source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    *Margaret Ruffner v. Bernard McLenan and others. Rhoda Phillips v. David T. Disney. Rachel Meddock v. William Tift. Parmelia Vattier v. Gerard R. Chesseldine.
    By the act of February 12, 1805, the certificate of a magistrate taking the acknowledgment of a deed by a married woman is good, though it only certify the acknowledgment.
    The act does not require that the certificate should show a separate examination, that the contents of the deed were made known, etc., but the court will presume the officer taking the acknowledgment did his duty.
    These four cases in chancery were reserved in Hamilton county.'

      They are all of the same character, being petitions for dower. The defense in each case is the same, to wit: that the respectivo petitioners are barred of their right of dower, in consequence of having united with their husbands in deeds convoying the premises in which dower is demanded. There is no controversy but that such deeds were executed, but it is claimed by the petitioners that the acknowledgments are informal, and therefore that the deeds can not operate to bar their claims. The cases being similar in their character, it was not deemed necessary by the court to report them separately.
    Henderson, Goodman & Colton, for complainant Ruffner.
    Frazer & Brown, for complainant Phillips.
    Spencer & Corwine and William M. Corry, for complainant Vattier.
    *W Worthington, for defendants.
   Hitchcock, J.

These cases are of some considerable importance to the parties immediately interested, but of still more importance to the public, as belonging to a class of cases with which, within a few years past, the docket of the court of common pleas, as well as of the Supreme Court, has been crowded. They are important, too, as presenting questions upon which, as is well known, the members of this court have differed in opinion, and which have been at different times differently decided. And further, upon the final decision of these questions depends the title to many millions in value, of real property, within this state.

It is to be observed that these complainants claim dower in premises for the conveyance of which they united with their husbands while living, in the execution of deeds, thereby granting or releasing all rights or claim of dower in the premises so conveyed. There is no complaint that any false or fraudulent representations were made to induco them to sign these deeds; no pretense that it was done under the influence of fear, threats, or coercion; no charge but that it was done fairly and voluntarily. But it is claimed that the officers who took the acknowledgment of these deeds, have not made the proper certificates, and therefore that these women are not bound or precluded by their own act. They did all they could do to divest themselves of their contingent interest. They executed deeds according to the forms of law; they appeared before the proper magistrate to acknowledge the execution, and did acknowledge the execution of these deeds. Their intention manifestly and undoubtedly was to divest themselves of all interest in the premises conveyed, but through the ignorance and inadvertence of the officer, as it is claimed, this intention is defeated. Such is the claim, and upon such a privilege as this, these petitioners como into this court to claim dower.

Under such circumstances it is a question of grave importance, how far a court should bo influenced by technical Objections to a certificate of acknowledgment. We are bound by the law, and must enforce it, regardless of consequences. The law upon the subject of the execution and acknowledgment of deeds in this state has been, from the date of the ordinance of 1787, regulated by positive enactment. In giving a construction to those several enactments, it is-the duty of the court to give such construction, so far as it can be done, as will consist with the ends of justice. .

Wo suppose that the principles involved in these cases are settled in the case of Chesnut v. Shane’s Lessee, decided at the present term. In that case wo felt ourselves compelled to overrule a number of cases heretofore decided by this court, and which are specifically referred to. After the decision of the case above referred to, it miifht bo doomed unnecessary to report the cases now under consideration. But considering that the questions involved are important, considering that they have caused much agitation not only with the bar, but with the people of the state, wo have thought it advisable to make public the reasons which have induced us to come to the conclusions at which we have arrived.

Before entering upon an examination of these cases, however, it seems to mo proper to refer to the legislation of the territory and of the slate, upon the subject of dower, and of the execution and acknowledgment of deeds.

The first law upon the subject of dower to which I shall refer, is the ordinance of July 13, 1787, “for the government of the territory northwest of the river Ohio.” This ordinance has ever been considered as the organic law of the territory northwest of the Ohio, as much so as is the constitution of a state the organic-law of that slate. In the second paragraph it is provided, “that the estates of both resident and non-resident proprietors in said territory, dying intestate, shall descend to and be distributed among their children, and the descendants of a deceased child,-in equal parts; the descendants of a deceased child or grandchild, to take the share of their deceased parent, in equal parts, among *them; and where there shall be no descendants or children, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate, shall have, in equal parts, among them, their deceased parent’s share; and there shall in no case be a distinction between kinsmen of the whole and half-blood; saving in all cases to the widow of the intest,ate, her third part of the real estate for life, and one-third part of the personal estate; and this law relative to descent and dower shall remain in full force until altered by the legislature of the district.” Such was the law upon the subject of.dower, as prescribed .in the organic law of the territory, nor -was this law changed during the existence of the territorial government. By the terms of this law, of what was a widow to be endowed? Unquestionably, as it seems to me, of the real estate of which her husband died seized, and nothing more. The reasons for this opinion, are fully stated in the case of Allen v. McCoy, 8 Ohio. 470-472.

In the case of Betts v. Wise and others, 11 Ohio, 217, it is admitted by the court, that such is the proper construction of the ordinance, but it is insisted that there was a common-law right of dower, by which this provision of the ordinance must be controlled, or in accordance with which it should be construed. Now I am not about to controvert the fact, that in countries where the common law prevails, there is a recognition of the right of a widow to have dower, in some shape, in the estate of her husband. But this common-law right, like any other principle of the common law, may be changed by positive legislative enactment. In the State of Ohio, dower has never been claimed as a common-law right, unless under the ordinance. . It has ever been recognized and regulated by statute.

In order to justify a court in appealing to the principles of common law, in giving a construction to a statute, those principles should have previously prevailed in the country for which the statute is enacted. Now what was the situation of .the territory northwest of the Ohio, at the time of the ^enactment of the ordinance of 1787, and what were the laws by which the people of the territory were governed ? Almost the entire territory was a wilderness, inhabited by Indian tribes, with the exception of some few tracts of land in the neighborhood of Detroit, Yincennes, and some other places, which had been ceded by the Indians to tho French. The territory, it is true, was within the limits of the United States as defined by the treaty with Great Britain of 1783, but it had been claimed by different states of the Union, and these claims had not been relinquished until within a short period of the time when the ordinance of 1787 was adopted. It may be assumed as a fact, that within the territory now constituting the State of Ohio, there was not a white man at tho date of the ordinance, subject to the jurisdiction of the United States. There might have been some few Indian traders, and were undoubtedly some whites who had been made captives by the Indians, and who had been adopted into, and had become members of their different tribes. It was not until the treaty of Greenville, in 1796, that the Indian title to any of the land within the territory was ceded to the United States.

Under such circumstances, it is not too much to say, that at or previous to the time of the adoption of the ordinance of 1787, the common law was not the law of tho Northwestern Territory. It did not operate upon the Indians. They were governed by their own peculiar laws. It did not operate upon the French inhabitants. Few as they were, they never recognized its binding force. And there were none of the “Teutonic stock,” upon whom it could operate.

Such was the situation, when Congress, having it in contemplation that this country would soon be settled by a different race, adopted the ordinance for the government of those who' should thereafter become inhabitants of tho territory. In this ordinance they prescribed the rule as to dower, and this rule, as before remarked, was not changed during the existence of the territorial government.

For these reasons, it seems to me that the court were mistaken *in holding, as was held in the case of Betts v. Wise, that under the ordinance of 1787, a widow was dowable of all the lands of which her husband was seized during the coverture. This I state, however, as my own opinion, not as the opinion of the court.

On January 19, 1804, and after the organization of the state government, the general assembly passed “an act regulating the right of dower.” Chase’s Stat. 395. By section 1 of this act it is provided, “That the widow shall be entitled, during her life, to the use of one-third part of all the real property that her husband was seized of during coverture, unless she shall have joined with her Misbandin the conveyance.”

On February 12, 1805, the general assembly passed another law upon the same subject, in section 1 of which it is enacted, “ That the widow of any person dying intestate, or. otherwise, shall be endowed of the full and one equal third part of all the lands, tenements, or other real estate, of which her husband was seized, as an estate of inheritance, at any time during the coverture, to which she shall not have relinquished her right of dower, by deed duly executed and acknowledged; and she shall, in like manner, be endowed of one-third part of all the right, title, or interest, that her husband, at the time of his decease, had in any lands or tenements, held by bond, article, lease, or other evidence of claim,” etc. Chase’s Stat. 472.

It will be seen that this latter statute makes a distinction between legal and equitable estates, which distinction was not made in the former. By this last act, the widow is entitled to dower, in any estate of inheritance of which her husband was seized during the coverture, while she is to bo endowed in no equitable interost except in such of which he may die seized. By the former act she was barred of her dower, if she had “joined with her husband in the conveyance ” of the premises ; by the latter she is not barred, unless she had relinquished her dower, “by deed duly executed and acknowledged.”

*The next act to which I shall refer is the act of January 26, 1824, entitled “an act to regulate dower.” Chase’s Stat. 1314. This act is not materially different from that of 1805, except that there is no provision that a widow shall be barred of her dower by having united with her husband in the execution of a deed conveying the premises. The reason for this exception I suppose to be that a similar provision is incorporated in the respective laws prescribing the mode of executing and acknowledging deeds. This law of 1824 still remains in force.

As under the laws of 1804 and 1805, a widow was barred of dower, provided she had joined with her’husband in the execution and acknowledgment of a deed conveying the premises; and as the same principle is contained in the present law for the execution and acknowledgment of deeds, it becomes necessary to examine these laws. And here it may be proper to state that the only controversy which has ever arisen upon this subject is as to the form of the certificate of acknowledgment. It is therefore to the requisition of the law upon this particular subject that I shall principally direct my attention.

The first law in force in the territory, relative to the conveyance of land, is the ordinance of 1787. This provided that deeds should be signed, sealed, and delivered by the grantor, and attested by two witnesses; provided the same should be acknowledged, or the execution proved and recorded, “within one jmar after proper magistrates, courts, and registers shall be appointed for that purpose.”

The ordinance did not prescribe the manner in which husband- and wife should convey an estate in which she had an interest. This was first done by an act adopted by the governor and judges from the Pennsylvania statutes, and published on January 26, 1795. Chase’s Stat. 186.

This act authorizes the husband and wife, when desirous to dispose of or convey the estate of the wife, or her right in any lands, tenements, or hereditaments, she being twenty-one years of age and more, to execute a deed conveying the same, *and requires them, “after such execution, to appear before one of the judges of the general court, or before any justice of the court of common pleas of and for the county where such lands, tenements, or hereditaments shall lie, and acknowledge said deed or conveyance; which judge of the general court, or justice of the court of common pleas, shall and he 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 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, and as her act and deed, deliver the said deed or conveyance, without any coercion or compulsion of-her said husband, every such deed or conveyance shall be and is hereby declared to be good and valid in law to all intents and purposes, as if the said wife bad been sole, and not covert, at the time of such sealing and delivery—any law, usage, or custom to the contrary in any wise notwithstanding..”

Section 2 then provides “that the judge or justice taking such acknowledgment shall, under his hand and seal, certify the same upon the back of the deed or conveyance.”

Now, it will be seen that this act requires the judge or justice to take the acknowledgment of a deed or conveyance of husband and wife, and to certify 11such, acknowledgment ” upon the back of the instrument. Tho form of the certificate is not given. The duty of the magistrate in taking this acknowledgment is preseribed. He is required to examine tho wife separate and apart from her husband; he is required to read or otherwise make known to her the contents of the deed or conveyance, and if, upon suph separate examination, “sho shall declare,” etc., such deed is declared to be good and valid in law. But it is not expressly provided that the officer in his certificate shall state that he made such separate examination, or that he read or made known the contents of the deed or conveyance. It is expressly made his *duty to perform these acts, but it is not expressly made bis duty to certify that ho performed them. All he is required to certify is the acknowledgment.

This act of 1795 was repealed by an act of the general assembly of Ohio, of February 12, 1805, and an act was then passed entitled “an act providing for the execution and acknowledgment of deeds.” Chase’s Stat. 484. Section 2 of this act is almost an exact transcript of sections 1 and 2 of the act of 1795. It differs only in this respect, that the acknowledgment required may be taken before a judge of the Supreme Court, a judge of the court of common pleas, or a justice of tho peace.

Tho act of 1805 was repealed by an act upon the same subject, passed January 30, 1818. Section 1 of this act prescribes the manner in which deeds for the conveyance of the lands of a man or unmarried woman shall be executed and acknowledged.

Section 2 is as follows: “When a husband and wife, she being eighteen years or upward, shall, within this state, execute any deed, mortgage, or other instrument for the conveyance or incumbrance of the estate of tho wife, or her right of dower in any lands, tenements, or hereditaments whatsoever, such deed, mortgage, or other instrument of writing, shall be signed and sealed by tho husband and wife, and the signing and sealing thereof bo acknowledged by them in the presence of two subscribing witnesses, who shall attest tho acknowledgment of such signing and sealing, and also be acknowledged before a judge of the 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 said husband, and shall read or otherwise make known to her the contents of said deed, mortgage, or other instrument of writing, and if, upon such examination, she shall declare that she voluntarily and of her own free will and accord, without any fear or coercion of her husband, did, and now doth, acknowledge tho signing and sealing thereof, the said judge or justice shall oertify the *same, together with the acknowledgment of the husband, on the same sheet, upon which such deed, mortgage, or other instrument shall be printed or written, subscribing his name and affixing his seal to said certificate,” and deeds so executed are declared to be good and valid in law.

The phraseology of this section is somewhat different from that of tho former laws cited. But still there is no express requisition that the magistrate shall certify that he examined tho wife separate and apai't from her husband, nor that he read or made known the contents of tho deed or conveyance to her. It would seem to bo necessary, however, that he should certify that she “declared that she voluntarily and of her own free will and accord, without any fear or coercion of her husband,” acknowledged the signing and sealing of tho instrument. He is not expressly required to certify as to any acts or declarations of himself, but merely as to the declarations of the woman.

Section 2 of the act of February 24, 1820, providing for the proof and acknowledgment of deeds, is an exact transcript of section 2 of the act of 1818, before cited. Chase’s Stat. 1139.

By these several acts, a married woman is made capable of conveying real estate by joining with her husband in the execution of a deed, and if such deed is executed according to the forms of law, it must be subjected to the same rules of construction as would be a deed executed by a man or a feme sole. To make such deed available an acknowledgment before some proper officer was indispensable, and a certificate of such acknowledgment must be attached to the deed. But the form of this certificate was not prescribed, nor was it expressly prescribed that it should contain anything but the simple acknowledgment. This defect, if defect it may be called, is remedied by the act of February 22, 1831, in which it is prescribed that “such officer,” that is, the officer taking the acknowledgment, “ shall certify such examination and declaration of the wife, together with the acknowledgment as aforesaid, on snch deed, mortgage, or Mother instrument of writing; and subscribe his name thereto.” Chase’-s Stat. 1843.

Under these laws, it would no doubt have been proper for the officer taking the acknowledgment of a deed executed by husband and wife, to have certified that he examined the wife separate and apart from her husband, that he read or otherwise made known to her the contents of the deed or conveyance, and that she acknowledged that she signed, sealed, and delivered as her deed, the same voluntarily, of her own free will and accord, without the • fear of coercion of her husband, and that she was still satisfied herewith. But was this indispensably necessary? If it was, then I apprehend that few deeds of this character can be found which were executed previous to the act of 1831, by which any estate or interest of the wife was conveyed. As a matter of fact, we know that this form of certifying was rarely, if ever adopted. Nor was there any uniform mode of certifying adopted. In the cases now under consideration, we have no less than eight or ten deeds before us, and in no two of them is the certificate of acknowledgment the same. Nor is it strange that there should have been this diversity, when we consider the circumstances of the case. It must be remembered that at the time of the' adoption of the ordinance of 1787, the territory now constituting the State of Ohio was a wilderness, destitute of any population, except of Indian tribes. Shortly-after this time, settlements commenced in the Ohio Company’s purchase, and in Symmes’ purchase. It was not, however, until after the treaty of Greenville, in 1795, that there was much increase of population. From that period, emigration increased, and settlements were commenced in other parts of the territory. The emigrants came from every state in the Union, as well as from different parts of Europe. In the transaction of business, a population thus brought together could not but bo influenced more or less by the habits and laws of the countries from which they emigrated. Those who were appointed or elected magistrates, and whose duty it was to take the acknowledgment *of deeds, would, in certifying the same, be more likely to be controlled by the forms adopted in the states from whence they came, than by the particular law under which they were called to act. And such was the fact; almost every variety of certificate was adopted. In most cases, it was certified that the wife was examined separate and apart from her husband; in very few thát the deed was read or its contents made known to her. In some cases it was certified that she voluntarily acknowledged the deed or conveyance to have been executed of her own free will and accord, without the fear or coercion of her husband; in others, that she acknowledged the instrument to be her voluntary act and deed, and in others that the instrument was acknowledged according to law. And all these different forms of certifying were at the time supposed to be sufficient, and in accordance with the law, as construed by those whose duty it was to carry it into execution.

In this state of things, land passed from hand to hand with as much facility as goods and chattels. In truth, in some parts of the state the former was considered of less value than the latter, and a judgment debtor felt himself relieved, if the officer holding an execution, would pass by his personal property, and levy the same on his lands. In the-Ohio Company’s purchase in the military districts, and in the Connecticut Western Eeserve, lands in the hands of the original proprietors were. considered as more articles of merchandise or traffic.

No question was ever made in this court within my recollection, as to the validity of these certificates of acknowledgment, until the presentation of the case of Brown v. Parran, at the December term, 1827, and which is reported in 3 Ohio, 140. This case was fully and ably argued by counsel and carefully considered by the court. The propriety of sustaining conveyances where the certificate of acknowledgment was informal was fully discussed, and the court came to the conclusion that a certificate was sufficient if it contained a substantial enumeration of the acts required *by the statutes, though the words be not followed. And further, that an inveterate practice for a series of years should not be departed from. In other words, that in the examination of such certificates, a liberal, not a strict construction should be given to the law requiring them. In coming to this conclusion, there can be no doubt the court were much influenced ■by the practice which had so long prevailed, and it was right and proper it should be so.

In that case the judge, in giving the opinion of the court, says : “ It must appear expressly or by irresistible inference, from the '.language of the certificate, that the wife was acquainted with the nature of the deed, and that she was examined separate and apart from her husband.” No doubt it is well that this should appear, but the ease of Brown v. Farran did not present a point of this kind necessary to be decided, nor was any question made as to this part of the acknowledgment. The certificate was in these words: “State of Ohio, Hamilton county, ss. Before me, the undersigned, a justice of the peace within and for said county, personally appeared David Brown and Catherine Brown, his wife, who having been made acquainted with the contents, and being examined separate and apart, the wife from the husband, acknowledged the above indenture to be their voluntary act and deed, for the uses and purposes therein named. Before me,” etc.

The objections taken to this acknowledgment were, that it did not appear that the petitioner did either sign or seal the deed; that it did not appear that she acknowledged the signing and sealing before the witnesses or before the justice, and that it did not appear that she acted without the fear or coercion of her husband.

But the court held that the certificate was sufficient. The wife acknowledged the instrument to be her voluntary act and deed. If her deed, then she must have signed and sealed it, for without her signature and seal it could not have been her deed. If it was her voluntary deed, she must have executed it without the fear or coercion of her husband.

*1 assented to the principles settled in this case, and think they should never have been departed from. Any other decision would have shaken the titles to many millions of property, which had been acquired by the then present holders by fair and bona fide purchase. A contrary decision, it is true, might have enabled many widows to reclaim property which had been, by their consent, sold and conveyed for an ample consideration, or it might have enabled them to enforce claims for dower in premises, for the conveyance of which they had joined with their husbands, and done all that on their part could be done to make such conveyance effective. And if such conveyances are not held to bo effective, it is for the s®le reason that an officer whose duty it was to take an acknowledgment of the conveyance has omitted some technical formality in reducing the certificate of acknowledgment to writing.

Another reason why I assented-to the principle of this decision, and why I am still willing to adhere to those principles, is, that I am unwilling to adopt any rule of construction to a statute, or to recognize any principle as law which will encourage any portion of the community, whether male or female, in fraud or dishonesty.

It is a common saying that dower, as well as life and liberty, is a favorite of the' common law. This is true; and where a woman is justly and equitably entitled to dower, where she has not joined with her husband in the conveyance of his lands, or where she has been induced to join in such conveyance by force, fraud, or coercion, no member of this or any other court can be more ready than I shall be to give her relief. But where she has voluntarily joined in such conveyance, the case is different. While the common law favors dower, it abhoi’s fraud and dishonesty; and whether it be honest for a woman who has voluntarily joined her husband in the execution of a deed conveying his land, thereby relinquishing, or attempting to relinquish, her right of dower, to set up a claim to dower after his death *in the same land, must be left to every one to decide for him or herself.

After the decision in Brown v. Farran, no other case came before the court in which the validity of a certificate of acknowledgment was called in question, until the December term, 1834, when the case of Connell v. Connell was decided. 6 Ohio, 353. The decision of this case induced -the passage of what has been called the curative law of March 9, 1835. Swan’s Stat. 269. Of this case, and those following it, I shall say nothing at present, the same having been fully commented upon in the ease of Chesnut v. Shane’s Lessee, before referred to, and decided at the present term.

Having made these remarks upon the general subject, I will now proceed to the examination of the particular, cases now before the court for consideration.

The first is the case of Margaret Ruffner v. Bernard McLenan et al.

The deed, by which Joseph Euffner and Margaret his wife, the now complainant, conveyed the premises in which dower is demanded, bears dató July 19, 1815, more than thirty years since. This deed was executed under the law of 1805. It was acknowledged on the 24th day of August, of the same year in which it bears date. And the form of the certificate of acknowledgment is as follows:

“Tho State of Ohio, Hamilton county. Before me, the under signed, a justice of the peace, within and for said county, came personally Joseph Ruffner and Margaret Ruffner, wife of said Joseph Ruffner, the above-named grantors, who, being examined separately, acknowledged the above deed of conveyance to be their voluntary act and deed, for the uses and purposes therein mentioned, as the law directs. In testimony whereof,” etc.

This certificate is in most respects like the ono before the court in the case of Brown v. Farran, 3 Ohio, 152; It shows a separate examination, and a voluntary acknowledgment of the deed. It does not show, however, that the *wife • was made aequainted with the contents of the deed, but does show that the acknowledgment was taken “as the law directs.” So far as respects the fact that the certificate does not contain a statement that the deed was read and its contents made known, it has been shown by an examination of tho statutes, that it was not expressly made the duty of the officer to certify any such fact, and in the case of Chesnut v. Shane’s Lessee, it was held that it was not necessary. But had it been necessar}1', the defect is cured by the law of 1835. It seems to the court this comes within tho principles decided in the case of Brown v. Farran, and the bill is therefore dismissed.

The second case in order is the case of Rhoda Phillips v. David T. Disney.

The Joill is in the usual form of a petition for dower, which is claimed in the premises therein named. The answer sets up, in bar, a deed from complainant and her husband, Jabish Phillips, who died in 1837, dated March 3, 1798, by which she released her dower. This deed was not acknowledged until August 12, 1811, and tho certificate is as follows: “Came Jabish Phillips, and Rhoda Phillips his wife, the within grantors, and acknowledged tho within conveyance to be their voluntary act and deed, executed for tho uses and purposes therein contained, agreeably tó the statute in sueh cases made and, provided.”

The first ground of defense assumed by counsel for defendant is that, by tho ordinance of 1787, a widow was entitled to dower only in the lands of which - the husband died seized, and that the land in which dower is now demanded was conveyed in 1798, before any change had been made in tho law as prescribed in the ordinance. Subsequent to the dower acts of 1804 and 1805, by. which provision is made that the wife shall be endowed of all the lands of which the husband was seized during the coverture, it is insisted that Jabish Phillips was not seized of the lands in controversy.

There can bo no doubt, I apprehend, but that, by the deed of 1798, all the interest of Jabish Phillips became vested in his *grantco, from the delivery of the deed. And it is fair to presume that this deed was delivered on the day of its date. By the law then in force, no acknowledgment was necessary to the validity of a deed made by a man or unmarried woman. Such acknowledgment constituted no part of the deed, although it was necessary in order that the instrument might be recorded. It was not until the enactment of the law of 1818, that the acknowledgment was made necessary to the validity of such deed. In order to bind a married woman, however, an acknowledgment was necessary from 1798.

Unless, then, under the ordinance of 1787, a widow was entitled to dower in all the lands of which her husband might have been seized during coverture, this ground of defense assumed by defendants’ counsel is conclusive of the case. I have already ox-pressed my own opinion upon the subject, and it is unnecessary to say more. In the case of Betts v. Wise, 11 Ohio, 219, this court held that even under the ordinance, a widow was entitled to be endowed as at common law. Not because such was the provision of that instrument, but because there was something peculiar to the Teutonic race on the subject of dower. It is admitted by the court, however, that it was within the legitimate province of the law-making power to change the law of dower as well as the law upon any other subject. I have already assigned the reasons why, in my opinion, the court mistook the law in this decision. The ordinance of 1787 was enacted, not so much for a people then inhabiting the territory over which it was to operate, as for the government of those who might thereafter become inhabitants of that territory. It contained a complete system upon the subject of descents and the distribution of real and personal estate, saving to the widow of a decedent one-third part of the real or personal estate descended—a system, however, which might be changed by subsequent local legislation. Until changed, it was the law of the territory. And being the law of the territory, all who should subsequently become ^residents of the territory, whether of the Teutonic or any other race, must be controlled by ik A majority of the court, however, are not disposed to controvert the law, as laid down in the case of Betts v. Wise.,

The next ground of defense assumed by counsel is, that by the law of 1824, “ regulating dower,” all laws upon the same subject are repealed without.any saving clause; and it is insisted that inasmuch as the premises in controversy were conveyed previous to the enactment of that law, there was no seizin in the husband, after the law of 1824, to which a right of dower could attach. There is certainly much ingenuity and great force in the argument submitted upon this point, but we are not prepared to say that the position can bo sustained. There can, as it seems to me, be no doubt that the general assembly have the power to change the law of dowei’, and so to change it that a widow may be endowed of one-half or more of the real estate of which her husband shall be seized after the change and during coverture, or that she may be endowed only of the estate of which he may die seized. And such law would be effective and operative in all cases, except such in which the dower right had become vested by the death of the husband previous to the enactment of the law. But the law of 1824, as has been already seen, made no change upon the subject of dower. It secured to the widow the same rights which were secured to her by the law of 1805. In this case, it was 'a mere re-enactment of the law .of 1805—a continuance of that law. The moment one ceased to operate, the other took effect. It was not the intention of the general assembly, by the repealing clause of the act of 1824, to change the rights of persons upon this subject. Although the repeal of a statute, inflicting pains, penalties, or forfeitures will operate to remit such pains, penalties, or forfeitures, incurred during the existence of the law, notwithstanding similar pains, penalties, or forfeitures are inflicted by the statute containing the repealing clause, still such is not the effect where-mere civil rights are concerned. Such was the decision of this court in the case *of Lessee of Mitchell v. Eyster, 7 Ohio, 257, pt. 1. We are satisfied that the law'was correctly settled in that case, and hold that if the complainant had an inchoate right of dower in the premises, under the statute of 1805, that right was not affected by the repeal of this statute by the law of 1824.

The next ground of defense assumed by defendants’ counsel is, that the complainant’s right of dower is barred by the deed executed in 1798 and acknowledged in 1811, and this presents the question as to the sufficiency of the certificate of acknowledgment. It is in these words : “ Came Jabish Phillips and Rhoda Phillips, his wife, the within grantors, and acknowledged the within conveyance to be their voluntarily act and deed, executed for'the uses and purposes therein contained, agreeably to the statute in such case made and provided.” This deed was executed in 1798 under the law of 1795. By its execution, the title of Phillips became vested in his grantee. The complainant joined with her husband in the execution, but still if she had any interest in the land, contingent or vested, that interest did not pass until the deed was acknowledged in 1811. This acknowledgment was under the law of 1805.

It is supposed to be defective, because it does not show that the wife was examined separate and apart from, her husband; that the contents were made known to her; that she signed and sealed the same voluntarily, without the fear or coercion of her husband. It has been already shown, by examination of the act of 1805, that the officer taking the acknowledgment, was not expressly required to certify any of these matters. All that the statute expressly required that he should certify, was the acknowledgment. But I will again recur to the statute. The manner of executing and acknowledging deeds by husband and wife is found in section 2 of the act “providing for the execution and acknowledgment of deeds,” passed January 12, 1805. Chase’s Stat. 484.

This section authorizes husband and wife, when inclined to dispose of her land, or any interest she may have therein, *to join in the execution of a deed conveying the same, and further authorizes them, “after such execution, to appear before a judge of the Supreme Court or court of common pleas, or justice of the peace, and acknowledge the same, which judge or justice of the peace is hereby required to take such acknowledgment; in doing whereof, he 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 of 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 a sole and not covert, at the timó 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.”

Now, it will not be denied that this statute'may bear the construction .contended for by complainant’s counsel, but it is not the necessary or natural construction. The first part of the section provides that the husband and wife shall apirear before a judge or justice of the peace, after the execution of a deed by them jointly, “and acknowledge the same,” and requires the judge or justice “to take such acknowledgment.” It then goes on to prescribe the duty to be performed by the officer taking the acknowledgment, and provides that if certain declarations are made by the wife, the deed or conveyance shall bo as available as if the woman had been sole and not covert. Next comes the provision as to the certificate, in these words: The judge or justice taking such acknowledgment shall, under his hand and seal, certify the same,” etc. The acknowledgment is to be certified, and if this is done, the statute is literally complied with. It may, at least, be presumed in favor of the officer, that he would not make such certificate until he had done *and performed all that the statute required of him to do and perform. And shall this court say that a certificate thus conformable to the statute, furnishes no evidence that the statute has been complied with ? It seems to me not.

It may be said, however, that in the case of Brown v. Farran, the court held it to be necessary that a bertificate should show a separate examination, and that the contents of the deed were made known to the wife. True, it was so stated by the judge in delivering the opinion of the court, but no question of the kind was then before the eourt for consideration. The principle settled in that case was, that nothing more was necessary in an acknowledgment than that it should substantially appear that the requisitions of the law had been complied with.

In the case before the court, and now under consideration, the officer taking the acknowledgment has certified that the same was done “agreeably to the statute in such case made and provided.” If so, all the requisitions of the law were complied with. There was a separate examination, the contents of the deed were mads known to the wife, and she made all the necessary declarations and acknowledgments. But it is claimed that the case of Meddock v. Williams, 12 Ohio, 377, is an authority to prove that an officer must certify specifically all the acts done, and that it will not be sufficient for him to certify in general terms that tho law has been complied with.

A majority of tho court, as now constituted, are not satisfied ■ with the decision in the case referred to, and the same has been overruled in the case of Chesnut v. Shane’s Lessee, before referred to. By our system an important trust is reposed in those officers who are authorized to take tho acknowledgment of deeds. Their duties are prescribed in the several statutes upon tho subject matter upon which they are called to act. But still no form is prescribed in which acknowledgments taken before them shall be Certified. It is to be presumed they are acquainted with tho law under which they act. It is to be presumed they will comply with *the requisitions of that law ; and when they certify that tho law has been complied with, that an acknowledgment has been made and taken in pursuance of it, it seems to a majority of the court that such certificate should be taken, as true, and held to be sufficient; hence we are induced to come to this conclusion in some degree, and perhaps in no small degree, by a knowledge of the fact that in early times, if not at later periods, this mode of certifying acknowledgments was very frequently adopted. And Such practice shows the contemporaneous construction put upon these statutes by those whose duty it was to carry them into execution.

After full and mature consideration, a majority of tho court are of opinion that the complainant, Rhoda Phillips, is barred of her dower by joining with her husband in the execution of the deed set up in the answer, bearing date March 23, 1798, and acknowledged on August 12, 1811.

The bill is therefore dismissed.

The next in order is the case of Rachel Meddock v. William Tift.

The bill in this case was filed in 1814, and by it dower is Claimed in the premises described in the bill by tho complainant, as the widow of Abijah Meddock, who died in 1837.

The defense set up in the answer is that the complainant, on July 10, 1812, joined with her husband in the execution of a deed by which the premises in which dower is claimed were conveyed, and by which deed she relinquished her right-of dower. This deed was acknowledged on July 15, 1812, and the certificate of acknowledgment is as follows : “ Came personally Abijah Med-dock and Rachel his wife, the within grantors, and the said Rachel being examined separate and apart from her husband, agreeably to the act in such case made and provided, acknowledged the above indenture to be their voluntary act.”

The only question in this .case is as to the sufficiency of this certificate. It is not, perhaps, quite as full as the one in *the case of Ruffner v. McLenan, but there is no material difference between the two. This complainant intended to release her right of dower, and we think she has effectually done it.

The bill is dismissed.

The last case now for consideration is the case of Parmelia Vattier v. Gerard R. Chesseldine.

The bill in this case was filed in 1843, and by it the complainant claims dower in the lot therein described, as the widow of Charles Vattier, who died in 1841.

The defense relied upon is, that on May 9, 1818, the complainant, together with her husband, executed a deed conveying the premises, by which deed she relinquished her right of dower. This deed was acknowledged on the day of the date of its execution, and the certificate of acknowledgment is in the following words: “Came personally, etc., Charles Vattier-and Parmelia Vattier, who, separate and apart, acknowledged the foregoing instrument to be their voluntary act.”

The certificate is certainly very informal, more so than is the certificate in either of the other cases now before us. But there can bo no doubt that this complainant intended to release her right of dower. This is manifest from the deed itself. And it was such a deed as she was by the statute authorized to make. After its execution, she went before a magistrate to acknowledge it. She did acknowledge it. She did all she could do to carry her intention into effect. And now shall the court hold that this intention was defeated on account of the informality of the certificate. That certificate shows satisfactorily to our minds that the husband and wife went together before the magistrate, and that the wife was examined separate and apart from her husband. We are bound to believe that the contents of the deed were made known to the wife. It was the duty of the magistrate so to make them known, and the presumption is that this *duty was performed. The law did not require that he should certify that he had so done.

We are further satisfied, from the certificate, that the complainant did acknowledge the deed to be her voluntary act. And if voluntary, then there was no compulsion, no coercion.

Under such circumstances we can not say that the intention of the complainant to release her dower shall be defeated by any informality in this certificate of the magistrate taking the acknowledgment.

The bill is therefore dismissed.

Read, J., dissented.


text:
    Robert Hill vs. Eben Henry.
    A promissory note for money, payable on demand, is due upon delivery.
    Under the limitation acts of Ohio, of 1824 and 1831, an acknowledgment of a debt and a promise to pay, after the same has been barred by the statute, does not revive the original cause of action.
    This is a Writ op Error to the Court of Common Pleas of Portage County.
    The facts in the original case are as follows:
    Eben Henry, on the 27th day of June, 1847, commenced an action of assumpsit in the Court of Common Pleas of Portage county, against Robert Hill, and on the 19th day of July following filed his declaration.
    The declaration contains a special count upon a promissory note, bearing date the 22d day of January, 1830, payable on demand, and the common counts.

      To this declaration the defendant pleaded, 1st, the general issue; 2d, that the cause of action did not accrue at any time within fifteen years prior to the commencement of the suit.
    Issue was joined upon the first plea, and to the second, defendant replied that the defendant “did, within fifteen years next before the commencement of this suit, undertake and promise to pay the plaintiff the amount due on the note in the first count of the plaintiff’s declaration mentioned, in manner and form,” &c., “ to wit, at Hiram in the county aforesaid, on the first day of March, in the year of our Lord one thousand eight hundred arid forty seven,” &c.
    At the July Term of the said Court of Common Pleas, 1848, the case was submitted to a jury, and a verdict was returned in favor of the plaintiff, upon which verdict judgment was entered.
    The defendant then ' tendered his bill of exceptions, which was allowed by the court, and is as follows:
    Be it remembered that this cause came up to be tried at the July Term, 1848, of the Court of Common Pleas of the county of Portage, and on said trial the plaintiff gave in evidence the note described in the first count of the declaration, and proved that in March, 1847, said note was presented to the defendant for payment, who then stated to the witness that the note was outlawed, that the debt was just, that he wished he was able to pay it, and that the next fall he would try to procure a horse and some carriage, go east and make payment on the note, and rested.
    The defendant offered no proof, and the testimony being closed, the defendant requested the Court to instruct the jury that if no acknowledgment of an existing liability on said note, or promise to pay the same, was made by the defendant until after, the period of fifteen years had-elapsed from the time the cause of action first accrued thereon, then an action on said note would be barred by the statute of limitations at the expiration of fifteen years after an action first accrued thereon; which instruction the Court refused to give, but charged the jury that an acknowledgment of an existing liability on said note, or promise to pay the same by the defendant, at any time after the period of fifteen years had elapsed from the time said note became would revive the same, and an action could be maintained thereon, at any time within fifteen years after such acknowledgment or promise, although such acknowledgment or promise was not made within fifteen years from the time such note became due, and an action first accrued thereon, and thereupon the defendant excepted, &c.
    To reverse the judgment so as aforesaid rendered this writ of error is presented by the plaintiff in error, who was defendant in the Court of Common Pleas.
    The errors asssigned are in substance, 1st, That the declaration is insufficient; 2d, That the replication to the plea of the statute of limitations is insufficient; 3d, That the Court refused to instruct the jury as requested; 4th, That the Court mistook the law in the instructions actually given to the jury; 5th, That judgment should have been given for the defendant, whereas it was rendered in favor of the plaintiff.

      Luther Day, for Plaintiff in Error.

      Bierce &f Paine, for Defendant.
   Hitchcock, J.

This case is submitted without argument, so that we have nothing but the record itself to indicate the points intended to be raised by counsel. It appears from the pleadings, as well as by the bill of exceptions, that the note upon which the action was based, bears date on the 22d of January, 1830, and suit for the recovery of the money was not commenced until June, 1847, more than seventeen years from the date of the note. The note, however, was payable on demand, and there is nothing to show that any demand was made until 1847, and it might have been intended to raise the question whether upon such an instrument any cause of action could accrue until demand be made. Upon this point, we are aware that there have been contradictory decisions, but in our opinion a right of action exists in the payee of such note, upon its delivery, and that from the time of delivery the statute of limitations commences to run. 'From the record before us, however, it does not seem that any question of this nature was agitated in the Court below. Although other errors are assigned, I suppose the question intended to be raised is, whether the Court of Common Pleas violated the principles of law in refusing to instruct the jury as requested by the plaintiff in error, and in the instructions actually given.

The plaintiff below, to support his action, gave in evidence the note declared on, bearing date 22d January, 1830, and proved that the same was presented to the defendant below for payment in March, 1847, who then stated “ that the note was outlawed, that the debt was just, that he wished he was able to pay the note, and that the next fall he would try to procure a horse and some carriage, go east, and make payment of the note.” This was all the evidence in the case. The defendant below, then requested the Court to instruct the jury that “ if no acknowledgment of an' existing liability on said note, or promise to pay the same, was made by the. defendant until after the fifteen years had elapsed from the time the cause of action first accrued thereon, then an action on said note would be barred by the statute of limitations, at the expiration of fifteen years after an action first accrued thereon.” This instruction the Court refused to give, but did instruct the jury “ That the acknowledgment of an existing liability on said note, or promise to pay the same by the defendant, at any time after the period of fifteen years had elapsed from the time said note became due, would revive the same, and an action could be maintained thereon, at any time within fifteen years after such acknowledgment or promise, although such acknowledgment or promise was not made within fifteen years from the time such note became due, and an action first accrued thereon.”

The question is not whether the acknowledgment of a subsisting indebtedness upon a note, already barred by the statute of limitations, and a promise to pay the same, constitutes a contract which can be enforced, for of this we suppose there can be no doubt. Although a note may be barred by a statute of limitations, still a moral obligation rests upon the maker to pay, and this moral obligation would constitute a sufficient consideration for a new promise. But the question is, whether such an acknowledgment and promise revives and resuscitates the note, so as to give it life and vigor for an additional period of fifteen years, from the date of the acknowledgment or promise.

We have no doubt that the law as declared by the Court of Common Pleas, in this case, is in accordance with the decisions of the Courts of England, in giving construction to their statute of limitation, and if is equally in accordance with the .decisions of the Courts of many of our sister States.' These decisions originated in the idea of the courts that statutes of limitation were based upon the presumption that the debt barL red had been paid. If, then, the debtor, after the bar had taken effect, should acknowledge the existence of the debt, or should promise to pay the same, the supposed reason of the statute ceased, and upon this ground the courts held, that the case was taken out of the. statute, or, in other words, that the statute did not operate upon it, and would not, until the period limited had transpired subsequent to the acknowledgment or promise. Under these circumstances, courts were not unfrequently called upon to determine what did, and what did not take á case out of the statute. , These decisions, are perhaps not inconsistent with justice, as it must be admitted that an action may be maintained upon such subsequent acknowledgment and promise. Such being the case, it may be thought immaterial whether the suit is commenced upon the note itself, and sustained upon proof of the subsequent promise, or whether it be commenced upon the subsequent promise. Under our statute, however, suits upon simple contracts are barred in six years, while actions upon promissory notes are barred in fifteen years. The promise to pay a note which is barred by the statute of limitations is a simple contract, at ’ least such was the fact in the case before the Court, and without this promise no suit could be maintained. This promise, as such simple contract, will be barred in six years from the time it was to have been performed. But if the English rule is adopted, this same promise will be binding upon the party making it for fifteen .years. Notwithstanding this, however, I should not be disposed to vary from this rule, unless a fair construction of our own statute of limitation requires it.

The act of 1831, for the limitation of actions, in its first section provides “ that actions upon the case, covenant and debt, founded upon a specialty, or any agreement, contract or promise in writing,” shall be brought within fifteen years after the cause of action accrued. The fifth section of the same act is as follows: “That in all actions founded upon contracts, either express or implied, where any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, within the time herein limited, such action may be commenced within the time herein before limited, after such payment, acknowledgment or promise.” Swan’s Stat. 555. In this section the law making power itself has undertaken to prescribe what acts shall have the effect to suspend the operation of the statute, or in other words, what acts shall operate to take a case out of the statute. One of these is an acknowledgment of the debt. Another is a promise to pay. But in order to have this effect, the General Assembly have said that the acknowledgment and the promise must be made within the time limited, that is, in the case of a promissory note within fifteen years after the cause of action accrued. It must be made before the original cause of action is barred. Such being the legislative declaration, can this Court with propriety say, that an acknowledgment and promise made after the cause of action was barred can have the same effect ? Had the Legislature been entirely silent upon the subject, we might, perhaps, have adopted the English rule. But that body having acted upon the subject, having declared what shall take a case out of the operation of statute, the Court cannot with propriety disregard this lation, and permit other matters to produce the same effect.

True, the act of 1831, was not in force at the time the cause of action accrued upon the note in the case now before the Court. That note was made and fell due in 1830, and is to be governed by the limitation act of 1824. In this latter act, however, there is a provision, producing a similar effect. It is as follows: in all actions arising from contract, when any part of the principal or interest shall have been paid, or a demand made therefor, within the time herein limited, such action may be commenced within the time heretofore limited, after such payment or demand.” Ch. St. 1403.

The same course of reasoning may be adopted with respect to this statute, as to that of 1831. The only difference in the two is, that the act of 1824 assigns only two causes which shall operate to take a case out of its provisions, while that of 1831 assigns further and different causes.

It may be thought that by giving this construction to the statutes, we overrule a dictum of the Court in the case of Sooks Adm’r v. Friends Adm'r, 9 Ohio Rep. 78. But it is not so. That was a case in Chancery, to recover the amount of a single bill which had been made and was payable in 1807, and which was said to have been lost. The bill was executed in Pennsylvania, where both parties, at the time, resided. Before the bill matured, Friend, without the knowledge of Sooks, removed to Ohio. In 1829, Sooks discovered the place of residence of Friend, came to Ohio and demanded payment. Friend admitted the justice of the claim and promised payment. One ground of defence was, that the claim was stale and barred by the statute of limitations. The Court held that the act of limitations of 1804 must govern the case and that under that act the claim was not barred. Having so decided, the Judge giving the opinion of the Court adds, “ but there is another reason why the statute of limitations does not bar this recovery. In 1829 Friend not only acknowledged the debt but promised to pay it.” This was proper in the case then under consideration. It was before a Court of Chancery, having jurisdiction of the subject and this subsequent acknowledgment and promise could well be inferred, had the original claim been barred, which it was not; and it must be remembered too, that the act then before the Court was the act of 1804, which is materially variant from those of 1824 and 1831.

Upon mature consideration we are of opinion that under the limitation laws of this State the acknowledgment and promise to pay a debt which is barred by the statute does not revive the original cause of action, but if a creditor would enforce collection, he must do it by suit on the subsequent promise. Such being the opinion of the Court, it follows that the Court of Common Pleas mistook the law in refusing the instructions requested by plaintiff in error, and also in the instructions actually given. The judgment is therefore reversed, and the case remanded for further proceedings. ■


author: Read, J.

text:
    Samuel F. McCracken vs. Joseph West and others.
    Overruling a demurrer without ajoinder is not error — a joinder may be filed inatanter on hearing in the Court below, and if exception be taken after judgment, it will be considered as filed.
    It is error to admit as evidence of handwriting, the mere opinion and belief of a witness, without his first stating his means of acquiring a knowledge of such hand writing.
    On cross-examination, a question asked of the witness by the defendant, as to what a third person told him, will not authorize the other party, upon a're-examination, to enquire what the third person in the same conversation said the defendant himself had told him — such evidence being hearsay.
    To prove the value of property at a given period, it is not competent to prove at what price the property sold subsequently at a public sale by Trustees, to whom it had been assigned in contemplation of insolvency.
    If it be sought to charge a person with fraud and deceit in representing- another,as worthy of credit, he may, for the purpose of repelling the imputation of fraud, prove what he has said he thought such person worth, prior to the time of making the statement charged to be false.
    If a person write aletter to another, desiring him to introduce the bearer to such merchants as he may desire, and describing him as a man of property, and the person having such letter do not deliver it to the person to whom it is directed, but use it to obtain credit elsewhere, the persons so giving the credit, cannot maintain an action for deceit, though the representations in the letter are untrue.

      This is a Writ op Error directed to the Court of Common Pleas of Fairfield County.
    The declaration in the original action is in Case. It avers that the plaintiffs below are Merchants in the city of New York, by the name, of West, Oliver & Co.
    That George Myers of Lancaster, Ohio, on the 2d day of November, 1842, was desirous of purchasing, in New York, a stock of goods partly on credit, and had employed one Z. C. McElroy to purchase said stock of goods for him as his agent, of which the defendant had notice.
    That the defendant, on said 2d day of November, 1842, at Lancaster aforesaid, for the purpose of enabling said Myers to effect his said purchase, partly on credit, in New York, wrote a letter to Wilson, Butler fy Baldwin, of New York, whereby he stated to said W. B. B., “ that said McElroy would leave Lancaster for New York the next day, to purchase a lot of goods for said Myers, and that said Myers’ means would enable him to pay one half or nearly so of his purchases in cash ; and the residue, from Myers’ present calculation, which he, the defendant, thought based upon a substantial foundation, he, Myers, promised to pay in less than six months.” That the defendant in and by said letter, for the purpose aforesaid, did then and there falsely, deceitfully and fraudulently assert, affirm and declare (“that he, the said defendant, considered the said George Myers worth from thirty to forty thousand dollars, and that he, the defendant would have every confidence in said Myers’ punctuality in meeting his engagements,” and in and by said letter informed said Wilson, Butler & Baldwin, “ that their influence in introducing said McElroy to such houses as he might desire, to procure the assortment he might require would be gratefully acknowledged by said Myers,” which said letter the defendant delivered to McElroy.
    That on the 16th November, 1842, at New York, said McElroy was introduced to the plaintiffs; and he, said McElroy, then and there requested them, the plaintiffs, to sell to said Myers goods, &c., upon credit; and that said McElroy then and there exhibited and showed to said plaintiffs the aforesaid letter of said defendant to induce them to sell said goods, &c., to said Myers, partly on credit.
    That the plaintiffs were then and there unacquainted with the character and circumstances of said Myers,, but confiding and giving credit to said assertions of the defendant, contained in said letter, and believing the same to be true, they 'sold to said Myers a large quantity of goods to the value of $700, one half for cash, and the residue upon a credit of six months. Whereas said Myers, at the time said letter was written by the defendant, was not worth thirty to forty thousand dollars, but was and had been for a long time in failing circumstances, and the defendant well knew the same, by reason of which deceitful and fraudulent representation in said letter contained, the plaintiffs have been deceived and imposed upon, and have lost the balance due on said goods and merchandize, and the value thereof, to the damage of the plaintiffs $ 500, &c.'

    The declaration was filed July 7th, 1843, and on the 26th of July, 1843, the defendant filed a general demurrer thereto.

      No joinder in demurrer appears to have been filed, but the transcript of the proceedings in the case shows that the case came on to be heard upon the demurrer of the defendant to the declaration, and was argued by counsel,, upon the consideration whereof the court overruled said demurrer with costs, and continued the case.
    On the 18th of July, 1845, the defendant put in the plea of the general issue, and at the June Term, 1848, the trial of the issue was submitted to a jury.
    On the trial before the jury the plaintiffs offered in evidence the deposition of Zenas C. McElroy, and the defendant objected to the reading in evidence to the jury the seventh interrogatory, and the answer thereto, contained in the deposition, viz:

      “In whose hand writing was the letter, and was the proper signature or hand writing of McCracken affixed to it ? ”
    Answer.— “ I have no' doubt that it was McCracken’s writing and signature.”
    The plaintiff also offered in evidence to the jury the depositions of Grove P. Hinman and Lewis O. Williams, to the reading of which depositions, and particularly the copy of the letter referred to in the deposition of Hinman as a copy of the letter of the defendant referred to in the declaration, the defendant objected, as well as to the giving of any secondary evidence of the contents of said letter, without further proof of the loss of the original.
    The Court overruled said several objections of the defendant, above mentioned, and allowed the evidence so objected to, to be given to the jury. To which ruling of the Court the defendant excepted, being the first bill of exceptions filed by the defendant.
    The plaintiff then examined John A. Collins as a witness in chief, and gave evidence by him tending to prove that George Myers was in failing circumstances shortly before the date of the letter of the defendant, set forth in the declaration, and the defendant, on cross-examination of said witness, inqured of him whether he had not indorsed for said Myers in October, 1842, for several thousand dollars, without taking any security against loss ? In answer to which inquiry the witness testified that he had so indorsed without security, and went on to state, and did state, that when Myers requested him to indorse for him on that occasion he expressed to Myers an unwillingness to do so, and that Myers to induce him to do so, said if he, witness, did not, he, Myers, could not get any body else to do it, and that, he must fail if he could not get the money. And thereupon the plaintiff re-examined said witness and inquired of him what Myers said in the same conversation about the defendant, McCracken, indorsing or refusing to indorse the same note for him. To which question the defendant objected; which objection was overruled, and the court held that the plaintiffs were entitled to give in evidence to the jury, all Qf tjie declarations of Myers in the same conversation.
    In the further progress of the- case the plaintiff examined M. A. Daugherty as a witness in chief, who testified that he was the successor to McCracken and Caldwell in executing the deed of assignment made by George Myers, in trust, for the use of his creditors, whereupon the plaintiff inquired of said witness, for what sum McCracken & Caldwell, as-assignees, had sold the real estate of Myers, under said deed of trust, to which question the defendant, by his counsel, objected. The counsel for the plaintiff then explained the object of the evidence to be to show the value of the property of Myers, and thereby as tending to show his insolvency, at the same time stating that in connexion with the answer to said question, they intended to give further evidence, tending to prove that the amount for which said property was so sold was the reasonable value thereof, that the same was sold at public auction for the most it could command, and that the same had not depreciated in value after the representations of the solvency, made by the defendant, of Myers. The defendant still objecting to the relevancy of the question, the court overruled the objection, allowed the question to be put,- and the answer of the witness thereto to go in evidence to the jury.
    The plaintiff having closed his evidence in chief, the defendant examined D. Tallmadge as a witness, and offered to prove by him that a short time before the failure of said Myers, and before the date of the letter referred to in the declaration, the defendant, McCracken, called on the ^witness with a letter in his hand, and stated that he had been called upon, by a letter from the east, to give his opinion, what he thought George Myers was worth, and stated that he had written in reply that he thought he was worth thirty to thirty-five thousand dollars; said witness having previously testified that he was acquainted with Myers before and at the time of his failure, and that he considered him solvent.
    To which evidence so offered to be given of the declarations and statements of the defendant, the plaintiff objected, which objection was sustained by the Court, and the giving of the idence overruled.
    To which opinion of the Court, the defendant excepted, &c.
    The jury having returned a verdict for the plaintiff, assessing damages against the defendant, the defendant filed his motion in arrest of judgment, assigning for cause:
    That the. letter of the defendant was addressed to Wilson, Butler & Baldwin, and was delivered to McElroy without any authority, (so far as appears from any averment in the declaration) from the defendant to exhibit or deliver the same to any person other than W., B. &. B.; and that it did not appear from any averment in the declaration that the acts of McElroy specified in the declaration in requesting the plaintiffs to sell goods to Myers upon credit, and in exhibiting said letter to the plaintiffs to induce them to sell goods to the said Myers on credit, were in any manner had or done by the direction or with the authority of the defendant, but on the contrary were had and done by said McElroy of his own mere motion, and was not,, and is not averred to have been the act of the defendant.
    Which motion in arrest was also overruled by the Court, and judgment entered upon the verdict; to reverse which judgment this writ of error is prosecuted.
    The errors assigned are:
    1st. That the Court of Common Pleas erred in overruling the demurrer of the defendant to the declaration of the plaintiffs ; First, because the plaintiffs had not put in or filed any joinder to said demurrer; Second, because the declaration of the plaintiffs is not sufficient in law to sustain the action, inasmuch as it is not averred therein that the alleged acts of the said McElroy in requesting the plaintiffs to sell said goods to said Myers on credit, or in exhibiting and showing said letter to the plaintiffs to induce them to sell said goods to said Myers on credit, were had or done by the direction or by the authority of the defendant; but on the contrary that it doth appear by the said averments of the declaration, that the said acts of the said McElroy were had and done by him of his own mere motion, and were n°t in any manner directly or indirectly the. act of the Third, because said declaration is in other respects uncertain and insufficient, and particularly in not averring that the said McElroy was introduced by the said Wilson, Butler & Baldwin, to whom said letter was addressed, to the plaintiffs, and in not averring that said letter was ever delivered by said McElroy to said Wilson, Butler & Baldwin, or that the same was in any manner used or disposed of by said McElroy, consistently with the expressed authority thereof, as averred and set forth in the declaration.
    2d. That the Court of Common Pleas erred in admitting the seventh interrogatory, and the answer thereto propounded by the plaintiffs to Zenas C. McElroy as set forth in his deposition, to be read in evidence to the jury.
    3d. That said Court erred in overruling the objection of the defendant to the inquiry by the plaintiffs of the witness, Jno. A. Collins, as to the declarations made by said George Myers about what the defendant should have said about indorsing or refusing to indorse for said Myers.
    4th. That said Court erred in overruling the objection of the defendant to the question of the plaintiffs and the answer thereto, propounded by the plaintiffs to M. A. Daugherty, and in allowing the evidence of the witness in that behalf to go to the jury.
    5th. That the said Court erred in overruling the question of the defendant propounded to the witness Tallmadge, as specified in the bill of exceptions.
    6th. That the Court erred in refusing to arrest the judgment.

      H. II. Hunter and T. Ewing &f Son, for Plaintiff' in Error.

      John T. Brazee, for Defendants,
   Read, J.

There are three classes of Error complained of in this case.

1st. Error in deciding the demurrer without joinder.

2d. Errors in the admission and overruling of testimony.

3d. That the declaration will not warrant the judgment.

The error under the first head is, that the Court overruled the demurrer to the declaration without a joinder.

A joinder is necessary to constitute a technical issue, and is like a similiter to the general issue. If objected to at the time, it may be filed instantly, and if not, and exception be subsequently taken for this cause, the Court will consider it as having been in. Besides, our statute • provides that a judgment shall not be reversed for mere matter of form.

Under the third head; McElroy was permitted to testify to the hand writing of McCracken without first laying the proper foundation by stating his means of knowledge.

The evidence of hand writing is opinion and belief. The opinion and belief of a witness is not evidence, unless he state the facts and circumstances upon which that opinion and belief are founded ; that the jury may have the means of judging whether such opinion and belief are well founded. But it may be said it don’t matter whether the opinion and belief are first given and then the facts and circumstances, or whether the facts and circumstances are first given, and then the opinion and' belief. But in this respect the order is most material. It is the duty of the Court to exclude illegal testimony, and a mere unsupported opinion and belief are not testimony ; it is the duty of the Court to exclude it from the jury until it become testimony by first stating the means of knowledge which enable the witness to form a correct opinion; and whether the foundation is laid for its introduction is for the Court to decide. But if the Court would violate the order and permit opinion to go to the jury, and then attempt to withdraw it because unsupported by facts and circumstances, it might and probably would make an impression upon the jury which neither the Court or counsel could remove. But in this case the Court admitted mere unsupported opinion, which is manifestly wrong, unsupported by authority, and contradicting both theory and decision.

2d. That defendants counsel asked the question, on cr'ossexamination, as to whether witness had not indorsed for Myers several thousand dollars, in 1842, without taking any secuTo which witness answered that he had, and stated the circumstances under which Myers induced him to indorse. Upon which the plaintiff re-examined the witness and asked him what Myers said in the same conversation about McCcracken indorsing or refusing to indorse said paper. The re-examination in this case was broader than the cross-examination, and therefore wrong. No door was opened in this way to the introduction of mere hearsay evidence. The question was not put to the witness as to what McCracken had said about indorsing or refusing to indorse Myers’ paper, but what Myers said McCracken had said about the matter of indorsement. Thus their admission of such evidence was clearly wrong.

3d. That the Court permitted proof of the amount for which the property of Myers sold under the assignment, to prove the value of the property of Myers, at the date of the declaration in the letter complained of. This is wrong. The true question is, what was the value of the property, not what did it sell for. Property often sells for less than its value, and almost certainly so at forced sales. What the property sold for under such circumstances, would not be evidence to prove its value at a prior time.

4th. The refusal to permit Tallmadge to state what McCracken said he thought Myers worth, previously to Myers’ failure, and previously to McCracken having written the letter upon which he is sought to be made liable, is a matter of some difficulty. It may be said it will not do to permit a man to protect himself by his own declarations. This must depend upon the nature of the declarations, and of the wrong complained of. If McCracken was correct in what he wrote in his letter, he cannot be made liable; he must have written the letter upon which he is sought to be made liable with intent to deceive. If he honestly thought Myers was solvent and worthy of credit, he is not liable. Whether he thought so or not must be gathered from his conduct and declarations, and all those circum stances which go to show motives. Now declarations made when there is no motive to make a false statement as to what a man is supposed to be worth, are certainly evidence of the speaker thinks, unless the presumption be that men are more disposed to speak false than the truth; but the legal presumption and the fact is the other way. And looking ■ at the whole matter, the nature of the charge and the declarations made, I think the declarations of McCracken, thus made, were evidence, and should have been admitted.

The 3d error is, that the declaration does not warrant the verdict.

This error is raised upon the demurrer and the motion in arrest of judgment, and the demurrur and the motion in arrest in this case are precisely the same in the effect which they must produce, and will be considered simply under one aspect.

Is the declaration, then, in this case, sufficient to warrant judgment for the plaintiff?

The declaration avers that McCracken wrote the letter upon which he is sought to be made liable, delivered it to McElroy, the agent of Myers, and directed the same to Wilson, Butler & Baldwin, requesting them to use their influence in introducing said McElroy to süch houses as the said McElroy might require in making up his assortment. It is not averred in the declaration that said letter was delivered to Wilson, Butler & Baldwin, or that Wilson, Butler & Baldwin introduced said McElroy to the plaintiffs. The letter was not one of credit, but a simple request of friendly assistance on the part of Wilson, Butler & Baldwin, to introduce said McElroy to such houses as he might desire; and as inducement to assistance, the circumstances of Myers were stated by McCracken. McElroy was not authorized to deliver this letter to any other person than Wilson, Butler & Baldwin; nor were Wilson, Butler & Baldwin under any obligations to introduce said McElroy to the plaintiffs, nor is there any averment- that they did so.

There is no connexion, then, whatever, between the plaintiffs ant^ McCracken. The wrongful use of this letter by McElroy, cannot make McCracken liable. The letter not being written to the plaintiffs, they had no right to rely upon it, unless it came to them through the proper channel.

If a false statement should be made to one person to induce him to do a particular act, the balance of the world have no legal right to rely upon it; and if they do so, and suffer from it, they cannot recover compensation against the person who made the false statement.

There is no dispute about the general principles of law which govern actions of deceit, or that a man is responsible for the truth of his assertions, made to enable another to acquire credit. But the difficulty in the case, stated in the declaration, is, that the statements in the letter, if false, were addressed to one set of persons, to induce them to act, and there is no averment that such letter was ever delivered to them, or that they acted as requested; but that the letter was used for a different purpose, and relied upon without legal authority by the plaintiffs.

But it is said that the design of McCracken was to give a general credit to Myers. The presumption of the law is, that McCracken acted honestly, until rebutted. Nor can he be made liable beyond what he actually did, and being charged with falsehood and deceit, he can only be made liable on strict averment and proof. The direction of the letter was special, nor is there any averment or proof that it was designed for general use. Nor can it be said, had the letter been rightly delivered, whether the contents were true or false, that any injury would have accrued to the plaintiffs. But it is contended that the lack of averment is cured by verdict. This is not the case of a good title, defectively stated; but it is the statement of a defective title. The case made in the declaration is not sufficient to warrant judgment, and therefore it is not cured by verdict.

We are therefore of opinion that the declaration is not sufficient ; and therefore for this cause, and others heretofore noted, the judgment is reversed.


author: Avert. J.

text:
    James Kay and others vs. John & Robert Watson.
    Where a decree is reversed on a Bill of Review, cause continued, answers filed, further testimony taken, final decree rendered for the complainants, and an appeal from this final decree taken, the order of reversal is thereby vacated.
    A certificate of purchase from one of the United States Land Offices, is evidence of an equitable interest in the purchaser.
    On a contract, though by parol, for the purchase of this interest, and part performánce, a decree for specific execution may be rendered.
    The affidavit of the printer, filed with a copy of the notice, is sufficient evidence to make defendants out of the State, parties to the suit.
    A complainant, in the bill of review, who was a feme covert when the decree was rendered, may file a separate bill of review within five years after the disability is removed 5-but if she joins in a bill with others who are barred by lapse of time, when their interosts are capable of severance, the bill will be dismissed as to all.
    When the case under such bill of review, shows that the feme at the time, had no interest in the premises in controversy, a decree of reversal will not be rendered.
    This is a Bill op Review reserved in the County of Morgan.
    The statement of the caáe appears in the opinion of the court.
   Avert. J.

The Bill of Review was filed in April, 1844, in the Court of Common Pleas of Morgan county, to reverse a decree of the same Court, rendered in August, 1831.

The original Bill, according to the prayer of which this decree was obtained, had been brought by Robert and John Watson, the present defendants, against the widow and heirs of Richard Kay dec’d.' — rthe heirs living in Great Britain — and a final decree was rendered in favor of the Watsons.

In the Bill of Review, the widow, described as of Morgan county, and all others, who at the time were heirs of Richard Kay dec’d., also described as of the Kingdom of Great Britain, were complainants, and the two Watsons were defendants.

The original bill set forth, that on the 22d of September, 1817, a certain Daniel Myers purchased at the Land Office at Zanesville, the north-west quarter of section 30, township 6, in range 30, and paid the "first instalment; that shortly after, the ’ said Myers, for value received, made a sale and assignment of ■ the same to Richard ííay; that on the 21st of September, 1821, said Kay surrendered the original certificate of purchase, and obtained from the Register of the Land Office at Zanesville, a certificate of further credit, but made no payment on the said tract; that immediately after the purchase by Kay, he entered into a parol agreement with the petitioners, that if petitioners would agree to go into possession of said land, and improve and cultivate the same for the joint use and benefit of said Kay and the petitioners, that ho the said Kay would pay the balance of the purchase money of the said land, and make a conveyance of the same to petitioners at some aftci period; that the proposition was made by the said Kay in consequence of his having brought petitioners with him from England when they were of a tender age, and in consequence of their residing in the family and with the said Kay as his own children ; that in compliance with ..the agreement, petitioners both went into possession of the land, cleared about 50 acres before the death of said Kay, cultivated the same, and the proceeds were applied, towards the support of said family; that as said Kay was a mechanic, and did not work on the farm, the whole of the labor was performed by the petitioners; that Kay died in the fall of 1827, leaving a widow residing at the date of the bill, in said Morgan county, and leaving in Great Britain certain brothers and sisters who are named, and made parties, but leaving no children. The bill further states, that owing to the sudden death of said Kay he had not paid the balance of purchase money due on the land, nor made a conveyance or assignment to the petitioners; that the labor bestowed by them on the land was with the knowledge and approbation of said Kay, and under a full understanding and agreement that the land should be conveyed to the petitioners; that unless the balance of the purchase money should be paid by the 3d day of July then next, the land would revert to the United States, and the money paid be forfeited.

The bill prays that the defendants be compelled to release' or assign their interest in the land.

. . . Testimony was' taken in the case, and at the August term, 1831, a decree rendered for a specific execution of the contract.

To the bill of review presented to reverse this decree, a demurrer was filed, and on hearing, the decree was reversed. The cause was then continued under the bill of review, and leave given to the defendants to answer. Answers were subsequently put in, farther testimony was taken, and after successive reports of masters in the case, made and set aside, at length, at the February term, 1848,, a final decree passed against the defendants in the bill of review, from which an appeal was taken to the Supreme'Court of Morgan county.

There has been some discussion by the counsel upon the effect of the appeal taken in this case; whether all the orders and decrees of the Court below are vacated by it, as they would , have been of course, by an appeal taken directly after the order of reversal. We consider the bill of review as the case brought up by the appeal. It was treated and continued as such throughout,in the Common Pleas, and the answers and all subsequent proceedings, including the final decree, rest upon it as a basis. If this be the, state of the case, then the question is presented here as it was at first, before the Common Pleas, whether the original decree is erroneous, and we come to consider the several errors assigned by the complainants in their bill.

The 1st is, That no process was served on the defendants in the original bill, except upon the widow, nor was notice by publication given as required by law.

, 2d.- That the affidavit of John Wilkin was the only evidence before the Court, of publication.

3d. That the evidence, in the cause does not warrant the decree.

4th. That the facts stated in the original bill are not sufficient to sustain the decree; nor to entitle the complainants in the original bill to any relief.

5th. That James Kay was not alive-at the time of rendering said decree, and could not be bound thereby, and consequently complainants ought not to be bound by the decree.

6th. That said Mary, at the time of obtaining said decree, was a feme covert, and was not made a party to said original bill by the name of Mary Kay, and therefore could not be bound by said decree, consequently complainants could not, any of them, be bound thereby. An answer to the two first errors is furnished by the record, which contains an Order of publication duly made by the Court; a copy of the advertisement, published in the newspaper, as directed, ■ and which was continued for the nine weeks, and more than the nine weeks specified in the ■ order, according to the affidavit of one of the publishers. The affidavit represents the notice as published “ on the 13th November, 1830, and continued in each publication of said paper, from that time till the 19th of March,” being more than nine weeks. This we consider sufficient proof of notice, and the defendants are thereby parties! But further, the fact of publication is found by the Court in their decree, and being so found, cannot afterwards be questioned by the parties.

The 3d and 4th assignments deny that the facts, as set forth in the original bill, show a case for relief, and deny that there is sufficient evidence to warrant the decree.

The case stated in the bill is one of common equity jurisdiction ; a contract upon a sufficient consideration for the purchase of a tract of land, or rather the vendor’s- equitable interest in the tract. There can be no objection to the sale of an equitable interest any more than to the sale of a legal interest, and a parol contract will be held as binding upon proof of part performance, as though it were in writing. Neither is an equitable interest less the subject of sale, because the legal title remains in the government. Regarding the bill, then, as sufficient upon its face, we have examined the evidence, and are not satisfied that the Court committed any error in their judgment upon the facts. They find expressly in their decree that the facts charged in the bill are true, and after the lapse of so many years, their finding ought not to be disturbed, without substantial cause.

The fifth error alleged, that Jane Kay was not living when the decree was rendered, cannot furnish a ground in this case for reversal. The decree in that respect is merely void, senting nothing upon which a bill of review can operate. She was dead, as it appears, before the bill by the Watsons was filed.

The sixth error may be well assigned. If Mary Kay was a feme covert, she could not, by the proceeding against her as a feme sole be made a party, and the decree against her would be erroneous. As such feme covert at the date of the decree, she would be entitled to her bill of review at any time within five years after disability removed. But the consequences supposed in their bearing upon the interests of others, would not follow. The subject matter in controversy is capable of division, and a bill of review for her undivided part of the land, would secure to her all her title, though in connexion with different joint owners. A privilege expressly given to her by the law, solely on account of her coverture, cannot jointly be extended to others, without there be a necessity for it. In such a case, a separate bill should be filed. And it may frequently happen that interests which were common to all when the decree was taken, may afterwards become separate and adverse, within the time limited for a bill of review, and thus furnish a case for a separate bill. In behalf of this feme covert alone, without joining the other complainants, a bill of review might have been brought.

But what benefit she could derive from her bill of review, must depend upon the settlement of a farther question which arises in the case.

Richard Kay died intestate, leaving a widow in this country, and brothers and sisters, aliens, residing in Great Britain, who were his only heirs. Under the law of descents, then in force, (the act of February, 1824,) the estate of the intestate passed to the widow, if “ his only kin or heirs of his blood, were aliens, unless they appeared and presented their claim within fifteen years from the passage of the act.” None of the alien heirs did appear and present their claim within the time prescribed. None of them therefore can now set up a claim to the land. If the interest in the land did not belong to the Watsons, under their contract, it passed to the widow, to be divested only by virtue of the proviso of the act. It has been asked in behalf of the complainants, if the original bill and the proceedings under it, may not operate to bring them within the proviso. We think not. We cannot see how, by this suit of the Watsons against these aliens, they can be said to appear and prosecute their claim against this widow, even though she was also a defendant in the same suit. As it appears then in the case, that this feme covert, at the time of filing the bill of review, had no claim to the land in controversy, there will be a decree against her as well as the other complainants.

C. C. Covey, for Complainants in Review.

Hayward &f Hanna, for Defendants.'