
    *Rachael Meddock v. Amos T. Williams.
    A certificate of acknowledgment to a deed, by husbandand wife, stating that the wife was examined “ according to law,” is not sufficient to bar her of dower after the husband's death.
    Such certificate is no more than the opinion of the officer taking the acknowledgment.
    The certificate must show upon its face what acts were done, that the court may see that the requisitions of the statute have been properly complied with.
    This is a Bill in Chancery, for the assignment of dower, in Hamilton county.
    The bill states, in substance, that complainant’s husband, Abijah Meddock, during the coverture of complainant, was seized in fee of a tract of land in Hamilton county ; that Abijah Meddock died in April, 1837 ; that complainant has never released her right of dower in the premises in question, and that no part thereof has ever been assigned to her as dower ; that defendant is in possession.
    
      The defendant in his answer sets up, as a bar to the complainant’s claim, a deed purporting to have been executed by Abijah Meddock and Rachael his wife, to James H. Huston, under whom defendant claims •title, conveying the premises in question, and bearing date June 6, 1816. The acknowledgment of this deed was made on the day of its date, and is in these words :
    “ State of Ohio, Hamilton county : Before me, James Sisson, a justice of the peace within and for said county, personally appeared Abijah Meddock and Rachael, his wife, who, being examined according to law, acknowledged the above deed of conveyance to be their voluntary act and deed, for the uses and purposes therein mentioned. In testimony whereof,” etc.
    The only question is, whether this acknowledgment of the deed is sufficient, under the statute, to pass the interest of Rachael Meddock in the premises described in the bill.
    *Thompson & Gwynne, and Alexander H. McGuffey, for complainant.
    The deed which is pleaded and exhibited in bar of the widow’s dower, was executed, as has been stated, in the year 1816 ; and the only question (if indeed there can be any question in the case) is, whether the defective certificate of acknowledgment attached to the •deed, and of even date with it, does not estop the complainant’s claim to be endowed of the land of which her husband was seized in fee. and which is described in said deed.
    The statute of 1805 regulates the acknowledgment of this deed. The second section of this statute, 1 Chase’s Stat. 485, provides that where any husband and wife shall incline to dispose of, and convey the estate of the wife, or her right in and to any lands, etc., it shall be lawful for the said husband and wife to execute a proper instrument of conveyance, and, after such execution, to appear before a judge of the Supreme Court or Court of Common Pleas, or a justice of the peace, and acknowledge the same ; which judge or justice of the peace is hereby authorized and required to take such acknowledgment, “ in doing whereof he shall examine the wife, separate and apart from her husband, and shall read or otherwise malee lenown the full contents of such deed or conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed deliver the said deed of conveyance, without any coercion or compulsion of her husband, such deed or conveyance shall be, and the same is hereby dedared to be good and valid in law,” etc. etc. ; “ and the judge or justice taking such acknowledgment shall, under his hand and seal, certify the same upon the back of the deed or conveyance.”
    In the case of Connell v. Connell, 6 Ohio, 358, the court say : “ A construction was given to this statute, in the case of Brown v. Parran, 3 Ohio, 140. In that ease it was held that the certificate of acknowl379] cdgment must show, either in ¿express terms, or by implication, a compliance with every substantial requisition of the law. • Before the rights of the wife to lands are affected, the second section requires, first, a separate examination ; second, that the wife be made acquainted with the full contents of the deed ; and, third, an acknowledgment that she voluntarily sealed and delivered it.” In the same case, it is decided that, because it did not appear from the certificate that the contents of the deed were made known to the wife, she was entitled to dower. The direct applicability of this decision to the case now under consideration, is destroyed by the act of 9th March, 1835 ; Swan’s Stat. 269; yet the authority is relied on as settling the law to be, that every act rendered necessary to be done by the law, must be certified by the justice, and that the omission to certify any one of them vitiates the certificate.
    But although the act of 9th March, 1835, takes from the complainant, one ground of objection to the sufficiency of the certificate, by rendering it immaterial whether the contents of the deed had been explained to her, yet there remain two other objections to this certificate, either of which, it is claimed by complainant, must be fatal to the instrument, as a bar to complainant’s claim ; for the certificate does not show, either in express terms, or by necessary implication, that there was a separate examination of the wife, or that she, individually, declared the sealing and delivery to have been her voluntary acts.
    The plain and only import of the language of the certificate is, that both Abijah Meddook and Rachael, his wife, appeared at the same time before the justice, and were examined together, and made the acknowledgment in the presence of each other. Indeed, it is not easy to find language which shall convey this meaning more clearly, without resorting to an accuracy and technical nicety of expression never found in such instruments, and only necessary in-pleadings at law. The names are connected in the same sentence by the copulative conjunction “ and,” and, standing thus in juxtaposition, the relative “ who” 380] immediately following, refers to them as thus ¿coupled; and, according to all rules of construction, whatever it designates as being done, is the joint action of both the persons to whom it relates. And so far from the concluding language of the certificate, that “ they were examined according to law,” being true, the language employed irresistibly brings the mind to the conclusion, that they were examined in direct violation of law, in being examined together.
    But let it be conceded, for the purposes of argument, that this most obvious construction of the language of the certificate is not the true one, and that, by some ingenuity of defendant’s counsel, it can be-made to appear that the wife actually was examined apart from her husband, and, upon such examination, declared that she had voluntarily executed and delivered the instrument. What then ? Is this-sufficient to meet the requirements of the statute, which directs that the separate examination, etc., “ shall be certified upon the back of the deed or conveyance, under the hand and seal of the officer ? ” Every essential act must be shown, in some manner, to have been performed ; and as the officer does not act in a judicial, but rather in a ministerial capacity, the judgment he pronounces on his own conduct, in declaring that he acted “ according to law,” raises no presumption that he has done those things which he fails to certify. If he states facts, they can not well be contradicted ; and the statute imposes on him, for the benefit of all the privies in the deed, the duty of recording the fact that the wife was examined apart from her husband, and that, under such examination, she declared the execution and delivery to have been her voluntary acts, in order that every person who inspects the title, may, without trying the question whether the justice has, or has not, acted “ according to law,” be able to decide that the wife has had all the protection which the law intended to afford her, and that her right of dower is unquestionably relinquished. Brown v. Farran, 3 Ohio, 140 ; 3 Dana’s Kentucky, 118.
    It is deemed unnecessary to comment further upon the defects of the certificate of acknowledgment, and we dismiss it, therefore, with the remark, that it not only fails to show the *facts which the [381 statute requires should be shown by.it, but that it even furnishes strong ground for a belief that Mrs Meddock was not examined apart from her husband, and, consequently, that no legal declaration was made by her that the execution and delivery of the deed were her voluntary acts.
    An objection to the complainant’s right to dower in the lands in-question, growing out of the body of the deed to Huston, has been intimated, and will probably be relied on by the defendant’s counsel, and should be noticed in anticipation. If urged, more will be said in reply. It is, that by joining in the grant to Huston, under whom defendant derives title, the complainant had barred the claim set up in this suit.
    It is true that the wife joins in the granting part of the deed ; but she does not join in the warranty, nor can there be found in the deed any word applicable to dower, or evincing the intention on the part of Mrs. Meddock to release or convey it. Is she barred of her dower by thus joining with her husband in conveying his estate? We think not. There might be doubt as to the effect of such conveyance, if dower can be released without specifically naming that kind of estate, and if, in Ohio, as is the case in Massachusetts, the acknowledgment of the husband — for certainly the wife’s acknowledgment in this case is a nullity- — could effect a transfer of the wife’s estate. But the statute of 1805 expressly declares that the deed of the wife shall be good and valid in law, to all intents and purposes, as if she had been a feme sole at the time of the sealing and delivery, but upon the express condition that she shall have been previously examined by the justice, apart from her husband, and, on such examination, shall have declared that she voluntarily sealed and delivered the said deed, etc. etc., and that the justice shall have certified these facts on the back of the deed. Such are the requirements of the law ; and although the acknowledgment is no part of the deed, it is equally certain that a feme covert can not be barred of the right of dower, unless these requirements have all been complied with, and the facts specifically certified by the justice. The instrument may be a deed, as against the husband and his 382] heirs, but as against the *wife it is a nullity. If this be not the case, the wife is, by some inexplicable fiction of the law, deprived of the benefit of the privilege of a separate examination, which is her only protection against the coercion or persuasion to which she is liable during coverture. McFarland v. Febiger’s heirs, 7 Ohio, 195 ; Lessee of Foster v. Dennison, 9 Ohio, 125 ; Mitchell v. Dunlap, 10 Ohio, 117 ; Hughes v. Watson, Ibid. 127 ; Carr v. Williams, Ibid. 305.
    Complainant claims to have dower assigned to her in conformity with the statute on that subject, as expounded by this court.
    Morris and Rairden, for defendants.
    We suppose there can be no question as to the validity of the deed, •to bar the dower of the petitioner, if the acknowledgment by her is •sufficient under the statute.
    
      The law of 1805, under which this acknowledgment was taken, requires the officer taking the acknowledgment to “ examine the wife separate and apart from her husband, and shall read or otherwise make known the full contents of such deed or conveyance to the said wife ; and if, upon such separate examination, she shall declare that she did voluntarily,” etc.
    The simple question in this case is whether the acknowledgment is sufficient to bar the dower claimed.
    This certificate is in substantial compliance with the law. The law requires a separate examination of, and explanation to, the wife. The officer certifies that he has examined the wife according to law, and that she with her husband acknowledged the deed to be their voluntary act and deed, etc. What law is here referred to ? The law prescribing the mode of taking the acknowledgment. How according to law? That he has done all that the law requires. This, then, is a substantial compliance with the statute. It conveys the information, though in terms he does not state the precise acts done, nor does he use the •terms of the statute.
    *This certificate says that the parties appeared, that is the [383 husband and wife, “who, being examined according to law,” acknowledged the deed to be their voluntary act and deed, for the uses and purposes, etc. Who were examined according to law ? It must have been the wife, because the law required none other to be examined. Who acknowledged ? The parties who appeared, of course, because the law required both to acknowledge. This certificate, then, shows substantially that the wife was examined separate and apart from her husband, and acknowledged the deed to be her voluntary act and deed, for the uses and purposes therein mentioned. Not in terms, we admit; but from what is stated the inference is irresistible, that the law must have been complied with.
    In the ease of Brown v. Farren, 3 Ohio, 140, the acknowledgment is substantially the same as in this case, and was held good. In that case the court say “ that his certificate must contain the substance of every thing required by the law.” This authority is sufficient to establish the principle that the substance of the law is all that can be required.
    In the case of Newcomb’s Lessee v. Smith, Wright, 208, the acknowledgment was made “ agreeably to the act in such ease made and pro'-vided,” and the court say, “ The case of Brown v. Farran, 3 Ohio, 152, is in point. If the matter not expressed in words is fairly inferrable from what is expressed, that will do. Id this case the words ‘ agreeably to the act ’ would seem to include all the law required.”
    In the case of Martha Stall v. The Bank of the United States,, decided at April term, 1836, in this county, the court made the following decree:
    Martha Stall, T v. V Bank United States. )
    In Chancery, on appeal.
    “ This cause came on to be heard this day, on the bill, answer, and exhibits, and the arguments of counsel being heard, and the same fully considered, and thereupon the court do find that the complainant 384] did, on the third day of January, 1808, ^execute and deliver the deed set up by the defendants in their answer, conveying the premises in said bill named to John Cranmer, dated on that day, and acknowledged the same day before a justice of the peace of Hamilton county, who certified the same in the following words, to wit:
    “ ‘ Before me, the undersigned, one of the justices of the peace within and for said county, came personally Edward H. Stall, and Martha Stall his wife, the within grantors, and the said Martha, being of mature age, and examined agreeably to the act in such case made- and provided, acknowledged the above instrument to be their voluntary act and deed, for the uses and purposes therein mentioned.
    “ ‘ In testimony whereof, I have hereunto set my hand, and affixed my seal, this third day of January, A. D., 1808.’
    “ And that the defendants claim title under said deed; and the court do further find that the equity of the case is with the defendants, and that the said acknowledgment is good and valid in law to bar the said complainant of her dower in the said bill mentioned; and thereupon the court do order, adjudge, and decree, that the said bill be dismissed at the costs of the complainant, to be paid in thirty days, and in default thereof, that execution issue thorefor, and to that end this cause is remanded,” etc.
    These cases, it seems to us, settle the question in this case, and since the case of Martha Stall the question of dower has been regarded as settled in all cases where the acknowledgment of the deed has been made similar to those in question. The words “ according to law ” being regarded as equivalent to the words “agreeably to the act.” And now to overrule the decision in the case of Stall v. The Bank, the consequence will be to open all the cases which, since 1836, have been regarded by all as settled by that case.
    
      Eor the purpose of ascertaining what the consequences to holders of property in this county would be, to set aside the decree in that case, we have examined the records of conveyances of property in this county prior to 1820, running through about twenty-four volumes, oi from 200 to 600 pages each. *We find that about two-thirds of [385-all the deeds, where dower is released, the acknowledgments are certified in the forms of the certificate in this case, and in the ease of Stall v. The Bank, and many of them taken by lawyers, acting as justices of the peace, and judges of the court; showing, evidently, that these acknowledgments were considered good, by those who transacted business at the time, to bar dower. That the law was substantially complied with.
    The certificate in this ease shows that the wife, “ after being examined according to law,” acknowledged the deed to be her voluntary act and deed, for the uses, etc. Now what inference can be drawn from this certificate, but that the wife was examined, separate and apart from her husband, and acknowledged, etc.
    The above remarks are made upon the hypothesis, that the act of 9th March, 1835, Swan’s Statutes, 1841, page 269, renders the acknowledgment .sufficient, without it appearing that the contents were made known.
    As to the law of 1835, We deem any notice of it unnecessary, further than to refer the court to the act. It may be contended, however, by the complainant’s counsel, that this law is invalid. We submit a passing remark :
    There is no question that acts of the Legislature, retrospective in their operation, are valid, where they do not conflict with the Constitution, or interfere with vested rights.
    There is nothing in the Constitution of the United States, or of Ohio, which prohibits this law. An ex post facto and a retrospective law, in legal moaning, are very different. 3 Dallas, 38.
    As an ex post facto law, it is not prohibited by the Constitution. Does it interfere with vested rights ? We suppose it can not be seriously contended that the complainant had any vested right in her, after the deed, in 1816, and before the death of her husband, in 1837. This law passed in 1835, and took effect on the 9th day of March, of that year, before the wife of Meddock could have a right of dower vested in her.
    *This law makes that good which the complainant intended, at [386-the time of her deed should be good. 3 Dallas, 38; 2 Peters, S. C. 627 ; 10 Peters, S. C., 294 ; 16 Mass. 245 ; 12 Wheaton, 378 ; 9 Mass 151, 360 ; 16 Mass. 260, 226 ; 4 Conn. 209.
   Read, Judge.

The act of February 14, 1805, in force at the time of the execution of this deed, required that a deed, to be binding upon the wife for the conveyance of her estate, or any right to lands, etc., should be acknowledged before a judge of the Supreme Court or Court of Common Pleas, or a justice of the peace; and the judge or justice taking such acknowledgment “ shall examine the wife, separate and apart from her husband, and shall read, or otherwise make known the full contents of such deed or conveyance to the said wife ; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and .deed, deliver the said deed or conveyance without any coercion or compulsion of her husband, every such deed or conveyance shall be, and the same is hereby declared to be good and valid in law, to all intents and purposes, as if the said wife had been sole, and not covert, at the time of such sealing and delivery; and the judge or justice, taking such acknowledgment, shall, under his hand and seal, certify the same -upon the back of the deed or conveyance.” 1 Chase, 485.

In Connell v. Connell, 6 Ohio, 358, and Brown v. Faran, 3 Ohio, 140, this court has given a construction to the act under which this deed was executed. The certificate of the acknowledgment must show, either in express terms or by implication, a compliance with every substantial requisition of the statute. This act requires, before the .rights of a wife to lands can be affected under it—

First : A separate examination of the wife ;

Second : That the wife be made acquainted with the full contents of the deed ;

Third: An acknowledgment that she voluntarily sealed and delivered it.

*It can neither be gathered from inference, implication, or the words of this acknowledgment, that the wife was examined separate and apart from her husband, or that the contents were made known to her.

A certificate by an officer that he has acted according to law, is no •evidence that the things are done which the law requires. It is evidence of the opinion of the officer, nothing more. It is the duty of the officer to certify the things he has done, and the court will then judge whether he has pursued the law. It is not a certificate of the opinion of the officer that he has pursued the law which the statute requires, but a certificate of the acts he has pursued in obedience to the statute. The certificate itself must contain all the acts done, that it may appear upon its face that the requisitions of the statute have been complied with.

This deed would constitute no bar, even if the curative act of 1835 had been held valid. But it has been held, in the ease of the Lessee of Good v. Zercher, ante p. 364, decided at the present Term, that that act is inoperative to cure a defective acknowledgment, so as to deprive the wife of her estate.

This acknowledgment, then, is wholly defective, and the deed constitutes no bar to the assignment of the widow’s dower.

Decree for complainant.  