
    [Philadelphia,
    March, 31, 1823.]
    JOURDAN against JOURDAN.
    IN ERROR.
    The deed of a feme covert is void, if it do not appear from the certificate of her acknowledgment, that she was examined separately and apart from her husband. Stating that she voluntarily consented thereto,- will not cure the defect. Nor is the parol evidence of the magistrate admissible, to show a separate examination. In Pennsylvania, a collateral warranty decends on the eldest son.
    Where the deed executed by a married woman is void, parol evidence is admissible to show, that after her husband’s death she delivered and ratified it. *
    Circumstances may be proved, from which the jury may infer such delivery!
    Evidence of circumstances to show a family arrangement at the execution of deeds, is admissible : and a deed otherwise invalid, would be good evidence if it formed a component part'of such arrangement.
    Error to the Court of Common Pleas of Chester eounty, in an ejectment brought by John Jourdan, the plaintiff below, against Hugh Jourdan, the defendant below, and plaintiff in error, tried before Hallowell, President, who, with the associate Justices of Chester county, held a special court for the trial of causes in which DARLINGTON,' President, had been of counsel. In the court below, a verdict and judgment were had for the plaintiff, and several exceptions on points of evidence, were taken by the defendant,
    The bill of exceptions stated, that the plaintiff gave in evidence, deeds and other testimony showing, that Hugh Stewart was seised in fee of the premises claimed in the declaration, and died intestate, leaving one daughter, Sarah, his only child,, who intermarried with John Jourdan, the father of the plaintiff and defendant: and that she had in all five children, viz. Hugh, the defendant, the eldest son, John, the plaintiff, Stewart, Jinn, wife of James Steen, and Lilly, wife of Joseph Filson. John, the' father, died intestate, leaving Sarah, his wife surviving, and Sarah died after the year 1734, intestate, leaving the above named child surviving her. The defendant gave in evidence the following deeds, viz: one dated September 29th, 1807, from John Jourdan, the plaintiff, to Sarah, his mother, Hugh, James Steen, and Jinn his wife, Joseph Filson, and Lilly his wife, arid Stewart Jour-dan. One other, of the same date, from Sarah, Hugh' and his •wife, Joseph Filson and Lilly his wife, James Steen and Jinn his wife to John, the plaintiff. One other, dated the 13th April, 1810, from Sarah, Hugh, and Joseph Filson, and Lilly his wife, to James Steen. •
    And the defendant then offered in evidence:
    1. The testimony of Robert Miller, Esq. a justice of the peace, before whom the said deeds of the 29th September, 1807, were executed, to prove, that at the time of executing the said deeds, a certain other deed from John Jourdan, the father, and Sarah his wife, to the defendant Hugh, dated the 31st December, 1802, conveying the premises in question, was read in the presence of John, the plaintiff. This testimony was objected to by the plaintiff, and overruled by the court.
    2. The above mentioned deed, dated the 31st December, 1802, from John Jourdan, father of the plaintiff and defendant, and Sarah his wife, to the defendant, for the land in dispute, which was duly executed by them, and acknowledged before James M. Gibbons, a justice of the peace of Chester county: but though the certificate of the magistrate stated, that the wife voluntarily consented, it did not state that she was examined separate and apart from her husband. The deed was, on that account, objected to by the plaintiff, and overruled by the court.
    _ 3. The defendant offered to prove by James M. Gibbons, Esq. that the said Sarah was by him examined separately and apart from her husband, and on the examination, the contents of the deed' were by him made known to her, and she declared that she voluntárily, and without coercion consented thereto, and that the insertion of these facts was omittqd by accident and mistake. But this testimony being objected to by the plaintiff, the court rejected it.
    
      4. The defendant further offered the said deed of December 31, 1802, as the deed of John Jourdan, the father, and containing a warranty against his- heirs claiming either under him or their mother Sarah, accompanied with an offer to prove, that lands descended in fee simple from the said John, the father, to the plaintiff, more than equal in value to the premises claimed in this ejectment. The plaintiff also objected to this evidence, and the court overruled it.
    5. The defendant offered to prove, that Sarah, the mother, after the death of John, the father, namely,'in Jlpril, 1810, at the time when she joined with Hugh, the defendant, and Joseph Fisión, and Lilly his wife, in the execution of the release to James Steen, of the same date, delivered and ratified the deed of December 31st, 1802, from her husband and herself to the defendant: that the said deed was distinctly read, over to her, and she expressed herself satisfied with it, and gave it her consent, and it was again delivered to the defendant, aid after this she permitted the defendant to erect á barn and other improvements on the land conveyed by it, at his own expense, and that she called it his land, and that after her death he was to have the land, according to the provisions of the deed. This evidence was also objected to, and overruled by the court.
    6. The defendant further offered parol evidence, and the following documents and papers, to prove a family arrangement by and among the children of the said John and Sarah, under whi'ch the defendant was to have the premises in dispute, as his share and pur-part of his father and mother’s estate. 1. A letter of attorney, dated 1st December, 1804, from John, the father, to the defendant and James Steen, who had'married one of the daughters. 2. The record of an action'in the court of.Common Pleas of Qhester county, in which the plaintiff in this ejectment was plaintiff, and the defendant and James Steen were defendants, including the papers furnished to the defendants therein by the plaintiff, in compliance with the oyer craved in the said' suit. 3. An article of agreement between the defendant and James Steen, attorneys in fact of John the father, dated May 12th, 1807. This evidence was objected to by the plaintiff, and overruled by the court.
    
      Condy, for the plaintiff in error,
    considered the following questions;
    1. Does collateral warranty with assets bar?
    2. What is the effect of the acknowledgment by Sarah Jour-dan?
    
    3. If it was insufficient on its face, could the defect be supplied by the parol evidence offered?
    4. Was not evidence admissible, that the feme ratified the deed, after' she ceased to be covert?
    5. Whether the evidence was admissible, to prove a family arrangement," under which each child was to have a portion?
    
      1. This warranty was a collateral warranty, because the land being owned by the mother, it was impossible that the defendant, the grantee, could inherit it from the father who.made the warranty. At common law, such warranty barred the heir on whom it descended, without any assets, except where the warranty commenced by disseisin. Lit. see. 697. 7 Bac Ab. 235. Tit. Warranty> I. A warranty by a tenant by the curtesy was a bar to the heir without assets. Lit. Sec. 724, 725. But the stat. of Gloucester, 6 £. 1 C. 3, has made considerable alteration in the doctrine, and by that statute, a warranty by a tenant by the curtesy is •no bar to the heir, without assets in fee simple: Co. Lit. 379,-380. But if a husband convey the estate of his wife with warranty, and leave assets, this bars the heir notwithstanding the statute of Gloucester. Littleton, Sec. 728, says, that “by force of the same statute, if the husband of the wife alien the heritage or. marriage of his wife in fee, with warranty, &c. by his deed in the country, it is clear law, that this warranty shall not bar bis heir, unless he hath assets by descent;” and Lord Coke 366, a. “if the husband be seised of lands in right of his wife, and maketh a feoffment in fee with warranty, the wife dieth and the husband dieth, this shall not bind the heir of the wife without assets. ” By the statute of 4 and 5 Ann. c. 16, all collateral warranties to be made after a certain date, of any lands, tenements, 'Or hereditaments, by any ancestor who has no estate of inheritance in possession in the same, are void against his heir. But though the statue ctf Gloucester extended to Pennsylvania, Report of the Judges of the Supreme Court, 3 Binn. 602, yet the statute of Ann does not: and.it has been decided by this court, that a collateral warranty by tenant by the cur-tesy with assets is a bar to the heir. Eshelman v. Hoke, 4 Dali. 168. 4 Ycates, 509, S. C. The principle on which a collateral warranty bars, is the same as that adopted by equity, that one shall not claim under a will, and at the same time defeat it in part.
    2. Though the acknowledgment does not pursue the words of the act of assembly, in stating that the wife was separately examined, yet sufficient appears to show that such was the case. The acknowledgment states, that she voluntarily consented, which implies that the. husband was not present: for if he were present, she could have no will. It has been held, that no particular form of words is necessary to make the acknowledgment good: the words of the act need not be' used if its directions are substantially complied with. MiIntire,s lessee v. Ward, 5 Binn. 301. This inference is strengthened by the presumption of the law, that the magistrate, in his official acts, fulfilled his duty, where nothing appears to the contrary. Shaller v. Brand, 6 Binn. 447,
    3. Evidence ought to have been admitted to show, that the omission of the magistrate was by accident, or mistake, and that the wife was separately examined in conformity to the act. The act of assembly does not declare at what time the' magistrate shall malre bis certificate: and if he might make a secorid certificate according to the truth, he might state the same thing on oath. In Pennsyl- ■ vania, it is a settled rule, that parol evidence may be given of what passes in the presence of the parties immediately before or at thé execution of a deed, to show a mistake, and there is no reason why the same principle may not be applied to an acknowledgement.
    4. The court below was manifestly wrong in rejecting the cir-eumstarices offered to show a subsequent confirmation by Sarah Jourdan, after the death of her husband. The evidence offered was strong to this point, and would probably have satisfied the jury of her confirmation and redelivery of the deed. In Goodright v. Strahan, Cowp. 201, it was decided, that redelivery by the feme, after the death of the husband, of a deed delivered by her whilst covert, is a sufficient confirmation of such deed, so as to bind her, without its being re-executed or re-attested: and that circumstances alone may be equivalent to such redelivery, though the deed be a joint deed by baron and feme affecting the wife’s land, and no fine levied.
    6. As the evidence of the family arrangement. Sarah Jour-dan, was the daughter of Hugh Stewart, and it was his desire that his grandson Hugh', the eldest son of his daughter Sarah, should have the land which his daughter received from him. In the power of .attorney of the 1st December, 1804, John Jourdan, the father to Hugh, it is said, that Hugh was not entitled to any portion of his father’s estate, because, as we contend, it bad been agreed among the family that Hugh should have his mother’s estate, and no part of his father’s estate. These and other circumstances ought to have been permitted to go to the jury, to show an equitable title in us, which was good against the plaintiff, and all who were parties to the agreement.
    
      Tilghman, contra,
    contended:
    1. That in the present case, the collateral warranty was no bar, because a warranty descends on the heir at common law. 7 Bac. ab. 229. 1 Inst. 12: and in the present case Hugh, the defendant, being the eldest son, was the heir at common law, and on him it descended. Thus the text of Littleton is express, that where lands .are descendible by the custom of borough English, to the youngest son, or are gavelkind, and go to all'the brothers, the warranty by the ancestors, descends only to the eldest brother, who is the heir at common law, and the others shall not be barred though they are heirs to his lands and tenements. Lit. Sec. 735, 736. In Pennsylvania, though the lands 6f the intestate descend to the children equally, yet, the warranty descends only to the heir at common law, namely, the eldest son.
    2. On the second point the court stopped the counsel from arguing.
    
      3/ The requisites of the act of assembly must appear in the certificate itself, and cannot be supplied by parol proof. In Walton’s 
      
      lessee v. Bailey, 1 Binn. 470, an attempt was made to supply the defect of the certificate by parol proof, but the court determined, that it ought not to be received. The principle of this case was recognized in Commonwealth v. Jones, 3 Serg. & Rawle, 158, in which it was held, that parol proof is not admissible to show the assent of the parties to the assignment of an indenture of appren- ' ticeship, but it must officially appear in the certificate of the magistrate, - • '
    4. No offer was made to prove redelivery of the deed by the widow, except from circumstances: and whether these should go to the jury, was for the court to decide, on a view of them all.
    5. There was nothing in any of the papers which went to show ■ a family arrangement.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an ejectmént for a tract of land in Chester County, brought by John Jourdan, the defendant in error, who was plaintiff below, against Hugh Jourdan. On the trial in the Court of Common Pleas, the defendant offered sundry matters, both written and parol, in evidence, which were rejected by the court, whereupon the counsel for the defendant excepted to their opinion;

1st. The first evidence rejected, was a deed from John Jour-dan, Senr., and Sarah his wife, to their son Hugh Jourdan, the defendant, for the land in dispute; which was the estate of the said Sarah. This deed was acknowledged by both the grantors, before James M. Gibbons, a Justice of the Peace of Chester County, as appeared by his certificate; but it did not appear that the wife was examined separate, and apart from her husband, and that was the reason of its rejection.

As to the acknowledgment of deeds by married women, the principle now firmly established is, that the requisites of the act of assembly, by which the mode of conveyance by femes covert is prescribed, must appear to have been substantially complied with, on the face of the certificate, made by the magistrate by whom the acknowledgment was taken. Watson’s Lee v. Bailey, is the leading case, 1 Bin. 470; since which have beenthé cases of M'Intire v. Ward, 5 Bin. 296, Shaller v. Brand, 6 Bin. 435, Evans v. The Commonwealth, 4 S. & R. 373, Watson v. Moreen, 6 S. & R. 49, and Hopkins v. Birchatt, 6 S. & R, 143. Arid in conformity with this principle, the counsel for the defendant has contended, that it substantially appears, the wife was examined separate and apart from her husband, becáuse it is' certified by the magistrate, that she voluntarily consented, which she could not do, if her husband were present; because, then, it would be presumed, that she was under coercion. This argument is too refined. A separate examination is essential, and ought sufficiently to appear. In the present instance, the magistrate certifies, that the feme vo- luniarily consented. .We are to understand by that, that being asked by the magistrate, whether she made her acknowledgment of her own free will, without any coercion or compulsion of her husband, she answered in the affirmative. Nothing more can be fairly implied. Whether this examination was in the presence of the husband, or not, does not appear, nor is there any ground for inference on that point. It might in truth be, that she freely consented, though her husband was present. But that will not satisfy the law. Examine the worpan how you will, it is impossible to ascertain with certainty, whether she gives her free consent; her word must be taken for that. She may in fact, be under terror, though she be examined in the absence of her husband. But there is a better chance for her speaking her real sentiments, in his absence than in his presence. And it is difficult for the law to protect her further, than by giving her an opportunity of disclosing her mind to the magistrate, out of the presence of her husband.The act, therefore, directs this examination of the wife to be separate and apart from the husband; and in this the magistrate has no discretion. He has no right to-say, that the consent was voluntary, unless the husband and wife were separate, and that they were separate must appear on the face of the certificate, and not otherwise. I am, therefore, of opinion, that thexertificate of acknowledgment 'was defective. But it was attempted to supply this defect, by the parol, evidence of the magistrate, before whom the acknowledgment was made. This evidence was also rejected, and in my opinion, with great propriety. That point was expressly decided in the case of Watson’s Lessee v. Bailey, 1 Bin. 470. In that case, the certificate of the magistrate was defective, and in order to supply the defect, parol evidence was offered, and refused by the court. There would be no certainty in titles, if this kind of evidence were permitted. The deed in question, was acknowledged 31st December, 1802; and after the lapse of twenty years, the magistrate is called upon to declare what took place at the time of the acknowledgment. If it were a new point, I should say, that the evidence ought not to be admitted. The law directs the magistrate to make his certificate in writing, and he has made it. To that the world is to look, and to nothing else. But the point is not new. The decision in Watson & Bailey, has been recognized in other cases. There can be no hesitation, therefore, in saying, that in the present instance, the parol evidence was inadmissible. But there was another point of view under which the same deed was again offered as evidence. It contains a warranty, by John Jourdan the father, against himself and his own, and his wife’s heirs, and the defendant offered to' prove, that other lands descended in fee simple from the said John Jourdan the father, to his son John, the plaintiff, more than equal in value, to the premises claimed in this suit. This was a collateral warranty, because the land being the estate of the wife of the warrantor, it was impossible that his child could in-bent it from him. A collateral wari’anty, with assets, is a bar to the heir of the warrantor — -but there is a decisive objection to a bar in this case. The warranty of John Jourdan the father, did not descend upon his son John, the plaintiff, but upon Hugh, the defendant, who was the eldest son and heir at common law. Our act of assembly directing the descent of the real estates of intestates, makes no mention of warranties, and in no manner directs the mode of their descent. That act operates only on such estates as the intestate' had power to dispose of. It has no effect on estates tail, nor on estates held in trust by the intestate. Such has been the uniform and settled construction. The descent of warranties then, is left to the common law, and the authorities are express, that a warranty can descend on no other than the heir at common law; although the land of the warrantor may descend to all the sons equally, as is the ease with lands held in Gavelkindor to the youngest son only, where the lands are held in Borough English. In 1 Inst. 12, it is said by Lord Coke, that a warranty shall not go with tenements to which it is annexed, to any special heir; but always to the heir at common law.” And in Littleton Sect. 735, the case is put, of tenant in tail, seized of tenements in Borough English, who discontinues the tail with warranty, and has issue, two sons, and dies seised of other tenements, in the same Borough, in fee simple, to the value, or more, of the lands entailed; yet the younger son shall not be bound by the warranty of his father, although assets descended to him in.fee simple.from his father, according to the custom, because the warranty des’cended on the elder brother, and npt upon the younger. Then Littleton adds, “and in the same manner it is of collateral warranty made of such tenements; where the warranty descends upon the eldest son, it shall not bar the youngest son.” In Litt. Sect. 736, it is said, that in ease of Gavelkind lands, which are dividable between all the sons, the warranty of the father descends upon the eldest son only. As to the case of Eshelman v. Hoke, decided by this court, and reported in 2 Yeates, 509, it is to be remarked, that the only point to which the attention of the court was drawn, was whether the statute of 4 & 5 Ann. Ch. 16, by which all collateral warranties are void, unless made by one who is seised qí an estate of inheritance in possession, had been extended to Pennsylvania. The court held, that it had not been extended, and therefore, a collateral warranty with assets was a bar, though the warranty was riot made by a person who was seised of an estate of inheritance. Had the question been presented to the court, whether a warranty can descend on any other than the heir at the common law-, I presume there can be no doubt, that it would have been answered in the negative.

As it is now settled, that the statute of Jinn, does not extend to this state, possibly the legislature may think it prudent to make some provision, whereby all injustice and inconvenience, from the effect of warranties, whether lineal or collateral, may be prevented. The subject certainly deserves consideration. For although the warrantee and his heirs and assigns, may have remedy by action on the covenant of warranty, in cases where the land is recovered from him by one of the children of the warrantor, yet the remedy is uncertain (by way of damages,) and may bé inadequate. The law of warranty has fallen very much into disuse, and consequently the knowledge of it is difficult. The remedy by voucher is unknown, (except in common recoveries,) because our actions for recovery of land have been confined almost exclusively to ejectment, in which voucher does not lie. As for the writ of warrantia chart, I do not know that it has ever been resorted to. And the situation of the warrantee is embarrassed by our law of descent, which divides the real estate of thé warrantor among all his children, while the warranty is left to descend at- the common law, on the eldest son only. In such a situation it is very desirable that the whole law of warranty should be simplified, and adopted to common understanding, and to our present mode of conveyancing, which is altogether different from that which, prevailed when warranties were first introduced.

The next question which arose on the trial of this cause was, oft. parol evidence. The defendant offered to prove, that the plaintiff’s mother, under whom he claims, after the death of her husband, John Jourdan, delivered and ratified the deed of 31st December, 1802, which-had been executed by her and her husband, but had no effect as to her, because not acknowledged according to law. This evidence the court rejected, and their opinion may be accounted for, by the hurry of a jury trial, in which many points were to be decided in a short time.' Certain it is, however, that the evidence ought to have been admitted. The first execution of the deed by Mrs. Jourdan, was a nullity, because the terms of the act of assembly had not been complied with, by the magistrate who took her acknowledgment. There was no objection, therefore, to her delivering the deed, after the death of her husband, and such delivery might be well proved by parol evidence. There was error, therefore, in the rejection of that evidence. But besides this, the defendant offered to prove a variety of circumstances, from which it might be inferred, (in case the direct proof should fall short,) that Mrs. Jourdan had delivered this deed, after the death of her husband. This evidence was also rejected, and in my opinion improperly. It was decided in Carter’s lessee v. Straphan, Cowp. 201, that the deed of a married woman was void, but might be made good by delivery only after the death of her husband; also, that delivery might be presumed, from circumstances. Undoubtedly the circumstances should be very strong, from which a delivery should be presumed; but it was proper that they should be heard.

Last of all, the defendant offered in evidence, a variety of other matters mentioned in the bill of exceptions, from which it might appear, that- in the life of John Jourdan, the father, and his wife, and about the time of their executing the deed for the lands in dispute, to Hugh Jourdan the defendant; a family arrangement had been made, to which the father, mother, and all the children were parties, by which it was agreed, that the land of the mother should go, after her death, and her husband’s, to the defendant; and the land of the father to the other children; and that in consequence of this agreement, the defendant had been precluded from any share of his father’s estate. This evidence was rejected, but I think it should have been received. It is unnecessary, and indeed, would be improper, to give an opinion at present, on the equity of the defendant’s case. Suffice it to say, that the case appears to be a hard one, if he loses his mother’s land, and he ought to have been permitted to show all the circumstances of the family agreement, which he undertook to. prove. We may easily conceive, that a case might possibly have been made out, in which the equity would have been irresistible. He may have released to the other members of the family, all his right to his father’s land, on ¿he faith of their consent to his enjoying the land of his mother. . All, however, that need be. said at present, is, that his evidence should have been heard; and in that stage of the cause, I am of opinion, that the deed from Jourdan, the father, and his wife, to the defendant, might have been' evidence, as a component part of the family agreement; though not as a conveyance passing the' estate of the wife.

I am of opinion, upon the whole, that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire de novo awarded.  