no operation, or effect whatever, even between the parties. The security and protection of the woman must have been, in some way, the object of the provision.” Concurring fully in these observations, I would only illustrate them, by supposing that a marriage settlement, which authorized a wife to act, had nevertheless declared that her deed should “not be complete or legal, until the same was shewn, or notice thereof given, to her father, if alive, or to her trustee; could it be maintained that a deed of the feme covert, divesting herself of her estate, would be complete and legal, though it had never been exhibited, or made known, to her father, or trustee? Nothing more, it is true, was to be done by the wife. It was in the exclusive power of the alienee to make known to the lather or trustee, that he had procured a renunciation of the estate, and, thereby, render his title complete and legal, is it, therefore, complete and legal, although he had always kept his deed in his escritoire, and never communicated it to the friends of the wife? The inquiry need not be made, what they could have done, even if they had known of the wife’s alienation; although it might not be difficult to conceive a very satisfactory reply to the inquiry. But the party must stand, not alone on the deed of alienation, for that, of itself, is a nullity, but on the authority to execute the deed, and is bound by its terms.

Thinking that the purchaser, in this case, had complied with the provisions of the Act of 1795, and that the feme covert was thereby effectually divested of her estate, I agree in the conclusion that the defendant below was entitled to a non-suit, or that a new trial shouldbe granted, asmovcdintlieLawCourtof Appeals.

Per Richardson, J.

dissenting.—By the Act of’85, all releases of lands must be recorded in six months. But the want of recording does not injure the title, i. e., as between the donor and donee. The Act of ’95, makes no alteration in such recording, but expressly requires renunciations of dower, &c., to be recorded, of course in six months. But in the 3d clause, it is enacted, that renunciations of the wife’s inheritance shall “not be complete or legal until recorded.” Under this Ihird clause it was decided, by the late Court of Appeals, that the recording of such renunciations, by a feme covert, must be in virtue of the Act of ’85,—of course in six months. And unless so recorded in six months, then in virtue of the Act of ’95, it is incomplete and illegal, in its original execution, by the plain letter of that act.

Shall that decision be reversed, is now the question'?

I dissent from the decision of the Court, because it sets aside the judgment of the late Court of Appeals, in the case of Hillegas v. Hartley, Hill R. 106, upon argument inadequate to justify such a reversal. That judgment is direct and conclusive of the question of the present case, and of course, the opposite decision in this case directly and conclusively reverses the judgment in the former, and introduces an entire new exposition, not only in the meaning of the terms of the Act of ’95, but in its spirit and general object, reconverts an Act, for the condition precedent to the wife’s binding renunciation, into a mere registration, as if recording had not already belonged to all conveyances of land. My objections, therefore are, twofold. First, as to the letter of the Act. After the terms of an Act have been settled for fourteen years, it is inconvenient and inconsistent, if not dangerous, to give a nc tv version. On this head I would observe, that although the enactment—‘"that the renunciation shall not be complete or legal until recorded,” <&c., might perhaps admit of different interpretations, yet they will admit of this meaning,—that unless recorded as other Mesne Conveyances, i. e., within six months, the renunciation of a married woman is incomplete and illegal. This is what had been decided. The object is her protection, and it would be a further protection to her inheritance, that it should be so recorded, or be void—i. e., not binding even between the parties; whereas other conveyances bind the immediate parties, though not recorded in clue time—or never put on record. This difference would seem to be the further protection intended for the wife’s inheritance by the Act. Secondly. In expounding such an Act, it should be borne in mind, that all such Acts, by affording the means of a married woman renouncing her inheritance, alters the common law, and practically ministers to her deprivation, by giving her any such power, while yet under the influence of her husband. A wife is not sui juris. Such Acts, therefore, by removing her legal disabilities, which constitutes, says Blackstone, “her protection,’’ really infract her rights; and therefore the Act, when equivocal, should be made to enure to her best possible protection. The Act is far from being a mere remedial Act, to be expounded liberally, to advance and facilitate the sale of her inheritance. Is it an Act in derogation of the common law protection of the voile’s landed estate, which holds her incapable, for her own security, of releasing it during coverture? Thence it follows that the Act of 1795 is to be expounded strictly, when opposed to the wife’s interest, and liberally, if necessary, to preserve her lands—i. e., every condition must be fulfilled, or she retains her inheritance. This object, and such characteristic of the Act, I take to be the key to the construction made by the late Court of Appeals, now to be set aside. That decision secs, in the terms of the Act, its true spirit; and whatever might have been its construction, I perceive no sufficient reason for reversing that of the Court of Appeals, so made, upon a just and comprehensivo conception of the Act, in connexion with the principles of the common law. Her protection is the element of the past construction. Shall it now bo reversed? Here, let it be remarked, that this makes the third instance in which the decisions of the hate Court of Appeals have been reversed; State v. M’Bryde, Fash v. Ross, and the present case. I deem it, therefore, a fit occasion, and proper case, to express my opinion of the importance of the maxim, stare decisis. The reversal of a former decision introduces this striking inconsistency—that the party, or side, who gained the case before, loses it upon the reversal.

In Hillegas v. Hartley, the wife regained her inheritance from the omission to record in six months; in the present case she loses it by the reversal oí'the former case. This inconsistency shocks the minds of men, and the Court is lessened in their respect and confidence, and loses the character of its high conservative usefulness. It is in its unlcgislativc uniformity that the judiciary has its force oí character, its strength and its usefulness. It is vested with great discretion and power, but is essentially unlcgislativc. And it is better to have ordinary laws stable, when once understood, than better laws, subject to unlooked-for changes. “Misera est servitas, ubi jus est vagum aut incondilurn,” is an historical fact; and the shield against the introduction of this great evil is placed, by the constitution, in the hands of the judiciary. Upon such practical justice, sound sense, and judicial reliance, the rule of Judges adhering to established expositions of law, is bottomed. Firmness in such a course, is but little less essential, and very analogous to the rule, that a case at law being once fairly tried, the judgment rendered closes up every question, submitted in the issue made between the .same parties. For when such judgment has been sanctioned by the Appeal Court, it gives solemn assurance that all future litigants shall receive the same judgment on presenting the like case. I grant that such reversals come within judicial authority, but they should depend upon a comparison with former adjudications, in connexion with considerations of justice, prudence, and judicial consistency, and ought not to be sanctioned, but in cases of a manifest former error. In a word, I am not convinced of either the force of argument, or of the necessity of this reversal of the former decision. That decision, and the present reversal, stand in these respects, to say the least, too well balanced for the judicial introduction of such a change; which I consider not merely alterative of terms, but introductivo of a different end and principle for the Act of'95. But further, the fact that, the present decision lays down no intelligible rule of its own, while it destroys the former rule, that the wife’s renunciation must be recorded in six months. This leaves the Act of ’95 in a state of vacillation with every new case. In M’Bryde’s case, the constitutional jurisdiction of the Court was laid down; and in Fash v. Ross, there is at least a rule for other cases, substituted for the former; but in the present reversal, I can perceive no rule, unless it bo meant that the bare renunciation transfers the wife’s inheritance—i. e., it stands like other conveyances— valid as between the original parties, recorded or not. This would be intelligible, I grant, but then, away goes the provision in her favor. The renunciation “shall not be legal or complete until recorded,” which I consider important protection, and intended to give early notice to her iriends, in case the wife should have been secretly coerced, and require some interposition of a Court. The early recording, and consequent notoriety, is, in fact, a great safe-guard for the wife, against the grasping of her husband; and also keeps up something like the protection she before had, in the public judicial proceeding by fine and recovery—for which the Acts of 1731, and ’95, are the substitutes.

I am, therefore, for adhering to the former decision, because I can see nothing better in the present, and because the reversa^ in its effect, appears, to my understanding, to interpolate a new principle, that trenches manifestly upon the common law protection of femes coverts; and this would amount to a legislative enactment, rather than a judicial interpretation of the Act of 1795.

O’Neall J. was absent, holding the Circuit Court in Charleston.  