author: Birchard, Judge.

text:
    James Galloway, Jr. v. D. Barr and H. H. Finley.
    A Oourt of Chancery will not refuse to compel the execution of a contract on the ground of inadequacy of price, where the vendor, after making of the contract, with full knowledge of the facts, had refused to rescind, and held on to a part of the purchase money.
    "Where both parties have dealt with equal means of knowledge, and with their eyes open, the court will not presume the consideration to be inadequate.
    Delay of payment, where the title of the vendor is doubtful, and a litigation is pending to establish his title, will not be ground for refusing a specific performance, wfyere the purchase money was promptly tendered upon the litigation being ended.
    This is a Bill in Chancery, for specific performance, reserved from the county of Greene.
    The facts are these: — Charles Bradford owned land warrant No. 355] 4467, for 2666|- acres of Virginia Military Lands, which, *after his death, was located, entered, surveyed and patented in his name, •in three surveys, viz:
    Entry No. 2277, for 1000 acres, in G-reene county;
    Do. 2278, for 1200 do. do.
    Do. 4456, for 466-| do. in Brown county.
    ■ About 1789 Charles Bradford died intestate, leaving Henry G“ Bradford, Charles A. H. Bradford, Elizabeth Julia, (wife of John Finley,) and Fielding M. Bradford, his heirs at law. The first two died intestate, leaving the last two their heirs at law. Mrs. Finley ■died intestate prior to November, 1815, leaving H. H. Finley and Elizabeth Julia Ann (since intermarried with respondent Barr) her heirs at law.
    Shortly after the death of Mrs. Finley, her husband, John Finley, •and Fielding M. Bradford, visited Ohio, and, on the 29th day of November, 1815, sold and conveyed to the complainant, with covenants ■of warranty, the said three surveys, for the consideration of $3,500, as expressed in the two- deeds of conveyance. At the time these deeds were made, Galloway was aware of the death of Mrs. Finley, and that she left two children, who were then of tender years. He, however, took possession of the lands, and soon after sold the entries in G-reene ■county to actual settlers, at prices varying fron $5 to $10 per acre, who have since been in possession, claiming as owners. Entry No. 2277, by actual measurement, was found to contain 1346£ acres, and No. 2278 contained 1497 acres ; making a surplus of 643jjr acres. In 1834 H. H. Einley arrived at the age of majority, and Elizabeth J., intermarried with defendant Barr ; and, in the year 1835, Barr and H. H. Einley having heard that they had a claim to the land, visited Ohio for the first time; and, on learning its situation, they entered into a contract with Galloway for the sale of an undivided moiety of the Greene county lands to him. The contract recites the derivation of title, as above, not noticing, however, the time of Charles Bradford’s decease, and then witnesses that said II. H. Einley, and Barr and wife, do sell to Galloway one undivided moiety of said Greene county surveys, for which he agrees to pay them $8,000, as follows :
    *Cash in hand...................................................$1,000
    His note payable at Franklin Bank, Jan. 1, 1836..................2,000
    Do. do do. Jan. 1, 1837....... 1,666$
    Do. do. do. Jan. 1, 1838 ................. 1,666$
    Do. do. do. Jan. 1, 1839....... 1,666$
    The vendors covenanted that'they were seized in fee, and to execute a general warranty deed on full payment.
    Gn the 12th March, 1835, Galloway conveyed, by quitclaim, to Barr his interest in the Brown county survey, in consideration of the trade for the other land, as he affirms, or, as contended by Barr, in consideration of $104.13, indorsed upon the note due on the 1st January, 1839.
    Soon after this contract bears date, Elizabeth (wife of Barr) died intestate, leaving H. H. Einley her sole heir at law.
    In May, 1835, Galloway, for the first time, ascertained that Charles Bradford, the patentee, died before the entries were made, and supposing the whole title and entries void, he procured warrants, and located them on the same land. In the meantime James Stewart had become the assignee of the $2,000 note, due January 1st, 1836, and notified complainant of the fact by letter. On the 10th of October of the same year, having perfected his new entries, Galloway filed a bill in the Circuit Court of the United States, at Pittsburg, Pennsylvania, to cancel the contract of March 11, 1835, on the ground that the entries, surveys and patents, were void, but expressing his willingness to comply if a good title could .be made him. These defendants, in their answer to that suit, among other things, set up their willingness to comply with the contract. Galloway was defeated in the Circuit Court, and appealed to the Supreme Court of the United States, in which the litigation continued until the latter part of the January Term, 1838, when it was brought to a close by a final decree, affirming the validity of the contract, and the validity of the title of the heirs and legal representatives of Fjharles Bradford, as reported in Galloway v. Finley and others, 12 Peters, 269. Pending this suit, the $2,000 note was assigned to Stewart, was protested for nonpayment, 357] but subsequently was paid to him. The note due ^January 1st 1837, was forwarded to the Franklin Bank, and protested for nonpayment. In January, 1837, C. L. Merrick called on Galloway, at the request of Barr, to inquire if he would pay the money, and informed him that Barr was ready to receive the money, but that if he would-not then pay, he would not call again. Merrick stated that he called as a neighbor, not as the agent of Barr ; to which Galloway replied, that he would only pay the price of a law suit.
    After the decision in the Circuit Court, and before the appeal was-perfected, Barr, on the 9th June, 1837, wrote to Galloway to ascertain his intentions as to making payments; to which the latter replied, on the 14th of the same month, stating that he had directed an appeal, which he should prosecute, unless otherwise advised by his counsel; and, if otherwise advised, he would give Barr notice and pay the money. On the 5th July, 1837, H. H. Finley sold and conveyed to Barr, for the consideration of $3,500, all his interest in the contract and land.
    On the 14th day of May, about three months after the termination-of the suit in the Supreme Court of the United States, Galloway then tendered to Barr the whole amount then due on the contract, and also tendered, at the Franklin Bank, the last two payments, as they fell due January 1st, 1838-9, but the notes were not there. Sometime in June or July, 1838, Barr tendered back to Galloway the cash payment, but made no effort to restore the lands in Brown county, or the $104 13, indorsed on tho note due in 1839.
    The case was elaborately argued by H. Stanbery and Thomas Ewing, for complainant, and by Peter Hitchcock, for defendants.
   Birchard, Judge.

By the deed of John Finley and Fielding M. Bradford, executed on the 29th November, 1815, the complainant became owner, in fee, of the undivided moiety of the three surveys, and of the estate, by courtesy of John Finley, (who is yet alive,) in the other moiety. He also acquired a right of action upon the covenants of that deed.

^Charles Bradford, the warrantee, died prior to the entries in his name, which were made before the year 1807. There is no proof of any fraud in the purchase of F. M. Bradford and John Finley; and if the consideration was not paid in full, (which does not appear, while the legal presumption is, that full payment was made,) it would not avoid the deed, but would only operate as a lien on the land inter parties,

Barr, II. H. Finley and his uncle, went to view the land before they called on Galloway, and found it in the adverse possession of purchasers from him, whose possession was of twenty years’ standing. All the parties then supposed the patent from the United States sufficient to vest a valid, legal title in the patentee and his heirs, and acting upon this assumption, (which has become fact by virtue of the act of Congress of 1836, as explained -in reference to this identical title, in 12 Peters, 269,) they considered the purchasers and occupants, as they were in fact, legal owners of an undivided moiety of the land, each, in his own right, derived from Fielding M. Bradford, and of the life estate of John Finley in the other moiety, with a right to demand compensation of Finley their father, on failure of any part of the title. This was the state of things when the contract of 1835 was entered into, and which should be considered in determining whether the inadequacy of price is so great as to justify the Chancellor in refusing to enforce a specific performance.

Both parties dealt with their eyes open. The respondents were strangers in the State, and may not have been as well informed of the value of the property as complainant, who had been well acquainted with it for many years, and had dealt largely in Virginia Military Lands. But they did not rely upon him for information ; and, if they distrusted the sufficiency of their own, might have acquired knowledge of its value by making suitable inquiries in the neighborhood. They had no right to expect Galloway would volunteer information tending to induce them to increase their demands of him for lands which, twenty years before, he had purchased of their father, at a price considered fair, and which was but a trifle *less than the [359 minimum price of United States’ lands ; more especially, as the only profit of the purchase to Galloway, was the difference between the sum to be paid them, and the sum which his vendees might recover on his covenants of warranty — less the amount of the claim against their father and the estate of Fielding M. Bradford.

This view presents the case in a very different light from that in which it is seen by respondents’ counsel. Indeed, it was hardly fair to treat the actual value of the land in 1835, as the true test in determining the question of adequacy of consideration ; ifirst; Because it was incumbered with a life estate of uncertain duration ; Secondly : It was in the actual possession of other persons, who had claimed it as. owners for twenty years, who had recorded titles, and, if dispossessed by paramount title, had a right, under the act for the relief of occupy’ ing claimants, to demand pay for their improvements ; Thirdly : Such lands are generally sold for a large percentage less than the actual value, fixed upon the suppo.sition that the title is undoubted, on account of the well known difficulty and uncertainty of all titles in the Virginia Military District. Those who best understand this description of titles, and who have dealt largely in them, lose, on an average, not less than one tenth of their purchases, by some defect springing up-which was not anticipated, and which nothing but extreme vigilance eoiild have guarded against; Fourthly: One who buys a tract of twenty eight hundred acres of land for the purpose of reselling it, is not expected to pay the full amount for which it could be retailed in small parcels. On the supposition that there is no known defect in the title, such a sale in the Virginia Military District, for cash payments, is often made for not more than half the actual value of the’ land. The weight of evidence fixes the whole value of this land at about $35,000. But admitting the value in 1835 to be the sum estimated by respondents’ counsel, $50,000, let us try the question of inadequacy of consideration :—

They claimed a moiety of this, which is...................... $25,000'

From which should be deducted the incumbrance of A life estate, equal to seven years’ interest, which is 10,500

*Also the consideration paid John Finley, and five years’ interest thereon.................................... 2,275-

Also the expected profit of a purchaser, who takes the trouble and risk of a resale — say 20 per cent, on the capital invested....................................... 4,000

And we have the gross sum of $16,775, which, deducted from $25,-000, leaves but $8,225, for which complainant gave up his claim to the land lying in Brown county, and agreed to pay $8,000. In this calculation no deduction is made on account of sundry parcels of the land sold for taxes, and which were probably forever lost to the proprietor. The whole land is estimated at the highest price, assuming the title perfect. If respondents’ counsel had taken this view of the facts, would they have stated that “ G-alloway persuaded the defendants to agree to sell property worth $25,000, for $8,000 ; ” and, on the. strength of the erroneous assertion, put the questions, as if they were unanswerable, “ Is it right ? Was it fair ? Is it honest ? ”

We have endeavored to look at both sides of this case, and must say that, to us, it seems these young men, with the aid of their advisers, did not make so bad a bargain. They evidently appreciated the situation of Galloway. They knew that he had sold the land, years before; had conveyed, with covenants of warranty; and, at all hazards, must protect the purchasers, or respond to them in damages. This is shown by their threats to sell to General Taylor, if he would not give their price. Might it not with some propriety be asked, if they did not take advantage of his situation to drive a good bargain with him ? Under the circumstances it is certainly not unfair, but quite reasonable to presume, that they would have sold to Taylor, or any other person, if they could have made a better trade.

There is another view of the facts quite conclusive upon the respondents. At the January Term, 1838, of the Supreme Court of the United States, the complainant was seeking a recision of this contract, under a belief that the respondents could not make him a good title.. They successfully resisted him, and procured a decree establishing their title and affirming *the contract. The facts show that they [3&1. were at that time in full possession of all the circumstances of imposition, overreaching and fraud, if any there were, and the conclusion is hardly to be escaped that they, with full knowledge of the facts, had formed the determination to abide by the. terms of the contract, and to waive all advantage which, otherwise, they might have taken. We-think their conduct at that time, and before, was such that they ought not now to he allowed such an objection : that, even if there was some evidence of imposition and inadequacy, they should, in equity, bo regarded as having waived all objections, and as electing to affirm the-, contract, with a perfect knowledge of all the facts affecting their rights. The next ground of defence is, that this cause was fairly before the Supreme Court of the United States — was there adjudicated, and the-decision final. But that bill was filed to rescind, not to enforce, the contract. As amended and finally heard, the complainant, it is true, expressed his readiness to comply, and his desire to do so, if the defendants should be adjudged capable of making him a good title. By the terms of the contract he was not then entitled to a conveyance,, and if he had prayed for it, which he did not, the court would not have decreed it. The prayer for general relief can never be regarded. sufficient to justify a decree for any specific or other relief to which the party, by his own showing, is not entitled. It will meet only the case made ; and the case of Galloway v. Finley and others, reported in 12 Peters, 269, was not like this. Besides, a former adjudication is neither plead in bar, nor relied upon in the answer; and, clearly, the allegations of the bill are not such as to render the objection available on demurrer, if the respondents had interposed one.

It remains to be considered whether the conduct of complainant, and the delay of payment, have been such that a court of equity should refuse to interfere in his favor. Soon after the execution of the contract Galloway received from one of defendants’ attorneys a copy of C. Bradford’s will, from which he discovered, for the first time, that the lands were entered and patented in his name, after his death, and 302] that the titles *were void. Twenty years before he had purchased and paid for the same land, $3500. He had sold it to others, and was bound to protect their titles. To a moiety of the land, and to a life -estate in the other moiety, his title was independent of these respondents ; and if to be secured by a re-entry, he had no right to call on them to make it, or, if otherwise, no reason to expect they would comply in time to prevent intermediate entries. Accordingly he procured warrants, and caused the lands to be entered in his own name; and in so doing did precisely what any prudent man would have done under like circumstances, who was acquainted with the unconscientious greediness of speculators in the Virginia Military District, in seizing upon good unappropriated lands. If he had by this means secured the title to the land, a court of equity might have adjudged him a trustee of respondents, to the extent of their claim, they being at their share of the expense. This would be going far enough. It would not regard his claim of the entire benefit of the entry, a discharge from the contract, because his exclusive claim could only be resisted in virtue of the contract: The relation of vendor and vendee existing between them would not be destroyed by the new entry, but the latter would be modified, and have effect consistent with the equities arising from that relation, coupled with the attending circumstances of the case. When, therefore, the suit was commenced in the circuit court, the contract was open and obligatory upon both parties. 'The title of the land was different, however, from what both supposed it, and was sufficiently doubtful to justify a resort to a court of equity to have all doubt removed ; and if incapable of removal, to justify a decision. No mai should be compelled to part with his money on a doubtful title. Common prudence forbids it, and equity never requires •it. In fact, the respondents had at that time no title at all. It is true, the act of Congress, approved in 1836, as held by the Supreme Court, operated to vest a title in the heirs, etc., of Charles Bradford, but down to the very moment when that opinion was announced many of the best lawyers of this state considered the question extremely doubtful. *There was, then, an apology for the conduct, andan [363 excuse for the delay of payment pending the litigation. On the 14th of May, and within three months after the date of the decree procured at Barr’s instance, affirming the contract, and before any movement had been made by Barr, indicating a change from the course he had previously pursued, (3-alloway tendered to him all that was due, and since then has regularly tendered the residue of the purchase money, as it fell due. The first unequivocal act on the part of Barr, indicating a desire to put an end to the contract, was his offer to repay, in -June, 1839, the $1000 paid in hand. But, admitting his right to rescind, this was not sufficient. He should have reconveyed an undivided moiety, and the life estate in the other moiety of the land in Brown county, or returned the $104.13 indorsed on the note due January 1, 1839. In order to work a recision of the contract he should have done all that was necessary to place the complainant in statu quo. But the effort, if properly made in other respects, was too late in point •of time. If he desired to take advantage of the delay in payments to resist a specific performance, he should have been prompt — should have made his tender of the $1000, etc., with the money paid to Stewart on the note for $2000, within a reasonable time after the default upon which he intended to rely. Instead of doing this, he treated the contract as subsisting long after the notes were protested —urged it in his answer — insisted upon it in argument, and did nothing to the contrary until the Supreme Court decided that he was able to make a good title, and until G-alloway had secured that title to himself, by making his tender of all that was due. As the purchase money, although tendered, was not duly brought into court, the complainant will take a decree without costs.

Decree for complainant.


source: Caselaw Access Project

author: Read, Judge. Birchard, Judge,

license: Public Domain

text:
    *The Lessee of Christian Good v. Elizabeth Zercher.
    A married woman can only be divested of her estate during coverture in the manner pointed out by the statute.
    The forms required by statute for the execution and acknowledgment of instruments to convey or incumber lands of a feme covert must bo pursued strictly.
    Under our constitution, the Legislature has not power to enact laws that shall pass the land of a married woman by an instrument not binding upon her at the time of its execution.
    The act passed March 9, 1835, to render valid acknowledgments certified prior to that time, which omit to state that the deed was read, or contents made known to the wife, is unconstitutional, inoperative, and void, as to deeds executed by married women under tne act of 1820, requiring such deed to be read or contents made known.
    This is an action of Ejectment from Columbiana county, upon an agreed statement of facts.
    The material facts and points made are stated in the opinion of. the-court.
    C. D. Coffin, for plaintiff.
    Loomis and Mason, for defendant.
   Read, Judge.

The fee in the land for which the action is brought was in Elizabeth Zereher, wife of George Zercher, on the 9th of April, 1828. On that day Zercher and wife executed a deed to John Glass, for a tract of land including the premises in question. The plaintiff’s lessor claims under this deed. Geo, Zercher, the husband, is dead,and his widow is in possession of the land.

Upon the trial, the deed executed by George Zercher and wife was offered in evidence by the plaintiff, and objected to, on the ground that the acknowledgment by the wife was not in compliance with the statute.

If this deed conveyed the title to Glass, judgment is to be entered for the plaintiff; if not, then for the defendant.

*The acknowledgment of the deed reads as follows :

“ Boardman, April 9, 1828.
“ Personally came before me George Zereher, who signs and seals the within instrument, who acknowledges the same to be his free act and deed ; also, Elizabeth, wife of the said George Zercher, and after being examined separate and apart from her husband, did acknowledge the same to be her free act and deed. Before me,
“ Andrew Beggs,
“ Justice of the Peace.”

The act of 1820, under which this deed was executed, provides that where a husband and wife, she being eighteen years old and upwards. shall, within this state execute any deed, mortgage, or other instrument of writing, for the conveyance or incumbrance of the estate of the wife, etc., such deed shall be signed and sealed by the husband and wife ; and the signing and sealing thereof shall be acknowledged by them in the presence of two subscribing witnesses, and also be-acknowledged by them before a judge of the court of Common Pleas or a justice of the peace; and such judge or justice taking such acknowledgment shall examine the wife separate and apart from her husband, and shall read, or otherwise make known to her, the contents of such deed, and if, upon such examination, she shall declare that she voluntarily, and of her own free will and accord, without fear or coercion of her husband, did and now doth acknowledge the signing and sealing thereof, the judge or justice shall certify the same, etc.

This act is similar in its provisions to the acts of 1805 and 1818.

At common law, the wife has no separate legal existence ; it is. merged in that of her husband, who acquires with her person the use and control of her property. She can neither sell nor convey, nor can-she make any binding contract for the disposition of her property.

The husband, having but a life estate in her lands, she can not be divested of the fee without the aid of the statute. And the statute empowering the husband and wife to sell has been *careful to [306-secure her from the coercion and imposition of the husband. It requires the intervention of an officer, who-se duty it shall be to examine the wife separate and apart from her husband, to make known to her the contents of the deed, and ascertain whether she executes the instrument of her own free will and accord, and without any fear or coercion from her husband.

If the steps prescribed by the statute to be pursued by the husband and wife, to convey the wife’s land, be not pursued, the wife is not divested of her estate.

The acknowledgment of this deed does not show that the justice of the peace taking such acknowledgment disclosed, or in any manner made known the contents of this deed to the wife. This deed, then,, did not divest Elizabeth Zereher of her land at the date of its execution, but as to her it was a perfect nullity. This point was expressly decided in the case of Connell v. Connell, 6 Ohio, 142. On the 9th day of April, 1828, the deed was a nullity. It deprived Elizabeth Zercher of no right to her land, and conveyed no right in law or in equity, so far as she was concerned, to John Glass. She parted with nothing; the purchaser took nothing ; it was as to her a mere piece of blank paper. Her husband died. This then was her land, in her own control, and under her absolute dominion. That it was hers absolutely, both at law and in equity, up to the date of the healing act of 9th March, 1835, no one denies. Por seven years after the date of this deed, the land belonged to Elizabeth Zercher, How then is it claimed that she has lost it ? Upon the ground that on the 9th of March, 1835, the Legislature passed the following act: That any deed, mortgage, or other instrument of writing, heretofore executed in pursuance of law, by husband and wife, for the purpose of conveying or incumbering the estate of the wife, or her right of dower in any lands, tenements, or hereditaments situate in this state, shall be received in evidence in any of the courts of this state, and elsewhere, as conveying or incumbering the estate or interest of the wife, or as releasing her right of dower, although the magistrate taking theacknow 367] edgment *of such deed shall not have certified that he read or made known the contents of such deed, mortgage, or instrument of writing to such wife, before, or at the time she acknowledged the execution thereof.” Swan’s Stat. 269.

Now, was it the intention of this act to make this deed operative to divest Elizabeth Zercher of her land? That act says any deed heretofore executed in pursuance of law, and the officer taking the acknowledgment shall not make known the contents,” etc. This deed was not executed in pursuance of law, but in violation of the very law which authorized its execution. We might well suppose that the Lesislature did not intend to make valid any deeds which were not executed in pursuance of law, but designed simply to give this act a prospective operation.

But suppose it was the intention of the Legislature to take away the lands of married women or widows by curing, or rather ereating) nullities into valid deeds, is it such an intention as the courts will carry into execution ?

The land belonged to Elizabeth Zercher at the date of the deed. The pretended deed, as to her, is a nullity. If the act of 1835 deprives her of the land, and. gives it to Good, the lessor of the plaintiff, it may well be asked, which takes it away, the deed, or the act of the Legislature ? The deed did not take it away is admitted. If it be taken away, then, it must be by the act of the Legislature. But, it is replied, it is the act of the Legislature, acting upon the deed, and giving it validity. But the deed is a nullity — nothing. In other language, it would be the act of the Legislature, acting upon nothing. And nothing, then, acted upon by legislative enactment, deprives this woman of her rights. It must be perceived, and it can not be disguised, that, if this woman is thus to be deprived of her land, it is by the pure, simple, naked power of this act itself.

By what authority can the legislature take this woman’s land and give it to another ?

It is the principal object of our political organization to secure each individual in .the enjoyment of his natural rights. And the chief glory of every citizen, however humble or weak, *is to feel, in [368 the omnipotence of constitutional protection, that there is no power under God can deprive him of his property or his rights. That the-government itself, under which he lives, is less than the individual man, except as it acts within the legitimate sphere prescribed by the people who made it. The right of property is coupled with the right of life, since the day that man first ate his bread in the sweat of his-brow. Hence it is declared in the Constitution that the rights of acquiring, possessing, and protecting property are natural, inherent, and inalienable. And there are but three ways known to the constitution by which a man may be dispossessed of his property — by the consent of the owner; when taken for a public use, upon compensation being - made in money ; and by forfeiture for crime.

How, then,- shall this land be taken from Elizabeth Zercher by this act? To-day it is hers absolutely; to-morrow, without her consent, and not taken for a public use, nor forfeited for crime, her land, by the operation of this statute, is transferred to another. Such an operation of this statute is unconstitutional, and contrary to the fundamental principles of all free government, and to this extent void.

But it is claimed that this is a curative statute, and that such have-been recognized and uniformly executed by the courts.

Curative statutes may operate if confined to legitimate objects. If one competent to do the act, attempts to convey a legal estate, and should, by defect in form, transfer an equity only, the Legislature might cure the defect, and convert the equitable into a legal estate, or in better phrase, unite the two. The Legislature may cure the title-to property, but can not create it. But, it is asked, what is the difference between an attempted conveyance by a man and a married woman ? The attempted conveyance by a man may transfer an equity. A married woman being disabled by the law, and only permitted to act as it prescribes in the sale of her lands, unless the statute be pursued, she conveys nothing, either in law. or equity.

It is just the same as though the Legislature should pass a law 369] enacting that all the attempted bargains between man and *man for the sale of property heretofore made, should be valid and binding ; because, in the case of a married woman, an attempt to sell is not a sale. But, it is said, the woman gets the money. The law says the husband gets it. Now, in the case of these attempted bargains, the Legislature would not be curing a bargain, but creating one, which they have not the constitutional power to do.

Acts which transfer no right can never authorize the Legislature, by law, to transfer property. It is said the courts of Pennsylvania have supported laws of this character. It is our duty to keep within the light of our own Constitution, and to know of no authority beyond its letter and spirit.

Judgment must be entered for the defendant.

Birchard, Judge,

dissenting. This is an ejectment, brought originally in the Court of Common Pleas, where the plaintiff recovered, and the defendant appealed to this court. The case depends upon the validity of a deed executed by George Zercher, and Elizabeth his wife, to John Glass, for the conveyance of one hundred and fifty acres of land, for the sum of $550, paid in hand, on the 9th day of April, 1828. The deed was in due form, and would have passed the title of Elizabeth Zercher, if the certificate of acknowledgment by the magistrate had been indorsed upon it in due form.

The law in force at the time was the act of February 24, 1820, which provides “ that when a husband and wife, etc., shall execute a deed, etc., it shall be signed and sealed by the husband, and the signing and sealing thereof shall be acknowledged by them in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing and sealing, and also be acknowledged before a judge or justice of the peace, who shall examine the wife, separate and apart from her said husband, and shall read, or otherwise make known to her, the contents of such deed, etc.; and if, upon such examination, she shall declare that she voluntarily, and of her own free will and accord, without fear or coercion of her husband did, and now doth acknowledge the signing and sealing thereof, the said *judge or justice [370 shall certify the same, together with the acknowledgment of the husband, on the same sheet on which such deed, etc., shall be printed or written.” 2 Chase, 1139, sec. 2.

The opinion of the majority of the court turns wholly upon the validity of the act of the Legislature, passed March 9th, 1835. The opinion holds that this statute is unconstitutional and void. ' From that conclusion I dissent altogether. The decision is of vast importance. If it be law, sad indeed is the fate of thousands who now repose in peace under the delusive belief that they are bona fide owners of their homes, with complete record evidence of a good title thereto. Probably not one deed in ten, executed in this State since 1820, is good under this decision; and, from my own knowledge of titles in the State of Ohio, I think I hazard, nothing in expressing the opinion, that not less than fifty millions in value of real estate will be affected by it. When such consequences must be the result of a principle, I can not conceive that I should discharge the duty that the public may claim of me, under the law which requires the dissenting judge to give the reasons of his opinion, were I to content myself by briefly stating, that “ my reason for dissenting is, that the opinion is not law ; ” and yet that would be the substance of my objection.

I will endeavor to .show, by authority, that this objection to tho opinion is well taken. Our statute of 1820, so far as this question is concerned, is, substantially, a transcript of the Pennsylvania statute of 1770, on the same subject. In that State, as in this, the justices, etc., taking the acknowledgments of deeds, from husband and wife, had for years fallen into a habit of abbreviating the certificate required by the act. The courts in that State, as has this court in like cases, held the certificates defective, and the owners of the land there, as here, failed to maintain their titles solely on that ground. In 1826, the evil had become so great as to induce the Legislature of Pennsylvania to enact a law declaring “ that no grant, bargain, sale, feoffment, deed of conveyance, lease, release or other assurance of any lands, tenements or hereditaments whatsoever, ^heretofore bona fide, made and ex- [37Í ecuted by husband and wife, and acknowledged by them before some judge, justice of the peace, etc., shall be deemed, held or adjudged invalid, or defective, or insufficient in law, or avoided or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgment made before such officer, as aforesaid, in the certificate thereof.” The act proceeds to declare, that all such instruments “ shall he as good, valid and effectual in law, for transferring, etc , the estate, right, title and interest of such husband and wife, etc,, as if all the requisites and particulars of such acknowledgment, mentioned in the act of 1770, were particularly set forth in the certificate thereof, or appeared on the face of the same.”

This statute is broader than the statute of Ohio now under consideration — was framed to meet a class of cases identical with those in-this state, by a legislative assembly limited by constitutional restrictions equally stringent with our own ; and, I may say, owing equal allegiance to the great and fundamental principles of natural right. As early as the year 1827 the Pennsylvania statute was brought before the Supreme Court of that state, and its constitutionality was affirmed. The court held that the defect of the certificate of acknowledgment was cured by the act of 1826. Tate and wife v. Stooltzfoos et al., 16 Serg. & Rawle, 35. Duncan, J., in delivering the unanimous opinion of the court in that case, remarked: — “ It is next objected, that the act of 1826 is unconstitutional. The general rule is, that all laws are, in their nature, prospective, yet this does not prohibit the Legislature from passing some laws which have a retrospective operation. Where the law does not impair the obligation of contracts, or is not ex post facto, every confirmatory act is, in its nature, retrospective ; and, in the opinion of the court delivered in Underwood v. Libby, 10 Serg. & Rawle, 101, it is stated that confirming acts are not uncommon : deeds acknowledged defectively by femes covert, proceedings and judgments of commissioners and justices of the peace, who were not commissioned agreeably to the constitution, or when their power ceased, on the 372] *division of counties, until a new appointment. Retrospective laws which only vary the remedies, divest no right, but merely cure a defect in proceedings, otherwise fair; the omission of formalities which do not diminish existing obligations, contrary to their situation, when entered into. These, and several like acts, are clearly constitutional.” I have seen no reason to change that opinion. It is an abuse of terms to contend that this is an act divesting vested rights. Such acts would be odious and unjust, as well as unconstitutional ; for it is not intended by a vested right, that it shall be a right to do wrong; to take advantage of a mere slip in form, when the transaction is a bona fide one, and to avoid an honest conveyance, fairly acknowledged, in the hands of an innocent purchaser.

In Massachusetts, “ statutes made to confirm acts by public officers, which would have been void for some informality, have never been questioned on constitutional grounds.” Bond v. Appleton, 8 Mass. 472.

Such has been the law in a sister state for the last eighteen years. The doctrine in the case before cited, 16 Serg. & Rawle, 35, has been affirmed and recognized as law as often as the question has arisen in that state. Shall it be said that a state with a people so enlightened as the people of that state are, with a bar eminent for its learning, and a judiciary exceeded by none for its integrity of purpose and independence of character, have tolerated, since 1826, a legislative act of the character which the opinion of this court would make it ?

The opinions of others give a conclusive negative. In 1834 the-same statute was brought before the Supreme Court of the United States, in the case of Watson et al. v. Mercer, 8 Peters, 109, and was sustained by the unanimous opinion of every member of that eminent tribunal, upon full argument. Did those' to whom the best of men have ever looked as the sheet anchor of our hope, when the constitution was assailed, prove treacherous to their high trust on that occasion ? Did it connive at a violation of the Constitution of Pennsylvania, by traveling out of the record to volunteer an opinion, erroneous in itself, in support of the act of 1826 ? No, it did neither. It ^proved faithful to the country by a discharge of its whole duty, [373 and no more. But it spoke thus : “ In the ease of The Lessee of Watson and wife v. Bailey, 1 Binney, 470, the acknowledgment of this very deed, from Mercer and wife to Thompson, was held to be fatally defective to pass her title. But the act of 1826 has been repeatedly held by the Supreme Court of Pennsylvania to be constitutional, and to give validity to such defective acknowledgments. It was so held in Barnett v. Barnett, 15 Serg. & Rawle, 72, and Tate and wife v. Stooltzfoos, 16 Serg. & Rawle, 35 ; and again, upon solemn deliberation and-•argument, in the ease now before the court.”

And again, in the same case, “ the argument for the plaintiffs in-error is, first, that the act violates the constitution of the United States, because it divests their vested rights, as heirs at law, of the premises in question ; and, secondly, that it violates the obligations of a contract, etc.” “ As to the first point, it is clear that this court has-no right to pronounce an act of the State Legislature void, as contrary to the Constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The Constitution of the United States does not prohibit the states from passing retrospective laws generally,” etc.

“ In the next place, does the act of 1826 violate the obligation of any contract? In our judgment, it certainly does not, either in its terms or principles. It does not even affect to touch any title acquired by a patent, or any other grant. It supposes the titles of the femes covert to be good, however acquired, and only provides that deeds of conveyance made by them shall not be void, because there is a defective acknowledgment of the deeds by which they have sought to transfer their titles. So far, then, as it has any legal operation, it goes to ■confirm, and not to impair, the contract of the feme covert. It gives the very effect to their acts and contracts which they intended to give, and which, from mistake or accident, has not been effected.”

*Why is it that the language of Justice Story is inapplicable to the act of 1835? Was not our statute intended to confirm, and not to impair, a contract ? Does it not give effect, and the precise effect to the deed in question, which Elizabeth Zercher intended ? No one doubts this ; yet it is said that the act, if effective, transfers the property of the woman, and that the transfer is not made by her own act. That, being a feme covert, her legal existence is, by the common law, merged during coverture, and that, therefore, living with her husband, she can do no act binding upon herself, independent of the statute. Admitting the existence and force of the position, and the conclusion based upon it, it by no means follows, that the transfer is the act of the Legislature, and not of the feme covert. Look at the question. See what is the disability, and how it was remedied. The common law rule held the wife incapable of acting in any way, during coverture, to divest herself of title to real estate ; and her husband, in whose existence, by a fiction of law, her own was merged, could not alien that to which he had no title. This produced an evil which was to be remedied, and the remedy was provided by the act of February 24, 1820. But how is it effected? The answer is given in the •statute. The husband and wife shall execute the deed by signing and sealing it in the presence of two subscribing witnesses, and by acknowledging it in the presence of the witnesses. The statute provides what this execution and acknowledgment shall be. Suppose all this done, and the deed delivered. It constitutes every thing that the law requires the parties to do to pass the title to the grantee. Yet my brethren .hold, not only that the title does not pass, but that, as against the grantor, it creates no equity. Why ? Certainly not because the grantor has omitted any act to be done by her, for the supposed case assumes that she has done every thing necessary for her to do in order to divest her title. So far as the vendor and vendee are concerned, the sale is -complete — their trade is made — the alienation is perfected ; and, before G-od and in conscience, the title and equity of the wife is in the vendee. What remains to be done, is merely to perfect the *evi- [375 denee of the transfer by indorsing upon the deed the certificate of acknowledgment, and this is to be done by a magistrate. It is a mere clerical act. If correctly done, the deed is good, and the vendee’s title is secure. If incorrectly done, the proper evidence of the sale is not procured, and this is all. Lessee of Foster v. Dennison, 9 Ohio, 125. The Legislature undertook to heal the defect, by enacting a law' that gives a new rule of evidence. If the power is wanting to enable them to do this, then may it be said that the sovereign power of the state is impotent indeed. That there are eases where the demands of justice require an authority to be exercised to prevent wrongs, injustice, and what, to a moralist, must be regarded as an iniquitous fraud, and yet there is no authority efficient to redress the wrong and to defeat the fraud. It is to my mind strange that, by the term property, which the constitution declares shall be inviolate, any one should understand a claim like this, which can not be honestly made. A construction so broad would strip the courts of chancery of three-fourths of their power; for we daily, and as often as the case occurs, put the titles of estates where equity and good conscience require they should be, and, under the statute, this result is effected by the operation of the decree, independent of the act of the party. The act of 1835 enables a court of law to accomplish just what a court of equity ought to do in a similar case, upon principles of common justice.

Will any moralist pretend to justify either man or woman in violating a bona fide contract of sale, by reclaiming property fairly sold, for which they have received the full value? Is it less unjust, because the evidence of sale is imperfect? If not, then away with the pretence that the Legislature of Ohio undertook to divest a vested right, and adopt the sound common sense of the Supreme Court of Pennsylvania,- by holding it an abuse of terms to consider that “ a vested right” which, in sober truth, is but an unjust claim — of a right to do wrong — a privilege of acting in a way that does violence to conscience. I apprehend that the framers of our Constitution, when preparing that instrument, had higher, nobler objects in view, than the creation *of a shield to secure to the dishonest the fruits of iniquity ; [376 and, while life lasts, I shall ever reluctantly, and only when forced by authority, employ it for such a purpose. But the legislation of 1835 does not stand alone in Ohio. The statute of 1810, for the relief of occupying claimants, was retrospective. It gave the value of improvements made prior to its passage, to the occupant, and entitled him to a judgment against the person evicting him. This law has been uniformly sustained in Ohio ; Lessee of Hunt v. McMahan, 5 Ohio, 133, and in the Supreme Court of the United States. Bank of Hamilton v. Lessee of Dunlevy, 2 Peters, 492.

In January, 1837, an act was passed giving validity to certain deeds-acknowledged before the Mayor of Cincinnati, an officer supposed not to be authorized to take such acknowledgments, between the 10th of January, 1815, and the 5th of February, 1819. I have never heard that the constitutionality of that act was seriously questioned. This court has treated it as valid in cases upon the circuit; yet its whole effect was retrospective, and it divested the bona fide grantors of the vested right to act in bad faith, to the same extent as does the act under consideration. Indeed, analogous cases are to be found every where. Scarce a statute or book of reports can be opened without disclosing them. Foster v. Essex Bank, 16 Mass. 245, and the cases there cited.


author: Read, Judge.

text:
    *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.


text:
    Samuel McCord and F. E. Hunt v. Christian Iker.
    A court of equity will not interfere to abate a private nuisance, unless the' person seeking its aid has established his rights at law.
    Equity will not interfere when the damages are of a trifling or merely nominal character ; and the fact that the damages given in a suit at law, are-too small to carry costs, is not sufficient ground for equitable interference.
    This is a Bill in Chancery, to abate a private nuisance, from Champaign county.
    *The complainants allege that they are the owners of a tract [388 of land upon which are two bodies of water, called Big and Little Lakes, through which flows a stream called Musquito Creek ; that on said creek, one mile and a quarter from the lands of complainants, the defendant has erected a milldam, and a saw and gristmill; that, by the erection of said milldam, the waters are flowed back upon the lands • of the complainants; that complainants have, by two suits at least, established their rights at law ; hut that the courts of law furnish no - adequate relief, and, therefore, the interposition of the extraordinary powers of a court of chancery are invoked. The prayer of the bill is for a perpetual injunction, and a decree that said milldam may be-pulled down and abated,
    John W. Andrews, for complainants.
    Mason and Tarbert, for defendant.
   Read, Judge.

The ground upon which the interference of a court of equity is invoked, is, that the mischief to complainants’ property is irreparable, and that actions at law furnish no adequate relief.

Whilst this is an admitted ground of equity jurisdiction, courts of chancery will carefully abstain from interference, where the injury will support an action at law, unless the party seeking such aid brings himself within the clearest principle of equitable relief. But if it be necessary to prevent a permanent injury to property, or its entire ruin, from the erection and continuance of a nuisance, and the law can not prevent the evil, equity will interfere, although the property itself may be of small value.

But, in cases of this sort, equity will not interfere until the right and the facts have been established, beyond doubt, at law.

In the ease now under consideration the injury, if any, is trifling. The complainants have prosecuted nine suits at law. Two verdicts 389] have been recovered in their favor, on appeal to *the Supreme Court; the one for $2.50, the other for one cent. Since then the complainants have sold their right to the land, except from five to seven acres, in different parcels. The complainants reserved, at the time of sale, the right to raise the water in the lakes to high water mark. ’They do not own any land now flooded by defendant’s dam, unless it may be some portion of the five or seven acres not parted with. To what extent their land may be injured, or whether at all, is matter of doubt. They have reserved the right to keep the water at highwater mark merely, and if the water remains at that point it may be well asked, what injury do the complainants sustain ? It may be inquired, too, whether the five or seven acres that, it is contended, were not conveyed by the complainants, is flooded at all by the dam of defendant ? It may then be well supposed that the complainants are suffering no injury from the dam of defendant, and are, therefore, not entitled to the relief sought.

Even when the complainants owned the whole land, some of the witnesses swear that no injury was sustained ; and the whole testimony, and the trials at law, prove that the injury, if any, was merely nominal, or scarcely above it.

In the cases of Cooper v. Hall, 5 Ohio, 322, the court decide that, in ease of water flowed back in the bed of a stream, no action lies unless some damage be sustained.

In this case the water is flowed over a few acres of low, swampy, wet prairie, of little or no value.

A court of equity would hardly be warranted in interfering to the destruction of a mill, in a case where the damages sustained by flowage wore barely nominal, but would leave the parties to their remedies at law. Nor would it be warranted in such case, to found jurisdiction upon the fact, that the injury was too trifling to carry costs in an action at law. But where the nuisance is of such a character as to occasion a personal inconvenience or annoyance, it would present a totally different case. But equity has no respect for a litigious spirit which seeks the injury of another without benefit to itself. Equity will not controvert the policy of the law, and found its jurisdiction *upon the fact, merely, that the law so far discourages trifling [390 litigation as to give no costs. We can not say in such case that the remedy is not equal to the injury. Where the injury complained of is irreparable, going to the ruin or destruction of the property, equity will interfere. We wish to lay down no rule which will at all interfere with this wholesome and necessary principle, but we must say that the present case does not warrant its exercise.

This mill was erected before complainants acquired any interest in the land; the damages at farthest are of a very trifling character, if not merely nominal; and a majority of all the verdicts, taking the trials in both courts, find for the defendant. And since the complainants have parted with the land, except as to a small parcel, and reserving only the right to keep the water up to highwater mark upon that which they have sold, two verdicts have been rendered against them in the court of Common Pleas.

Bill dismissed at complainants’ costs.