author: Johnson, J.

text:
    Phillip Dengenhart v. Louisa D. Cracraft, et al.
    1. The 36th section of the act of 1816 (2 Chase, 935), which gave to courts of common pleas the power to appoint guardians to minors, and to authorize .such guardians or any guardian theretofore chosen or appointed to sell all or part of the real estate of their wards for their support or education, did not authorize the court to order a sale of the lands of an infant femme covert upon the application of her husband, made under said section.
    2. It is essential to the validity of a conveyance of the wife’s estate in lands, under section 2 of tlie act of 1805 (1 Chase, 485), that the same should be acknowledged before an officer named therein, and that the-certificate of such acknowledgment should show a substantial compliance with all the requirements of said section.
    3. If such conveyance of the wife’s land is signed, sealed and delivered in the presence of the attesting witnesses by husband and wife, not acknowledged before an officer by the husband, but is defectively ackD owledged by the wife only, it is a deed or conveyance of husband and wife within the curative provisions of the act of 1857 (1 S. & C. 694), as revised (75 O. L. 786, div. 7, ch. 16, §6.)
    4.' If it appears that it was the manifest intention of the husband and wife to convey the wife’s lands, and they join in signing, sealing and delivering a deed for that purpose, but the saméis not a valid conveyance of her estate by reason of the mistake of the parties in acknowledging the ■same before an officer not authorized by law to take such acknowledgment, or for the reason that his certificate is defective in form,' such deed or conveyance may be cured under the provisions of said statute.
    Error to the Superior Court of Ciueiunati.
    This case was considered with five others.
    They involve the title to one-fourth of sundry lots of land in Cincinnati, part of a subdivision of about one hundred acres, of which Israel Ludlow died seized in 1804.
    ■ They all involve the validity of certain judicial proceedings and sales and conveyances, made thereunder.
    Three of these cases depend cn the validity of deeds under the act of 1805 (1 Chase, 484); one under the act of 1818 (2 Chase, 1041) and two under the act of 1820 (2 Chase, 1139). The deed in the case at bar- comes under the act of 1805, and the points decided dispose of all the cases except one, which will be reported separately.
    Israel Ludlow died in 1804, intestate, leaving heirs — James C. Ludlow, who was born September 10, 1796 ; Martha Catharine Ludlow, who was born October 9, 1799 ; Sarah B. Ludlow, who was born-, 1802; Israel L. Ludlow, who was born May 21, 1804, — the present plaintiffs, who claim to be entitled to recover the share of Martha Catharine.
    It is conceded that they are entitled, as heirs of Martha Catharine, to recover, unless their title is defeated by some of the defenses.
    The title of defendants below is derived by mesne conveyances from one (Julhertson Varies, who was a purchaser, at judicial sale, made under an order of the court of common pleas of Hamilton county, as hereafter stated.
    If this deed to Parks is valid as to Martha Catharine, or if .its defects can bo cured, it is conceded plaintiffs in error must recover.

      From an agreed statement of facts it appears that in August, 1814, letters of guardianship were issued to "Wm. Irwin, as guardian of Martha Catharine, then aged fourteen years, and to -Samuel "W. Davis, Stephen McFarland and Griffin Yeatman, as guardians respectively of the other minor children, and that Martha Catharine was married to Ambrose Dudley, November 18, 1816, while still a minor.
    There is no record of the judicial proceedings under which the sale was made to Parks, September 9, 1817, and under which the conveyance to him, now in controversy, was executed ; but among the files of the court was found the following petition:
    “ To the Honorable Court of Common Pleas of Hamilton County, State of Ohio. The petition of Samuel W. Davies, guardian to James -C. Ludlow, Griffin .Yeatman, guardian of Israel Ludlow, Stephen McFarland, guardian of Sarah Bella Ludlow, and Ambrose Dudley, husbamd of Martha Qathari/ne Dudley, late Martha C. Ludlow, children and heirs-at-law of Israel Ludlow, deceased, late of Hamilton County, respectfully showeth that some of your petitioners are already in advance for the support of their .wards, and there are other debts of considerable magnitude due from their estate which cannot be paid without a sale of real estate. To enable them to meet the payment of these claims and for the future support of the heirs your petitioners pray the court to authorize them to sell the following described tract of land belonging to said heirs, situate in section number twenty-four, township four, in the first fractional range, and bounded and described as follows, to wit: bounded on the South by the Ohio River, on the "West by Mill Creek, North by a line running due West from William Barr’s .North West corner, East by William Barr’s and John Pierson’s land, in the County of Hamilton, containing one hundred acres or thereabouts, and your petitioners will ever pray, &c.” “ Sam. W. Davies,
    “ Stephen Macearland,
    “ James O. Ludlow for Ambrose
    Dudley and wife,
    “ Grieein Yeatman.”

      This paper is indorsed as follows:

      “ Ham. Common Pleas.
    “ Heirs of Israel Ludlow, deceased.

      “Petition for order of Court to sell real estate, filed July 28, 1817.
    “ J. S. Gano, Cllc.”

    The minutes of the court, of the same date, show that certain persons were appointed appraisers, and that an order of appraisement was issued by the clerk, addressed to the appraisers, reciting the petition, and that it had been examined by the court, that they were appointed appraisers, and that they were ordered to report a valuation of the property at that term of the court. This writ was dated July 29, 1817.
    The probate entries "also show the filing of this petition, the appointment of the anpraisers, and their report of valuation. The minutes of the court further show that the following order was made, July 31, 1817:
    “ Report filed of appraisers appointed on order of court on petition of heirs of Israel Ludlow, deed., for sale of real estate. Court grant an order for sale on condition that additional bond and security be gimen in the sum of fime thousand dollars by each guardian”

    The same appears among the probate entries of the same date ; also that on August 2, 1817, the guardians of the other minor children each gave the additional bond of $5,000 required by the condition of the order of sale. No bond is shown to have been given by Irwin as guardian of Martha Catharine Dudley, or by her husband, Ambrose Dudley.
    No further proceedings appear to have been had in court, other than appears- by the recitals of the deed under examination. This deed reads as follows :
    “ This indenture, made the tenth day of March in the year of our Lord Eighteen hundred and eighteen, between Sami. W. Davies, guardian of James C. Ludlow, a minor under the age of twenty-one years, Griffin Yeatman, guardian of Israel Ludlow, also a minor, Stephen MacEarland, guardian of Sarah Bella Ludlow, a minor under the ago of eighteen years, and
      Ambrose Dudley of the State of Hmi/acky and Catha/rine Dudley Wife of the said Ambrose late Catharine Ludlow which sd. James, Catha/rine, Sarah Bella and Israel are Children and Ileirs at Law of Israel Dudlow late of Cincinnati Hamilton County State of Ohio, now deceased of the first pa/i't and Culberson Parks of the said County of Hamilton of the other part whereas the parties of the first pa/rt were authorized and empowered by an order from, the Court of Common Pleas of the County of Hamilton afsd. at the term of Jul/y eighteen hundred a/nd seventeen to sell and dispose of the following described Tract of Land belonging to the Estate of the sd. I. Ludlow deed, situated lying and being'in sd. County of Hamilton in Sect. No. Twenty four, Township four and first fractional Range and bounded and described as follows that is to say on the South by the Ohio River "West by Millereek North by a line running due West from Wm. Parrs North West corner and East by Wm. Parrs and John Pearsons Land containing one hundred Acres or thereabouts and whereas the said Guardians have ca/used the said Land to be di/oided into Lots and apian thereof to be recorded in the Recorders Office of Hamilton County in Pook R. No. 2. page nine and the said tract of Land having been dul/y appraised according to Law at one hundred and fifty dollars per acre and having published the time and place of sale six weeks successively in the Cincinnati Gazette did proceed in pursuance to sd. order and of the notice afsd. to sell the said Lots at public vendue on the ninth of Sept. Eighteen hundred and seventeen and whereas the said Culberson Paries at the sd. vendue bid the sum of Two hundred dollars per acre for the two following described lots of Land being a parcel of the afsd. tract ordered by sd. Court to be sold bounded as follows, to-wit beginning at a stone fifty two and three tenths poles South of Wm. Parrs North West corner thence North seventy four degrees West sixteen Poles to a stake, thence South eighty and three tenths poles to the River thence up the River to sd. Parks former line thence on said lino to the South West corner of John Pearsons Land thence with said Pearsons Land North sixty nine and five tenths poles to the beginning containing seven Acres and

      thirty two poles more or less being Lots numbered one and three on tbe aforesaid plan of sd. tract and the sd. Lots were struck off and sold to the said Culberson Parks he being the highest bidder therefor. Now therefore this Indenture witnesseth that the said parties of the first part by virtue of the power'and authority aforesaid in consideration of the sum of Two hundred dollars per acre to them in hand paid by the said Culberson Paries the receipt whereof we do hereby acknowledge have granted, bargained sold and conveyed and by these do grant bargain sell and cormey unto .the said Culberson Pa/rlcs his heirs and assigns forever the above described lots number one and three and all the privileges thereunto belonging. To have and to hold the granted premises to him the said Culberson Parks his heirs and assigns and to his and their use and behoof forever and the said parties of the first part in their said capacities do hereby covenant and agree to and with the sd. party of the second part that in thei/r said capacities will forever warrant and defend the above granted premises to the sd. pa/rt/y of the second part his hei/rs and assigns. In Witness whereof we the parties of the first part have hereunto set our hands and seals the 24th day of March in the year of our Lord Eighteen hundred and eighteen.

      “ Sam. W. Davies [Seal.] ■

    Grieein Yeatman [Seali\ ■

    Stephen Macearland [Seali\

    A Dudley [Seali\

    Martha 'Catharine Dudley ¡Neah]
    “ Signed sealed and delivered in presence of
    Saml. Ramsay
    John Mahard
    Nathaniel Wright
    “ The State oe Ohio, )
    Hamilton county, j ss*
    Before me John Mahard a Justice [SedU\ of the peace in and' for said County. personally appeared Sami. W. Davies, Griffin Yeatman and Stephen MacFarland three of the within named granfors who .severally acknowledged the within deed of .conveyance to be their voluntary act and deed for the uses and purposes therein mentioned.
    “ In Testimony whereof I have hereunto set my hand and seal at Cincinnati the 24th day of March 1818.
    John Mahard
    “ Fayette county to-wit:
    “ Martha C. Dudley wife of Ambrose Dudley Jr. came before me a justice for said county and did privately and apart from her said husband free and voluntarily acknowledge a/nd relinquish her right to the withm mentioned Lot of Lcmd. Given under my hand and seal this 31st day of March 1818.
    “Leonard Young, J. P. F. C. [Seal.} ”
    It will be noted that Ambrose Dudley, the husband, is one of -the parties to this indenture, who “ signed sealed delivered ” the same in the presence of three witness, jointly with his wife, and the guardians of the other three children, lout that he did not acknowledge the same before an officer though the guardians did, on the same day, and his wife did, seven days later. That he did acknowledge it in presence of the witness is inferred from its delivery as a deed in their presence.
    It furtlier appeal’s that this deed was executed and acknowledged at the times and places and in the manner and form stated, as appears upon its face, and was delivered to Parks, who took possession thereunder, that it was duly recorded November 4, 1819, and that defendant below has a perfect chain of title, by mesne conveyances, and continued possession from Parks.
    “ YII. It is admitted that Leonard Young was in the years 1818,1819 and 1820 a justice of the peace in and for the county of Fayette and commonwealth of Kentucky, duly commissioned and qualified, and that the original certificates upon or attached to the foregoing deeds were made by him,
    “ YIII. It is also admitted that by the laws of Kentucky in force at the several times said foregoing deeds are dated and said certificates made by said Young, acknowledgments of deeds conveying land-in Kentucky by husband and wife wore required to be made before two justices of the peace; that in such case the husband and wife must acknowledge the signing and sealing thereof, must subscribe the same in the presence of such justices, and thereafter, the wife must be examined privily and apart from her husband, the deed then shown and explained to her, and she must, on such examination apart from her husband, declare that she executed the said deed freely and voluntarily without the persuasion or threats of her husband, and the justices must certify to the signatures of the husband and wife and to the joint and several acknowledgments.
    “ And at no time did the laws of Kentucky authorize the acknowledgment of a deed of lands in Kentucky by husband and wife to be taken by one justice of the peace, and there was no provision of law in any act of the legislature of Kentucky providing for the acknowledgment of deeds of lands situated out of Kentucky, before officers in Kentucky.
    “ X. 'That said Martha C. Dudley died intestate in October, 1834, leaving surviving her the following children, her heirs at law, to wit:
    “ (1.) Ethelbert L. Dudley, born about 1819.
    “(2.) Louisa D. Dudley, born 1825, September.5th.
    “(3.) Charlotte A. Dudley, born 1829, May.
    “ (4.) Ellen 'C. Dudley, bora 1831, January 14th.
    “ XIII. That said Ambrose Dudley, the husband of Martha C. Dudley, died 1875, May ftid?'1

    The defendants below claimed:
    1st. That the judicial proceedings, sale and conveyance to Parks divested the title of Martha Catharine, and vested it in fee in Parks, through whom they claim.
    2d. That by virtue of said proceedings, sale and conveyance, coupled with continued possession thereunder, and the death of Martha Catharine in 1834, plaintiffs are barred by the second section of the act of March 22, 1849, entitled “An act to give additional security to land titles in this state. ”
    3d. The statute of limitations of twenty-one years is relied on.
    4th. This defense is a statement of facts showing these judicial proceedings, sale, conveyance, payment of purchase money, &c., and a prayer that if this deed to Parks did not divest Martha Catharine Dudley of her title, it fails to do so by her mistake and that of her husband and the justice of the peace, that they intended to convey a fee, and that this mistake should be corrected.
    Adversely to this it is claimed :
    1. That as against Martha Catharine Dudley, who was a mi/nor and a mcurried woman, these judicial proceedings, sale and conveyance are void, and her title therefore descended to her heirs.
    2d. That neither the act of 1849, nor the general statute of limitations barred this action (which was commenced April 14, 1879), for the reason that, until the death of Ambrose Dudley, who had an estate by curtesy in the land, no right of entry accrued to the heirs.
    3d. That the case is not one for the application of the curative statutes.
    The object of this proceeding in error is to reverse the judgment of the court below in overruling a motion for a new trial, and in rendering judgment against the plaintiff in error and in favor of the heirs.

      JSoadly, Johnson At Colston and Wulsin At Worthington, for plaintiffs in error :
    I. We claim that in no case under the act of 1805 was acknowledgment an essential part of the deed as between the parties and others having notice, but was necessary only to secure record, and protect the purchaser from subsequent innocent purchasers.
    . It will be noticed that section 2 declares that “ it shall and may be lawful for the said husband and wife,, she being not less than eighteen years of age, to make seal, deliver and execute ” a deed for her lands, “ and after such execution ” to acknowledge, &c. The deed is executed before the acknowledgment is taken; but if it is executed, the purpose it was intended to accomplish must be executed also. Executing a deed is not an end; it is a means of accomplishing an end. In the act of 1818, -which made acknowledgment a part of the execution, it is said that deeds must be signed, sealed, attested, acknowledged, and a certificate of acknowledgment written upon the deed, “ and all instruments of writing executed ” as thus provided, were valid. 2 Chase, 1041, §§• 1, 2. Here the execution is plainly dependent upon the writing of the certificate. In the act of 1795 as to deeds by married women, the deed is valid provided the certificate' is endorsed, which accomplishes the same end. In this act the proviso is dropped; instead, there is merely the copulative “ and. ” This is much more than a mere change in phraseology; it is a change in the whole structure of the sentence, and the meaning conveyed thereby. “ When a considerable change is made in the phraseology of a former law, the inference is reasonable that a change of meaning was also intended. ” Bloom v. Richards, 3 Ohio St. 403.
    We are aware that in several cases in our reports there are expressions which give a different construction to this act. But an examination will show that in every case but one, such expressions were either obiter dicta, or else the case in which they were found has since been overruled.
    We are aware also, of the inference that may be drawn against us from the supposed novelty of this point, from the fact that it was not presented in any of these cases, though argued by astute counsel, and decided by learned judges. But it must also be remembered, that for a long series of years before these cases were decided, the law had been explicit that an acknowledgment was necessary; and so fixed and rigid had the ideas of men grown under these late laws, that in Carney v. Hopple, 17 Ohio St. 35, a case under the law of 1805, the court relied on decisions under these later laws, as its authority, utterly overlooking the difference in the statutes, and its own prior decisions. To the same objection a most fitting answer was' given by this court on another occasion ; in Whitney v. Webb, 10 Ohio, 574.
    II. (1) Acknowledgment by the husband was not necessiiry. If necessary, then as against the husband, a deed is not valid when the wife is named in it as a party, unless executed so as to bind the wife.
    It would seem as if the bare statement of such a result was a sufficient refutation of the proposition on which it is founded. So far as he is concerned, the deed may be tested by section 1 as well as section 2, and if valid under either, it passes all his interest in the land.
    It being conceded that a joint' acknowledgment was not necessary, and it being shown that no acknowledgment by the husband was necessary to' pass his own interest, was his acknowledgment necessary to pass his wife’s interest? The statutedoes not say so. 1 Chase, 485; Williams v. Robson, 6 Ohio St. 510, and cases cited; Ludlow v. O'Neil, 29 Ohio St. 183; Mount v. Kesterson, 6 Coldw. 452.
    III. The certificates were .sufficient in form. Ruffner v. Lenau, 16 Ohio, 639; 6 Ohio St. 247; 42 Ill. 516; 19 Me. 274 ; 3 Ohio, 140 ; 3 Dana, 111.
    IV. The court had authority to order the sale of lands of Martha 0. Dudley, although she was an infant feme covert at the time.
    Section 36 of the statute, 2 Chase, 935, was general in its application ; it applied to all minors, whether married or unmarried ; the court was authorized to order the sale of the lands of any minor on good cause shown either for support or education.

    The statute having made no. exception as to the power of the court to authorize the sale of the real estate of minors, in Case such minors were married, it is not for the court to make the exception.
    It is true Mrs. Dudley had a husband who was bound to support her, but certainly an infant feme covert would not be permitted to remain in want, when possessed of real estate which could be applied to her support, because of her husband’s legal liability to support her.
    (2.) The proceedings were i/n rem, and no notice was required. 12 Ohio, 272; 9 Ohio, 21; Id. 8 ; 7 Ohio, pt. 1, 200; 7 Ohio, pt. 2, 141; 8 Ohio, 417; 15 Ohio, 696; 3 Ohio St. 494; 8 Ohio, St. 614 ; 18 Ohio, 368 ; 12 Ohio St. 49; 16 Ohio St. 456 ; 4 Johns. Ch. 100 ; 2 Daniell (3rd Am. Ed.) 1394, 1397. Hence it was not necessary that she should have been a party.
    (3.) Ambrose Dudley by virtue of his marriage was the guardian of liis wife within the meaning of section 36 of the act of 1816. 5 Ohio St. 307; 1 Paige, 488.
    The guardianship of Mr. Irwin ceased at the marriage of Mrs. Dudley. Kettletas v. Gardner, 1 Paige, 488; In re Brick’s Estate, 15 Abb. Pr. 12 ; Schouler on Domestic Relations, 426; McPherson on Infancy, 113 ; Reeves Domestic Relations, 327, 328. A guardian will not be appointed for' a female ward after her marriage. Roach v. Garven, 1 Vesey Sr. 157; 4 Comyn Dig. 282; Bacon’s Abr. title Guardian, E.
    The husband has always been considered as the guardian of his wife. Bishop on Law of Married Women, § 524; Exp. Post, 47 Ind. 142; 2 Kent, 181; Bacon’s Abr. title Guardian, E.
    Ambrose Dudley was certainly the guardian of his wife within the meaning’ of the act of 1816. The act provides that the court shall have power, on good cause shown, to authorize guardians to sell, &c., being general in terms, and applying to any guardian. ■ The statute is so general that any person who could properly be considered the guardian of another, could be authorized to sell the land of the ward.
    The legislature not having seen fit to limit the power of the court in authorizing the sale of the real property of minors to any particular guardian, there is no reason why the court should limit it. The jurisdiction of the court may be invoked by any one. 2 Daniell (3d Am. Ed.) 1393.
    But if Ambrose Dudley was not the guardian of his wife by virtue of his marital relation, we claim that it will be presumed that an order was made in the proceedings of 1817 appointing him such guardian. 2 Ohio St. 241; 12 Wheat. 70; Broom Legal Maxims, 909; Hobart, 295; 15 Com. Bench, 77; 10 Q. B. 453; Freeman on Judgments, § 124.
    His application was entertained and the court appointed appraisers to value all the property described in the petition, making no exceptions as to Mrs. Dudley’s.
    The report of the appraisers speaks of him as guardian, This appraisement included Mrs. Dudley’s one-fourth interest; and the order to sell, which was made on the report of the appraisers, r#cognizes liim as guardian. The order makes no exception as to Mrs. Dudley’s one-quarter interest.
    There is nothing in the recitals of the deeds which are in evidence to rebut this presumption, but on the contrary they support the presumption.
    The order to sell will be construed to be an appointment.
    The court must have found that he was guardian, either by prior appointment of the court, ordering the sale, or by appointment from some other court of competent jurisdiction in this state, or by appointment from some court of competent jurisdiction in another state, as the existence of such fact was necessary to the jurisdiction of the court. ' 6 Ohio, 269; 2 Peters, 163; 3 Ohio, 256 ; 3 Ohio, 325 ; 3 Ohio, 560 ; 4 Ohio, 129; 5 Ohio, 499; 7 Ohio, pt. 1, 198; 18 Ohio, 368 ; 9 Ohio, 23; 12 Ohio, 195 ; 17 Ohio, 431; 3 Ohio, 305 ; 18 Ohio, 546; 16 Ohio, 697 ; 3 Ohio St. 496; 20 Ohio, 349 ; 10 Peters, 474; 2 How. 339, 340.
    Y. If we are wrong in the foregoing, then we claim that the defects in the deeds arc such as will be corrected under the curative statutes of Ohio. 1 S. & C. 694; and see Goshorn v. Purcell, 11 Ohio St. 641; Purcell v. Goshorn, 17 Ohio, 105.; 20 Ohio St. 478 ; 30 Ohio St. 255 ; 26 Ohio St. 153.
    YI. Statute of limitations.
    1. As to the deeds made under the act of 1805. The deeds were properly executed, under the act of 1805, by Ambrose Dudley, before any children were born of his marriage with Martha Catharine Dudley. Our contention is that they conveyed his right in his wife’s lands, not as tenant by the curtesy, but for their joint lives only ; that the right of entry and cause of action of her heirs accrued when the joint lives terminated, viz., upon her decease, in 1834, and was barred by the statute of limitations long before these suits were brought.
    Before the act of July 1, 1853 (1 S. & C. 504); the estate of tenancy by the curtesy in Ohio depended upon common-law principles. By that act, but not before, a childless husband became tenant by the curtesy. Before July 1, 1853, tenancy by the curtesy úniiñate, in Ohio, was the result of marriage,
      birth of issue, and seizin of tbe wife, and became» consummate upon the wife’s death. The only difference, between the Ohio and the common-law curtesy was, that seizin in la/w was here sufficient to create the estate. Lessee of Borland v. Marshall, 2 Ohio St. 308 ; Lessee of Mitchell v. Ryan, 3 Ohio St. 377; Lessee of Merritt v. Horne, 5 Ohio St. 308; Washb. on Real Property, *222, 276 ; Canby's Lessee v. Porter, 12 Ohio, 80; Guion v. Anderson, 8 Humph. 325; Gillespie v. Worford, 2 Coldwell (Tenn.) 640.
    Did the birth of issue in 1819 enlarge the estate of the purchaser ? Had the heirs of Mrs. Dudley brought ejectments against the purchasers, after her decease in 1834, and before the statute of limitations had barred the action, could they have defended on the ground that although, by the deed, the estate which passed was only a freehold for the joint lives, it was, by the birth of issue after the making of the deed, enlarged to “ a freehold in ” vested “ remainder, to ” their grantor, “ for life as tenant by the curtesy 1”
    Clearly, no such estate passed by the deed. The estate did not then exist. It might never have existed. It never ■did exist. It could not afterward spring into being, because, .although it is sometimes said that the order of time, in which marriage, birth of issue, and seizin of the wife occur, is immaterial, it is impossible to find a case in which it has been held that curtesy can attach after the wife has lost lier seizin, .and her estate has become a mere reversion, without seizin of .any kind, in law or in fact. By all the authorities, it is shown that during the coverture, the wife and husband are jointly .seized of the estate as an entirety. Break up this entirety by .the sale of the husband’s freehold, and, the particular estate having passed to another, the wife ceases to be seized in law or :in deed, but becomes a mere reversioner, and as there can be no curtesy in a remainder or reversion, the contingency upon which his freehold as tenant by the curtesy will vest, can never •occur. Co. Litt. 29 a; Id. 40 a; Sumner v. Partridge, 2 Atkyns, 47; Watkins v. Thornton, 11 Ohio St. 367; Co. Litt. 30 a; Id. 66 a; Id. 67 a; Co. Litt. 233 b; Ib. 326 a, 327 b; Washb. on Real Prop. *92, 93, 142.

      2. As to the deed made tinder the act of 1818. This deed was not acknowledged by Ambrose Dudley ; it was not, in law, a conveyance, but a mere contract, incapable of use and without value as a defense to an ejectment. The possession taken under it was, in law, adverse, and equivalent to a disseizin of the husband and wife. We claim, therefore, that there remained, notwithstanding this deed, a right of entry in Dudley and Ms wife during coverture, and that the right of Mrs. Dudley’s heirs to bring the action is limited to the period of ten years after her decease in 1834.
    This position is sustained by the great weight of authority; resisted only by the decision of a divided court in New York, and an obiter dietmn in Ohio. Jackson v. Johnson, 5 Cow. 74; Lessee of Thompson v. Green, 4 Ohio St. 216 ; Washb. on R. P. *141, 276; 16 Pick. 161; Mellus v. Snowman, 21 Me. 201, 205 ; Coe v. Manufacturing Co., 35 Conn. 175 ; 8 Humph. 298; Weisinger v. Murphy, 2 Head., 674; McClung v. Sneed, 3 Head., 218 ; Miller v. Miller, Meigs, 484; McCorry v. King’s Heirs, 3 Humph. 267; Butterfield v. Beall, 3 Ind. 203, 207; Foster v. Marshall, 2 Foster, 491; Took v. Glascock, 1 Wms. Saund. 253 ; Polyblank v. Hawkins, 1 Dough 329; Clancy on H. & W. 161; Bright on H. & W. 112; Bishop on Married Women, § 574.

      Studio, Eittredge <& Shoemaker, D. Them. Wright, H. F. Bra-shear, -Coffin, and Mitchell & Holmes, for defendants in error:
    I. Jurisdiction.
    1. The guardianship of Wm. Irwin for Catherine Ludlow terminated by her marriage. Whitaker’s case, 4 Johns. Ch. 380; Gillespie v. Worford, 2 Coldw. 638.
    The husband did not become guardian of the property of his wife. 1 Vesey, 160; 4 Johns. Ch. 378.
    2. The guardian sale did not effect Mrs. Martha C. Dudley or her heirs.
    Mrs. Dudley was not a party to the proceedings. She was not a petitioner; it was not her petition. The petition upon its face and in its express terms does not purport to be her petition. When this petition was filed (July 28, 1817) she was an i/nf ant feme covert, and had not the capacity to authorize any one to appear for her. She could not bind herself or her estate, by appointment, contract, agreement or deed, either at law or in equity. Hale v. Greenback, 1 Vesey Sr. 299 Stamper v. Barker, 5 Mad. 157; Sanford v. McLean, 3 Paige, 121; 2 Coldw. 638, 639 ; Udall v. Kenney, 3 Cow. 599.
    3. The proceedings in the common pleas, on the petition of the guardians, were insufficient to vest title in the purchasers. without deeds.
    There is no evidence of the sales; no report of sales, nor did the statute require a report of sales. See 2 Chase, 935, § 36; Lessee of Stall v. McAlester, 9 Ohio, 19, 21.
    The statute under consideration in 9 Ohio, is an exact copy of the act of 1816, as to sales by administrators and by guardians.
    Moreover, sales by guardians and by administrators, under 'the act of January, 1816, do not vest a title in the purchaser, unless the lands so sold are conveyed by deed duly executed. The deeds must be signed and sealed by the grantors, and witnessed and acknowledged. Miami Ex. Co. v. Halley, 7 Ohio, pt. 1, 11, 13, 14.
    4. The deeds as to Mrs. Dudley and her heirs are void for want of acknowledgment. Ruffner v. McLenan, 16 Ohio, 639; Smith v. Hunt, 13 Ohio, 268; Chestnut v. Shane, 16 Ohio, 614; 3 W. L. J. 360; Newell v. Anderson, 7 Ohio St. 12; Brown v. Farron, 3 Ohio, 140; Connell v. Connell, 6 Ohio, 358; Carr v. Williams, 10 Ohio, 305; Good v. Zercher, 12 Ohio, 364; Meddock v. Williams, 12 Ohio, 386; Ward v. McIntosh, 12 Ohio St. 231; Browder v. Browder, 14 Ohio St 589 ; Carney v. Hopple, 17 Ohio St. 39; Ludlow v. O’Neil, 29 Ohio St. 181; Miller v. Hine, 13 Ohio St. 565 ; Henry v. Henry, 27 Ohio St. 121; Roads v. Symmes, 1 Ohio, 146; Baldwin v. Snowdon, 11 Ohio St. 210 ; 2 Kent Com. 138-143. The Kentucky justice had no authority to take an acknowledgment. Carney v. Hopple, 17 Ohio St. 39 ; Elliott v. Pierce, 20 Ark. 508 ; Bramhall v. Seavey, 28 Me. 45.
    But it is said there was no need of an acknowledgment, The claim is directly-in the face of the statute and contrary to the law. 1 Chase, 4-85 ; Dunlap’s Laws of Pa. 50; Kirk v. Dean, 2 Binney, 345; Watson v. Bailey, 1 Binney, 470; Trimmer v. Heagy, 4 Harris, 484; Willing v. Peters, 7 Barr, 288; McIntire v. Ward, 5 Binney, 296; 4 Serg. & Rawle, 272; 6 Serg. & Rawle, 49; Fowler v. McClurg, 6 Serg. &, Rawle, 143.
    II. Statute of limitations.
    Martha C. Dudley became entitled to these lands, on the-, death of her' father, in 1804. She then acquired a fee, and= she married Ambrose Dudley on November 13, 1816, She died, intestate, in October, 1834, having had issue bom alive. Ambrose Dudley survived her, and lived until May, 1875, when-he died. The right of action, then, did not accrue to the heirs-of Mrs. Dudley, until May, 1875.
    Md-s. Dudley, at and before, and subsequent to her marriage,was seized in law and in deed in fee. No actual entry on the' premises was necessary to perfect her title. It was as perfect before as it would be after entry. Borland v. Marshall, 2 Ohio St. 318, 319.
    By her marriage with Ambrose Dudley, he became seized of a life estate in the property jure uxoris; he was entitled to the possession and to the rents and profits during their joint lives, with the inchoate right to become tenant by the curtesy, if he should outlive her. Canby v. Porter, 12 Ohio, 80; Borland v. Marshall, 2 Ohio St. 308; Merritt v. Horne, 5 Ohio St. 307; Thompson v. Green, 4 Ohio St. 216; Watkins v. Thornton, 11 Ohio St. 367; Clark v. Clark, 20 Ohio St. 128, 136; 2 Kent Comm. No. 130, 131; Mitchell v. Ryan, 3 Ohio St. 377; 3 Humph. 267; 8 Id. 298; Denny v. McCabe, 576; Jackson v. Sellick, 8 Johns. 263; 1 Washb. on R. P. 179, § 45 ; Jackson v. Johnson, 5 Cowen, 74 ; 1 Greenl. 6 ; 34 Me. 151; 5 Grat. 499; 2 Pick. 519 ; 31 Ill. 219 ; 83 Ill. 369; 2 Wend. 357; Foster v. Marshall, 2 Poster N. H. 491; Childers v. Bumgarner, 8 Jones Law, 297; Gage v. Smith, 27 Conn. 70-73; Dugan v. Gittings, 3 Gill, 138; Gregg v. Tesson, 1 Black U. S. 150; 2 Cold. 641; 5 Ired. 634; 12 Pa. St. 122 ; 82 Pa. St. 86; 83 Pa. St. 80; 16 Pick. 165.
    But it is claimed that Ambrose Dudley was disseized by the transfer wliicli he made when he united with the guardians in their deeds. This is not so, for as to all the deeds we may say either that they were written licenses from Ambrose Dudley to the several parties to enter the premises described in the papers, and hold the seizin under him for the duration of his estate, or so long as his title existed, or they were contracts on the part of Ambrose Dudley to convey to the grantees his estate with its contingencies, or, as in the case of the Broadwell deed and {¡he Carr deed, for lots 8 and 10, they wore conveyances of his estate with its contingencies.
    ■ The grantees entered under these contracts, licenses or deeds, and there and then claiming under them, have held and enjoyed the estate of Ambrose Dudley in the land, from 1818 and 1820 down to the day of his death, in 1875. Then the estate of which Mrs. Dudley was seized came to her heirs clear of the life estate of their father.
    ■ - There has been no disseizin; no act by which Mrs. Dudley’s estate has passed, requiring an entry at her death by her heirs. Indeed, if there had been a disseizin during the life of the husband, it would not have that effect and require an entry until the death of the husband, as is clear from the authorities cited. And see 2 Blackstone, 120, 134.
    Whatever the deeds were, as to Dudley, licenses to enter and enjoy his estate, or contracts for the conveyance of his estate, or deeds from him conveying his estate, in any event, the grantees took the deeds with full knowledge that they were not the deeds of Dudley and wife, and that they did not affect the estate of Mrs. Dudley, but only the life estate of Ambrose Dudley; that it was not the deed of Mrs. Dudley, and was void as to her and her estate. The purchasers must be held to have known the law according to which they had acquired only the life estate of the husband, for they were sufficiently advised by ' the recitals in the deeds and facts of the sale. Sullwant v. Franklin Co., 3 Ohio, 89 ; Williams v. Sprigg, 6 Ohio St. 585; Wilson v. Chalfant, 15 Ohio, 248 ; Barr v. Hatch, 3 Ohio, 527; Carr v. Williams, 10 Ohio, 309 ; Hornbach v. C. & Z. R. R. Co., 20 Ohio St. 81.
    How, then, can there be a disseizin? What is a disseizin? It is not a mere1 change of possession, but it is where the entry is intended to usurp the: possession, and to oust another of his freehold. Towle v. Ayer, 8 N. H. 57; 6 Com. Dig. 274, 278.
    Tt is a wrongful dispossession, and to constitute a disseizin, there must be a tortious entry and an expulsion. Jackson v. Rogers, 1 Johns. Cas. 34; Towle v. Ayer, 8 N. H. 57; 4 Com. Dig. 39; 6 Com. Dig. 277, 278; Angell on Limitations, §§ 385, 386, 390, and notes.
    The grantees then were not disseizors. They Avent into possession claiming under Dudley and by his authority and consent. They did not disseize him or oust him wrongfully of his possession or the curtesy. They claimed under him and by virtue of his title as husband.
    In each special agreement it was admitted, that the persons named therein, through whom the defendants in each case claim title, had no other title, interest or estate, than Avas acquired by the grantees named in the deeds respectively.
    Now, where a party enters into the possession of land under a deed, and the present owner claims the title and the possession under the same, he cannot be permitted to set up a title ip contradiction to the title under Avhich he entered. Jackson v. Alexander, 3 Johns. 489; Hart's Lessee v. Johnson, 6 Ohio; 89; Jackson v. De Watts, 1 Johns. 157; 19 Johns. 202; 52 Miss. 367.
    As to the conveyance in fee, where the grantors had a life' estate onljq the law of Ohio is settled in accordance with the • enlightened vieAvs of Chancellor Eent. The conveyance is good for the estate which the grantor has, and does not work a forfeiture. Carpenter v. Denoon, 29 Ohio St. 319.
    III. Correction of the deeds.
    What the constitution may authorize is one thing, but what the laAv has authorized and provided for may be quite a different thing. The law furnishes the rule to guide us, and that provides for errors, defects or mistakes, in the deed of husband and wife, executed and intended to convey lands, etc. See 15 Ohio Laws, 183.
    There is but one deed in the eight Avhich can, by any stretch of language, be called the deed of husband and Avife. This i§ the Carr deed, for lots 8 and 10. All the others lack the essential elements of q deed. To attempt to correct these seven deeds, to make them operate as deeds of husband and wife, would be to make deeds where no deeds exist.
    As to six of the deeds, they are not acknowledged by Ambrose Dudley. This, of itself, is enough as to them, for they are not deeds of husband and wife, and they are not deeds passing Mrs. Dudley’s estate. Rut, beside this, they have the further defects of not being acknowledged by Mrs. Dudley, as the certificates show, nor is there any proof whatever on which to base the correction of these certificates, even if the correction would help to make them of any value.
    As to the Rroadwell deed, it is neither signed nor sealed by Mrs. Dudley.
    Perhaps the deed to Carr, for lots 8 and 10, may be called the deed of husband and wife; if so, it is the only one which can be so called. Its defect consists in the want of Mrs. Dudley’s acknowledgment. If this court should be of the opinion that there is an acknowledgment at all, still even then it is defective in such a way that it cannot be corrected. The law in Ohio on this point, as well as upon the necessity for having a deed of husband and wife before any correction can be attempted, is well settled in Ohio. Miller v. Hine, 13 Ohio St. 565; Carney v. Hopple, 17 Ohio St. 39; Smith v. Turpin, 20 Ohio St. 478.
    Rut even if we were to assume that these deeds were such as came within the law and could therefore be corrected, still, proof is necessary, to the same extent as to the deed of others. Lyman, v. United Ins. Co., 2 Johns. Ch. 630; Davenport v. Sovil, 6 Ohio St. 459, 464; Clayton v. Freet, 10 Ohio St. 544; Henry v. Henry, 21 Ohio St. 121.
    In the cases at bar, there is no proof of any kind whatever, that Mrs. Dudley ever did acknowledge any of these deeds. There is no proof that Ambrose Dudley ever acknowledged any of tiróse to which the certificate is lacking as to him. There is no proof that there was any mistake, error or defect such as the statute contemplates. And before any correction could be made even if authorized by the law, a clear case must be made on the evidence. According to the rules laid down in the authorities above cited, the court will find that there is no proof to justify the change of a word in any of these deeds, nor is there any evidence of a mistake, defect or error.
    [The respective counsel for plaintiff and defendant in error each filed elaborate briefs. The points made on the respective sides being substantially the same a separate report of each brief is deemed unnecessary.
    The foregoing argument is also in part applicable to and intended for the case of Koltenbrock v. Cracraft, immediately following this one. — Rep.]
   Johnson, J.

1. As to the judicial proceedings: Mrs. Dudley was under eighteen years of age when these proceedings were had, and when the sale was made, but over eiglitee7i when the deed was executed. By the statute then in force, she would reach her majority at twenty-one, or October 9,1820. By the statute under which this deed was executed (1 Chase, 484), she, being a married woman, and, at the date of said deed, March, 1818, “not less than eighteen years of age,” had capacity, her husband joining, to make a valid conveyance, notwithstanding her minoritju

Mrs. Dudley was an infant feme covert at. the time these judicial proceedings, sale and conveyance were had.

For the purposes of this case we may assume that the court of common pleas, sitting as a court of chancery, had the power in a proper case, to convert the wife’s lands into money for her support. Under what circumstances this would be done, or what would constitute a proper case, we need not here determine, as it is manifest from the petition and the fragmentary proceedings disclosed, that this was a proceeding under the statute, and not an appeal to the chancery powers of the court, and was so treated by the court.

It cannot be claimed that any attempt was made to invoke the chancery powers of the court. The application for an order of sale was based uj>on the statute (2 Chase, 928).

The 36th section (2 Chase, 935), conferred upon the court the power to appoint guardians, whenever it conceived it to be necessary, to all minors within the county, and on good cause shown to authorize guardians to sell all or part of the real estate of their wards, and also to authorize guardians heretofore chosen, or appointed to do the same. It was provided that minors living out of the State, should have the benefits of this provision if their guardians should give security approved by the court. It was further provided that in the sale of real property by guardians they should be governed by the same regulations 'as are required of administrators in such sales, under the same act, but no sale could be made unless the court was satisfied that such sale is necessary for the support or education, of such ward or wards, nor shall any sale in such case extend further than may be required for the purpose aforesaid.”

Sections 33, 3é and 35 regulated the sales by executors and administrators, and provided for conveyances. Section 35 provides that they “ shall by deed duly executed, convey to the person purchasing the property so sold, which deed shall vest the title in the purchaser as completely as though it had been conveyed by the deceased in his life time.” To apjfiy this provision to sales by guardians, mutatis muta/ndus, would render it essential to a transfer of title of the infant feme covert, that her guardiam, should convey to the purchaser. If, however, the order to sell was valid, the husband and wife, she being of lawful age, might execute the conveyance, as provided by the statute for the conveyance of a wife’s estate, thus ratifying the act of her guardian, her husband, or of the court.

If it be conceded that a court of chancery might, in a proper case, convert the wife’s land into money for her support, notwithstanding her husband’s liability to support her out of his own estate, and the rents and profits accruing to him in virtue of his marital right from her land, yet it seems clear, that in order to authorize such power, it should appear that these resources of the husband were inadequate, and that such conversion was a necessity. Where such a case is made, equity would in all essential matters follow the statute for the projection of minors.

Neither the statute, nor any principle of equity, of which we are acquainted, would allow a liusband -to constitute himself a guardian of his infant wife’s lands, anj without security, and upon ex parte hearing permit him to convert them to his own use. The petition to sell this land was beyond controversy an appeal to the probate, not to the chancery powers of the court. It is filed by the guardians of the other three children, and by “ Ambrose Dudley, husband of Martha Catharine Dudley.”

It represents that some of the petitioners are already in advance for the support of'their wards, and to meet such advances, and for the future support of the heirs, an order tt> sell the lands is prayed for. The reasons given for a sale and the relief sought, could not apply to Ambrose Dudley, for, being husband, and bound to support his wife, the money expended by him for that purpose could not be regarded as advances. His marital rights gave him all her personalty, choses in action reduced to possession, and the rents and profits of her real estate, coupled with the legal obligation to maintain and support her at his own expense.

Neither a court of equity nor this statute conferred upon a court the power to absolve him from this obligation.

After a careful consideration of the terms of the statute, and the authorities and arguments, we have reached the conclusion that it did not confer upon the husband the right to constitute himself guardian for his wife for the purpose of selling her land, nor upon the court the power to grant an order of sale on his application as her husband.

It seems to be conceded that by the marriage the guardianship of William Irwin terminated in fact, if not in law. The exercise of any duties as guardian over either the person or property of his ward would after marriage be incompatible with the marital rights and obligations of the husband as the law then stood. '

William Irwin was appointed guardian August 3,1814. The act of 1816 took effect May 1, 1816. Mrs. Dudley was married November 13, 1816. This statute provided: 1st, for the appointment of guardians of minors; 2d, to authorize them to soil lands of their wards; and 3d, to authorize “ any guardian heretofore chosen or appointed ” to sell the land of his ward. The guardian heretofore chosen or appointed was William Irwin. If we concede that his office had terminated by the marriage, except for purposes of settling his trust, the husband by virtue . of his marital rights was not such a guardian as the law contemplated, and was not authorized to sell his wife’s land. Whiteacre’s case, 4 Johns. Ch. 378; Bishop on Married Women, § 585 ; Ludlow’s Heirs v. Johnson, 3 Ohio, 561; Adams v. Jeffries, 12 Ohio, 253; Sheldon v. Newton, 3 Ohio St. 494; Perry's Lessee v. Brainard, 11 Ohio, 442; Lessee of Goforth v. Longworth, 4 Ohio, 130; Newcomb’s Lessee v. Smith, 5 Ohio, 447; Miami Exp. Co. v. Halley, 7 Ohio, pt. 1, 11.

The petition for the sale of the land being presented by one not authorized to present it, without any showing that would authorize a court of chancery to intervene, invested the court with no power or jurisdiction to grant the order. Freeman on Yoid Judicial Sales, §§10,11, and cases cited.

II. As to the validity of the deed, and its effect as a conveyance of the wife’s estate.

With its effect, as a conveyance, or contract to convey, the Tmsbcmd’s interest, in these lands, we are at present not concerned.

Whether this deed be regarded as based upon the order of sale, and in execution of it, or as the independent act of husband and wife, under the act of 1805, is not important, as in either case the deed must be duly executed, and this depends upon the second section of the act of 1805. 2 Chase, 935, § 35; Miami Exp. Co. v. Halley, 7 Ohio, pt. 1, 11.

If under this section an acknowledgment by the wife, and a certificate thereof in due form, is essential to a valid conveyance, then this deed is fatally defective.

Upon this point we adopt the language of the learned judge in Ward v. McIntosh, 12 Ohio St. 231, 241, as equally applicable to section 2 of the act of 1805 :

“ In Silliman v. Cummins, 13 Ohio, 118, it was held to be the settled law of this state, that the interest of a married woman in real estate could only be transferred by a full compliance with the statute authorizing such transfer, and that unless the statutory provisions, from which alone her power to act is derived, are complied with, a deed executed by her will be inoperative and void. And although some of the points adjudged in that case, in regard to the legal effect of curative statutes, and the great strictness in reference to the certificate which it seems to enjoin, have been shaken in the subsequent case of Chestnut v. Shane’s Lessee, and four other cases, reported with it in 16 Ohio, 599, et seq., it is still undoubtedly true, that in order to make the deed of a married woman effective to transfer her estate or to bar her dower, there must have been a substantial compliance with all the requirements of the statute.” .

In the prolonged controversy referred to by Judge Peck, and in the masterly review of this subject by Judge Hitchcock in Ruffner v. McLennan, 16 Ohio, 639, wherein all previous legislation was noticed and construed, the point was not, whether an acknowledgment was necessary, for that was, as is claimed, taken for granted, but what was a proper certificate thereof. Some of the decisions prior to that date were to the effect, that if the certificate did not specifically state the facts constituting such an acknowledgment, it was void; while others held, that if the certificate of the officer, in general terms-, showed that he had performed his duty, it was sufficient, as in such case, the court woiild presume all the steps had been taken. Brown v. Farran, 3 Ohio, 140; Ruffner v. McLennan, 16 Ohio, 650.

Since the case of Ward v. McIntosh, the rule has been adhered to, which is there stated, that to make the deed of a married woman effective to transfer her estate, or to bar her dower, there must have been a substantial compliance with all the requirements of the statute.

Aside from the fact, that the husband did not acknowledge this deed, the certificate fails to show, that the deed was read or otherwise made known to the wife by the justice, on a separate examination, or that she did voluntarily, and of her own free will and accord, malee, seal, and as her act and deed deliver the same, &c.

Whether we test this acknowledgment by the act of 1805, or by tbo law of Kentucky, as shown in the agreed statement of facts, the result is the same, so we are remitted to the principal question mooted in the argument, namely: was an acknowledgment, essential to transfer the wife’s estate ?

Section 2 of the act of 1805 relates to conveyances by husband and wife, as follows:

“ That where any husband and wife shall incline to dispose of and convey the estate of the wife, or her right in or to any lands, tenements, or hereditaments, whatsoever, it shall' and may be lawful for the said husband and wife — she being not less than eighteen years of age — to malee, seal, deliver and execute any grant, bargain and sale, lease, release, feoffment, deed, conveyance or assurance in the law, whatsoever, for the lands, tenements and hereditaments intended to be by them passed and conveyed, and after such execution, to appear'before a judge of the supreme court, or court of common pleas, or a justice of the peace, and acknowledge the same, which judge or justice of the peace is hereby authorized and required to take such aclmowledgment, 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 or conveyance shall be and the same is hereby declared to be good and valid in lem, to all i/n-tents and purposes, as if the said wife had been a sole and not a covert at the time of such sealing and delivery, and the judge or justice taking such acknowledgment shall, under his hand and seal, certify the same upon the back of the deed or conveyanceP

This section took the place of the territorial law of June 26, 1795 (1 Chase, 186) which it repealed (1 Chase, 486). As the act of June 18, 1795 (1 Chase, 167), made no provision for deeds by married women, the act of June 26 was adopted almost literally from the laws of Pennsylvania of 1770. 1 Dunlop’s Laws, 50.

Counsel for defendants below concede that there are many Mota, as they term them, to be found in the decisions of this court, to the effect that a deed under this section should be acknowledged, but they claim that this point has never been directly before the court, and that it has been “taken for granted ” that such is the law, and for this reason they ask a reconsideration of the question.

It is true, as is said, that it sometimes happens, that principles the most firmly established entirely elude observation until some controversy arises, which directs the mind to the precise point, and hence that is often taken for granted which proves to be unsound.

With this fact in mind we have carefully examined the learned and acute arguments adduced to show that the construction that this statute has uniformly received for seventy-five years is erroneous. We cannot adopt this conclusion. It is unsupported by .the terms of the act, which declares that such an acknowledgment is essential to a valid conveyance by a married woman. This section requires a joint acknowledgment before the officer, and that he shall make known to her upon a separate examination, the contents of the deed, and that she shall then declare that she did voluntarily seal and as her act and deed deliver the same without any compulsion of her husband. When all this is done, “ every such deed or conveyance shall be and the same is here by declared to be good and valid in law.”

When not so executed, the inevitable conclusion is, it is not as to her good and valid in law. This point as to a separate examination was before the court in Carney v. Hopper, 17 Ohio St. 39, where it was held :

“ 1. A conveyance, by a husband and wife, of lands of the husband in this state, executed in another State, but not in conformity to the laws of such State, or the statute of this state, will not bar the right of the wife to dower in such lands after the decease of the husband.

“ 2. Where a husband and wife joined in.the conveyance of the lands of the husband under the act of 1805, and the acknowledgment of the deed does not show that the wife was examined sepai'ate and apart from lier husband,’ &c., as required hy the second section of the act, the deed is insufficient to bar the widow’s right of dower in the lands so conveyed.”

In that case the deed was held void, because not executed according to the second section, of the act of 1805, for want of separate examination and acknowledgment of the wife, and a proper certificate by the justice, nor was it according to the law of the state where executed, that law requiring that such acknowledgment shall be taken by two justices.

The key-note of that case is, that “ without a compliance with the second section of the act of 1805, the ackowledgment was void, even though made before an officer authorized to make it, “for it is only under the protecting provisions of the statute that the conveyances of married women are {declared to be good and valid in law.’ ’ ’ 17 Ohio St. 47.

The point was also made that the deed was defective, because there was but one witness, but that defect was not alluded to by the court; hence we are warranted in saying, that the question now before us was directly decided in that case. This decision ought to be conclusive. It is the manifest meaning of the words of the statute as understood and accepted in many decided cases prior to that case, and accords with the construction given by the courts of Pennsylvania to the act of 1770 (1 Dunlop’s Laws, 50), from which this section was borrowed. Ruffner v. McLennan, 16 Ohio, 639 ; Worthington v. Young, 6 Ohio, 313 ; Foster v. Dennison, 9 Ohio, 125; Watson v. Bailey, 1 Binney, 470; McIntire v. Ward, 5 Binney. 296; Evans v. Commonwealth, 4 Serg. & Rawle, 272 ; Watson v. Mercer, 6 Serg. & Rawle, 49; Fowler v. McClurg, 6 Serg. & Rawle, 143.

Our conclusion, therefore, is, that the deed in the case at bar does not upon its face divest the heirs of Catherine Dudley of the legal title to this land.

III. This brings us to the last question in the case. Is this defectively executed deed curable under the provisions of the act of 1857 or of 1859 ?

Prior to the act of 1857 it was the settled law of this state that chancery would not compel a married woman to execute a perfect deed, though by mistake it failed to conform to her intention when executed. Purcell v. Goshorn and wife, 17 Ohio, 105.

By that act the courts are “ authorized and empowered to correct, amend and relieve against any errors, defects or mistakes occurring in the deed or other cowveyance of any husband and wife heretofore or hereafter to be executed and intended to convey or incumber the lands or estate of the wife or her right of dower in the lands of her husband in the same manner and the same extent as said courts are or shall be authorized or empowered to correct errors, mistakes or defects in the deeds or conveyances of any other persons”

By this statute courts were authorized to correct errors, defects or mistakes of a married woman in a deed or conveyance of any Imsband and wife to the same extent as if she were a femme sole, and to make this new power more effective it was extended to conveyances heretofore as well as hereafter to be executed.

In terms this statute clothed the court with the same power to correct,- amend and relieve against any, errors, defects and mistakes in deeds or other conveyances of husband and wife, as against the wife, as it possessed against other persons, and expressly made this power retroactive.

This power over a married woman was expressly limited to “ deeds or other conveyances of husband and wife.”

■ Hence it was held, that a deed by a married woman, in which her husband did not join, was a nullity, and as a contract for a conveyance was alike void, and that such a deed could not be cured under this statute. Miller v. Hine, 13 Ohio St. 565.

This is manifestly so, for the obvious reason, that it was not a deed of “ husband and wife ” but of the wife alone, hence not within the terms of the power given.

In that case, as well as in the case of Goshorn v. Purcell, It Ohio St. 646, it was further held that acticle 2 of section 28 of the constitution did not authorize the legislature to give power or capacity to a married woman, which she did.not possess,when the error, omission or mistake occurred, but only to authorize courts to cure such defects as occurred in doing an act which she was by law authorized to do.

Thus, in Goshorn v. Purcell the failure to insert the wife’s name, as a grantor of her land, was cured. To the same effect is Smith v. Turpin, 20 Ohio St. 478.

So, the omission of the officer to certify the separate examination of the wife, in a deed in which her husband joins, may'be cured. Kilbourne v. Fury, 26 Ohio St. 153.

Carney v. Hopple, supra, was the case of a deed defectively executed before a single justice of the peace in Kentucky, where the certificate did not show the separate examination, and acknowledgment by the wife. The defect was treated as curable, but was not cured for want of proof showing that the. provisions of the statute had actually been complied with. There was no proof that the officer did omit anything that was in fact done.

Where there is nothing in the deed tending to show that anything was omitted by mistake, the court will not, in the absence of proof, presume such omission. Henry v. Henry, 27 Ohio St. 121; Ludlow v. O’Neil, 29 Ohio St. 181; Warner v. Callender, 20 Ohio St. 190.

The act of 1859 (2 S. & C. 1172) was somewhat broader in its objects and terms than the act of 1857. It extended the power of the court in this respect, to any instrument in writing,” or to any proceeding not in strict conformity to law,” where, by reason of inadvertence or otherwise, of any officer, party or corporation there is an omission, defect or error. In such cases the courts are authorized to give full effect to all such instruments and proceedings.

The revision of these curative statutes took effect September 1, 1878 (75 O. L. 782), and was in force when this action was commenced and decided. This revision was adopted as part of the revised statutes, sections 5867 to 5872.

It will appear by a careful comparison of these several enactments, that several changes have been made in punctuation and in the words employed, but as the act of 1857 is substantially the same as section 5872, as it stood in the act of 1878 (div. 7, ch. 16, § 6), these changes do not affect this case, and need not now be noticed.

The constitution (art. 2, § 28,) while prohibiting retroactive legislation, does not prohibit the passage of laws of purely a remedial character, although they relate to past transactions, nor does it prohibit any retroactive general law, authorizing courts to carry intb effect- the manifest intention of parties and 'officers, by curing omissions, defects and errors in instruments and proceedings.

It expressly empowers the legislature by general laws to authorize courts “ to carry into effect, upon such terms as may be just and equitable, the manifest intention of parties and officers, by curing omissions, defects and errors in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

Under this constitutional provision, the act of 1857 was passed, authorizing the correction of deeds or other conveyances of husband and wife, heretofore as well as hereafter made as against the wife to the same extent as against any other person.

In terms, therefore, its retroactive provision embraces the deed before us, so that, if it is the deed of “husband and wife,” within the terms of the statute, and if its defect arises out of the omission, error or mistake in its execution, the court has power to carry out the manifest intention of the parties upon just and equitable terms.

The defect in this deed is found in the acknowledgment alone.

It was jointly signed, sealed and delivered by husband and wife, in the presence of attesting witnesses. As against the husband it was a valid transfer of his title in his wife’s land. It was defectively executed, as a conveyance of the-wife’s estate, not being acknowledged as required by the second section of the act of 1805, or as provided by the law of Kentucky.

If, however, it was the deed of “ husband and wife ” within the meaning of the curative act, that is, her deed, as well as her husband’s, then the court has power to correct it, if a caso is made entitling the grantee or those in privity with him to that relief.

The object of the statute, as well as the constitutional provision, is to enable the courts to cure defective, not perfect,instruments.

The power to correct and cure a “deed or other conveyance of husband and wife,” on account of any error, defect or mis-' take therein, is co-extensive with the defect, and with the powers the parties themselves possessed. Whatever they could have done, and intended to do, the court can do, and whatever mistakes they or the officer have made, whereby the intention of the contracting parties has been defeated, may be cured. It is the power to cure and not a power to make deeds.

This curative act did not, however, give capacity to a married woman to execute a deed, in any other mode than that prescribed by the deeds act. Goshorn v. Purcell, 11 Ohio St. 646; Miller v. Hine, 13 Ohio St. 565.

Under the act of 1831, it was essential to the validity of a deed of a married woman, that her husband should join in the execution u/nd acknowledgment, before an officer, though it is not important that they should do so simultaneously, nor before the same officer, nor that the acknowledgment of each should appear by a single certificate. Ludlow v. O'Neil, 29 Ohio St. 181; Williams v. Robins, 6 Ohio St. 510 ; Newell v. Anderson, 7 Ohio St. 12.

The act of 1831 (§ 1), which governs as to men and unmarried women, requires signing, sealing and acknowledging in presence of two witnesses, and that the signing and sealing shall also be acknowledged before an officer. Section 2 relates to deeds of husband and wife, and in adcliUon to such signing, sealing and acknowledgment by husband and wife, requires the separate examination and acknowledgment of the wife.

By section-1 of the act of 1805, a deed by a person, other than a married woman, may be acknowledged before an officer, or proven by the subscribing witnesses, before such officer. The acknowledgment before an officer being essential under the act of 1831, but not so under the act of 1805, if the deed was duly proved by the subscribing witnesses before such officer.

Chestnut v. Shane, 16 Ohio, 602, arose under the act of 1818. In that case there was a joint acknowledgment, of husband and wife, and the act of 1818, like the act of 1831, made such acknowledgment an absolute, requirement in a deed by a man, or unmarried woman. 2 Chase, 1041.

In Ludlow v. O’Neil, the acknowledgment of the wife was taken and certified in Ohio, and that of the husband afterwards before another officer in California, and it was held, that although the wife’s separate execution standing alone was void, yet it was cured by the subsequent execution by the husband.

The reason for holding the joint execution by the husband and wife necessary, is that the wife may have that protection which would be afforded her by the care and solicitude of the husband for her welfare, and if, as in Miller v. Hine, he has done no act showing his assent to the conveyance, the deed will not be reformed as against her, as it is not his deed, though as to her the certificate is in due form, except as to a joint acknowledgment. Chestnut v. Shane, 16 Ohio, 602, 603.

At common law this was a good deed, as against Dudley, by a mere sealing and deliveiy. By section 1 of the act of 1805, it was valid as to him, if signed, sealed and acknowledged in' presence of two subscribing witnesses, and by acknowledgment or by proof before any of the officers named.

For the wife’s protection section 2 of the act made it lawful, if they inclined to dispose of her estate, or her interest in her husband’s, to make, seal and execute the conveyance, and afterwards to appear before the officer and acknowledge 'the same, in doing whereof he shall examine the wife separate and apart from her husband.

By making, sealing and delivering, jointly with the wife, he afforded her ah the protection contemplated by the act. By her separate examination she was shielded from his undue influence.

This acknowledgment, before the officer after executing and delivering the deed, could afford her no additional protection. Her power or capacity under the statute to convey,Avas complete when he joined with her in making, sealing and delivering the instrument, which as to him operated as a conveyance, and, had no mistake occurred, her conveyance would have divested her title. Ford v. Gregory, 10 Benn. Mon. 175 ; Montgomery v. Hobson, Meigs, 437; Mount v. Kesterson, 6 Coldw. 452.

From this, we conclude, that under the act of 1805, if the deed upon its face shows that it has been jointly signed, scaled and delivered by husband and wife, so as to convey his interest, and acknowledged by the wife, though the certificate thereof is defective, it is the deed of husband and wife, within the meaning of the act of 1857, and if there is an error, mistake or omission whereby it did not carry out the intention of the grantors, it is within the power of the court to correct it.

The object of the statute is to enable courts to carry out the intention of the parties, both husband and wife, by curing errors, defects and mistakes in their deeds or other conveyances made> by themselves or the officer taking the acknowledgment, by which this intention was defeated.

Obviously, therefore, the words “ deed or other conveyance,” in the statute, does not mean a valid instrument, but one infected with some infirmity, arising out of an omission or mistake, which defeats the intention of the parties. The remedy is adequate to relieve the defect. "Whatever the parties had power to do, and intended to do, the court can require to be done, in order to effectuate the intention and in furtherance of justice.

In the exercise of this power the court is clothed with the same authority over the deeds or other conveyances of a married woman, as if she were single.

If, therefore, Mrs. Dudley intended to part with the fee, and had all the protection her husband’s presence, counsel and judgment could afford her against those with whom she was dealing, and all the benefits of a separate examination, so as to guard against undue influence by him, she was in a condition competent to convey, and any omission or inadvertence of herself or the officer which made her. act ineffectual may bo cured.

The only remaining questions are, did she intend to convey the fee, and if so, can the errors of the Kentucky justice, who was not authorized to act alone, be cured %

The agreed statement of facts are ample to convince the court that both Mr. and Mrs. Dudley intended to convey the land in fee, and that this intention was defeated by the defective acknowledgment alone.

The judicial proceedings, the appraisement and sale at the full, value, the receipt of the purchase-money, the recitals and covenants of warranty in the deeds, the delivery of possession, and the attempt to acknowledge by her, in which she relinquishes all her title, are cogent facts in support of this conclusion.

These facts also show that, in behalf of the purchaser and those claiming under him, it is just and equitable that the relief should be granted. But it is said the defective acknowledgment before a single justice in Kentucky cannot be cured.

It is said, as was suggested in Carney v. Hopple, that as he was not authorized by law to make a certificate, it is not admissible io prove any fact it contains, but the agreed statement supplies the proof that Mrs. Dudley did sign, seal and acknowledge, as shown by the deed. This proof appears in the 4th clause of the agreed statement of facts, wdiich applies to all the deeds, and is as follows:

“VI. The following deeds which wore respectively executed and acleno-wledged at the times and places and in the manner and form and by the several persons, just as appears from the deeds themselves and were respectively delivered to the persons named as grantees therein, and who took possession thereunder of the lots of land described in said deeds; which deeds were recorded in the records of Hamilton county at the time and in the place stated with each deed, to wit.”

That case, like this, was an acknowledgment before a single justice in Kentucky, where the certificate omitted the separate examination of the wife, and relief was denied on the ground that there was noywo/that there was such separate examination. It is, in that case, impliedly conceded, that if there was competent proof of such separate examination, as there is in this case,the deed would have been cured.

If, by mistake, the acknowledgment was taken before an officer not authorized to act, and, by reason thereof, the conveyance fails of its intended effect, we see no reason why it may not be cured.

Thus, in Spinning v. Home Build. Association, 26 Ohio St. 483, the acknowledgment of an act of incorporation, made before a notary public, who was not authorized to take it, was held curable under the act of 1859.

The real question is, did the party intend to convey? If he did, and made á mistake, which defeated that intention, it may be cured, whatever its form or character, if justice and equity demands it. This is the rule as to all persons sui juris, independent of the statute, and the object of the statute was to make this power retroactive, and to extend it to deeds or other conveyances of married women.

This deed upon its face shows that the parties undertook jointly to convey, and that the wife separately acknowledged and relinquished all her right in the land, but by her mistake, as we may presume from her manifest intention to part with her title, she did so before an officer not authorized to act, and by his mistake or omission the certificate failed to embody a substantial statement of all the material matters required.

~We think the plaintiff in error is entitled to have relief as prayed for.

Judgment reversed and judgment for plaintiffs in error on crosspetition.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Koltenbrock v. Louisa D. Cracraft et al.
    1. When a statute, wkicli repeals a prior statute on tlie same subject, is to take effect and be in fore «from and after a day named, it does not take effect until the expiration of the day named.
    2. The curative provisions of the act of 1857 (1 S. & C. 694) as revised (75 O. L. 788), extends only to deeds or other conveyances of husband and •wife, defectively executed by reason of some error, defect or mistake. It. does not authorize the court, in the exercise of its chancery powers, to compel a married woman to execute a deed in the specific performance of her contract, as if she were & femme note.

      3. A deed for tlie wife’s lands, duly executed and acknowledged by tbe husband, under the act of 1820 (2 Chase, 1189), but not signed or sealed by the wife, is not her “deed or other conveyance,” within tbe curative provisions of said act (75 O. L. 783, § 6), though privately acknowledged by her before an officer.
    4. Neither is it her “instrument in writing,” within the meaning of the act of 1859 as revised. 75 O. L. 782.
    5. Where the husband becomes seized of an estate by the curtesy, and during the life of his wife assumes to convey tbe fee of the land, and puts his grantee in possession, the conveyance of the husband is a valid transfer to the exteut of his estate, and if he survive her, the statute of limitations does not commence to run against her heirs until the termination of his life estate.
    Error to the Superior Court of Cincinnati.
    This case was considered with Dengenhari v. Cracraft, just reported.
    The agreed statement of facts in that case is applicable to this, and need not be repeated.
    The rights of the parties in this case depend on the validity and effect of a deed to Samuel Broadwell, acknowledged and delivered in 1820. He was a purchaser undertbe same judicial proceedings and sale as in Dengenhart’s case.
    In this case the Broadwell deed was not signed and sealed by Mrs. Dudley, but was acknowledged by her in the same defective form as the Park deed, and before the same officer, and was subsequently duly acknowledged by her husband.
    The additional facts will be found in the opinion.
    The counsel in this case are the same as in Bcngenharri v. Cracraft, the case immediately preceding, and such parts of the argument in that case are referred to as are applicable to this.
   Johnson, J.

This deed was dated May 1, 1818, and, upon its face, was signed and sealed by all the grantors except Mrs. Dudley, though her name was in the granting clause, and there was a blank space for her name, with a scroll seal opposite. It was, however, acknowledged by her, June 20,1820, in Kentucky, before a single justice, whose certifícate has the same defects as in Dengenhart’s case. August '20, 1820, it was duly acknowledged by her husband and the other grantors in proper form.

I. The act of 1805 (1 Chase, 484) was in force May 1, 1818, when this deed was signed and sealed by all the parties except Mrs. Dudley, as the act of 1818 (2 Chase, 1041), which repealed it, took effect 11 from and after ” May 1,1818. (2 Chase, 1043.)

As the act of 1820 (2 Chase, 1139), which repealed the act of 1818, took effect “from and after” June 1, 1820, it was in force when the deed was acknowledged.

II. Its validity as a conveyance of the title of Mrs. Dudley must therefore be determined by the act of 1820, as she neither signed, sealed or delivered the instrument while either the act of 1805 or of 1818 was in force.

In Dengenhart’s case we have held that, under the act of 1805, a deed which she jointly with her husband signed, sealed and delivered was ineffectual to pass her title by reason of a defective acknowledgment. A fortiori, this is so, under the provisions of the act of 1820, where the same defect exists in the acknowledgment, and where she did not join in signing and sealing the instrument.

III. Upon the facts stated in Dengenhart’s case, and under the act of 1805, it was held, that the Park deed was within the curative provisions of the act of 1857, being a defectively executed deed of husband and wife; and the same question now arises : is the Broadwell deed curable under the same statute ? We think not, for the reason that it is essential, under the act of 1820, to the wife’s capacity to make a valid conveyance of land, that there be a joint execution of the deed by husband and wife; by which I mean that it should be signed, sealed and acknowledged by both in the presence of the subscribing witnesses, and also acknowledged before an officer named, who shall in addition take the separate acknowledgment of the wife. Where the wife has not signed, sealed or acknowledged the deed in the presence of the witnesses, though her husband has done so, and where she lias not united with him in the acknowledgment before the officer, she has not had that protection by the counsel and advice of the husband -which is essential to her capacity to convey. Miller v. Hine, 13 Ohio St. 565.

For aught that appears,' or that we are authorized to presume, she may have omitted to sign, seal and deliver this deed, because of the counsel and advice of her husband. It was in no sense her act and deed until signed, sealed and acknowledged by her jointly with her husbaud in the presence of the subscribing witnesses. The subsequent separate examination by her, though it may be in due form, followed by the acknowledgment of the husband, could not make it her deed, or the deed of “ husband and wife ” under the act of 1857.

In equity, and as against persons sui juris, the court had, independently of the statute, the power to compel the specific performance of contracts to convey land whenever it was just and equitable, and this remedy included relief against errors, omissions and mistakes in deeds and other conveyances, whereby the intention of the parties was defeated. This remedy did not exist as against married women. Purcell v. Goshorn, 17 Ohio, 105. The act of 1857 expressly extended this chancery power over married women, in case of deeds or other conveyances of husband and wife,” but not to her other contract obligations. Under this act, equity is as powerless to relieve against a married woman’s mistakes or to compel her to perform her general contracts as it ever was, except only as to her deeds and other conveyances intended to convey or incumber her lands or the right of dower in her husband’s lands. Hence it follows that it is not enough to show a case for relief, against a person not under the disabilities of coverture, to bring it within the statute.

As against a married woman, it must appear, not only that she had contracted to convey, and that it is just and equitable she should be compelled to do so, but that she had intended to do so, but had failed to make a valid deed, by reason of some omission, error- or mistake. In short, equity will relieve against her defectively-executed deed, when she had capacity to make-it, but will not compel her to make a deed which she has never attempted to make.

Neither does this general powder exist under the act of 1859, for that, though broader in its terms than the act of 1857, extends only to “ instruments in writing,” or in a proceeding,” and. if this deed is not her deed, because never signed and sealed by her, it cannot be her “ instrument in wilting ” for the same reason. Whether the act of 1859 or the revision thereof, as in force when this case was tried, as it now stands, extends to instruments in writing by married women, we need not determine. It is sufficient for this case to say, that when it appears that she did net sign and seal the instrument, as the statute requires, nor attempt to do so, the court has no power to compel her to execute her contract to convey, however strongly the equity of the case may appeal for relief. This power extends only to the case of deeds or other conveyances which she has defectively executed. The acknowledgment only by her did not make it her deed, because she could only acknowledge when she had jointly with her husband signed and sealed the same as the statute authorizes.

III. The conclusion reached entitles the plaintiffs below to recover, unless barred lay the statute of limitations.

Dudley and wife had issue, Ethelbert L. Dudley, bom about 1819, and subsequently three other children.

The deed was executed in 1820, and possession was then delivered thereunder. Mrs. Dudley died in 1834, and the husband in 1875. If his estate by the curtesy passed to Broadwell in 1820, and he and those claiming under him could hold during his life, then this action is not barred. If, however, there was a right of entry to Mrs. Dudley in 1820, or to her heirs at her death in 1834, then it was barred.

We have then seizin in fee by Martha' Catharine Ludlow in 1804, marriage in 1816, birth of issue in 1819, conveyance in fee by the husband in 1820, death of the wife in 1834, leaving heirs, death of the husband in 1875, and ejectment by the heirs iu 1877. By the marriage the husband became seized, in right of his wife, during their joint lives. By the birth of issue in 1819, his curtesy initiate became vested, and he had a life estate if he survived her, in his own right.

There was no defect in this deed as to the husband. It was duly executed and acknowledged by him. It conveyed to the purchaser all his interest and estate.

This estate was a vested freehold during the joint lives, with an estate for life as tenant by the curtesy, in case he survived her. The purchaser entered into possession under this conveyance, and although it was ineffectual to transfer the wife’s estate in the fee, which was subject to this freehold of her.husband, its legal effect was to invest the purchaser with all the husband’s title.

Neither the wife during coverture nor her heirs after her death had, as against the vendee, a right of entry, for he held in right of the husband during the continuance of his estate. Canby v. Porter, 12 Ohio, 80 ; Lessee of Thompson v. Green, 4 Ohio St. 217 ; Clarke v. Clark, 20 Ohio St. 128 ; Denny v. McCabe, 35 Ohio St. 578; Jackson v. Johnson, 5 Cowen, 74; Lessee of Borland v. Marshall, 2 Ohio St. 308 ; Gillespie v. Worford, 2 Coldw. 641; King v. Nutall, 7 Baxter, 226; Vanarsdall v. Fauntelroy, 7 B. Mon. 401; Carpenter v. Denoon, 29 Ohio St. 398.

But it is claimed that by this conveyance by Dudley of the fee, when he only had a freehold for life, subject to the contingency of his wife surviving him, and by putting Broadwell in possession, he forfeited his estate, and that the possession by Broadwell was a disseizin, and worked a forfeiture of his particular estate, so that a right of entry at .once vested in the wife, or if this was not so it vested in the heirs at her death.

Such was the law of England in feudal times, where a tenant for life made a feoffment. This was based upon the feudal notion that by so doing he had renounced the feudal connection between him and 1ns lord, and the estate in remainder or reversion having been divested by the wrongful transfer to a stranger by livery of seizin, the remainder-man or reversioner might at once enter. '

But this rule only applied to feoffments with livery of seizin which amounted to a disseizin of the estate in remainder or reversion; but this rule did not pertain -where the conveyance was by bargain and sale, or any form of deed under the statute of uses, which was not accomplished by actual transfer of possession. Though the deed was in form a fee, it did not convey any more than the grantor had to part with. As this did not disturb the seizin of the reversioner or remainder-man, it did not work a forfeiture. 1 Washb. on Real Prop, ch. 5, § 1, par. 14, 15 ; 1 Cruise Dig. 109.

This common law doctrine of forfeiture, which had its origin in the feudal system, has never been recognized in this state. Carpenter v. Denoon, 29 Ohio St. 398.

Hence, we may say of Mrs. Dudley and her heirs, as was said in that case:

“ They had no interest in the life estate which preceded their estate in remainder, and no control over the premises during its continuance, and, therefore, the owner or owners of the life estate could not, in the nature of things, dispossess them," or hold adversely to them during the continuance of the life estate, within the meaning of the statute of limitations.”

Judgment affirmed.


author: Oicey, J.

text:
    Gallagher v. Fleury.
    A decree for divorce and alimony granted to a wife for tlie aggression of her husband, provided that there should he allowed to her, “as and for alimony, out of the plaintiff’s (the husband’s) real property, according to the statute in -such case made and provided,” certain real estate therein described. Held, that, under the act of 1858, 51 Ohio L. 877, § 7 (Rev. Stats. § 5099), she became vested, by force of the decree, with all the title which the husband had in the premises.
    Error to the District- Court of Franklin County.
    , Jane Fleury brought an action in the court of common pleas of Franklin county against William Gallagher and James Gallagher to recover possession of two lots of land in the city of Columbus, described in the petition, of which real estate she alleges she is the owner in fee simple.
    The defense to the action, as set forth in the answer, is, in substance, as follows:

      That Patrick Laughlin filed a petition in the court of common pleas of said county against his wife, Maria Laughlin, for a divorce. That she filed a cross petition in that case, asking for a divorce and alimony. That in 1866 the court decreed to said Maria a divorce, on her cross-petition, and in the same decree awarded to her alimony in these words : “ This decree being based on the aggressions of the plaintiff, it is further ordered, adjudged and decreed by the court, that there be and hereby is allowed to the defendant, Mai’ia Laughlin, as and for alimony, out of the plaintiff’s x-eal property, accordixxg to the statute ixx such case made and px’ovided, the following described real estate.” (Ilex’e the property is described as in 1 he petition in this ease.) It is further alleged in the answex-, that since said decx’ee was rendered Patrick Laughlin has died, leaving the plaintiff in this case, Jane Pleuxy, as his sister and heir; and that in 1876 Maria Laughlin died, leaving William Gallagher and James Gallagher, sons by a former husband, as her only heirs.
    In a reply it is alleged, among other things, that the real estate decreed to Maria as alimony was mox-e than one-lxalf in value of Patrick Laughlin’s real -estate, aixd that she took by the same decree all his personal property.
    A demux-rer to the answer having been overruled, and a demurx’er to the x’eply sustained, the caxxse was submitted to the court on the petition and answer, and the court rendered judgment in favor of tlxc Gallaghers.
    In 1877, the district court revex-sed the jxxdgment, and this petition in error was filed in this court to reverse the judgment of reversal.
    Harrison, Olds. Marsh, for plaintiff in error :
    Under the deci’eethe wife — Mi’s. Laughlin — took a. fee simple title to the land in controversy. 1 S. & C. 512; Whittier v. Whittier, 11 Foster, 452; 2 Bishop on Mar. & Div. 509; Reeves on Dom. Rel. 327.
    It was not necessary that the decree should contain words of inheritance in order to giving an estate in fee. 2 Kent Comm. 5; 4 Kent Comm. 6, 7; Tudor Ld. Cas. Real Prop. 623 ; Wash. R. P. 57-61; Broadwell v. Broadwell, 21 Ohio St. 657; Lessee of Thompson v. Hoop, 6 Ohio St. 481, 489 ; Smith v. Berry, 8 Ohio, 366 ; Howe v. Fuller, 19 Ohio, 51; Gholston v. Gholston, 54 Geo. 285.
    Equity gives a fee without words of inheritance. Defraunce v. Brooks, 8 Watts & S. 67; North v. Philbrook, 34 Me. 532, and cases there cited; Dellynn v. Llewelyn, 8 Jur, N. S. 1068, 1070.
    If an estate be created by an act of the legislature, the technical language required in conveyances is not required in the grant. 1 Wash. R. P. 57.

      Converse, Woodbury <& Booth, for defendants in error, claimed that, as the pleadings show the premises described in the decree were far more than half of the husband’s real estate, and as the wife obtained by the same decree all of her husband’s personal property, if it was the intention of the court to allow the defendant the bulk of her husband’s property in fee simple, that intention would have been expressed by the use of the words “ in fee simple ” or their equivalent. It uses no such words. The power to make such decree is conferred by statute, which is'in derogation of a long established common law' rule, and as against the wife the language of the decree ought to be strictly construed. 1 Bouv. Die. 71; 2 Bishop on Mar. &Div. § 351.
    The language used in this decree would not pass a fee if used in a deed or will. 1 Wash, on R. P. 83 ; 3 Id. 525, 527 ; 2 Jarman on Wills, 124; 4 Kent Comm. 537.
   Oicey, J.

The cpiestion presented in this ease is whether, by the decree for alimony, Maria Laughlin obtained all the interest which Patrick Laughlin had in the premises in controversy. If she did, then the court of common pleas decided correctly in overruling the demurrer to the apswer, sustaining the demurrer to the reply, and in rendering judgment in favor of the Gallaghers, and the district court erred in reversing the judgment; but if by the decree she took only a life estate, then on her death the estate passed to the heirs of Patrick Baughlin, and the judgment of the district court is correct.

Independently of statutory provision, alimony in England and this country is the allotment of sums of money, payable at stated intervals, by the husband for the support of the wife. The whole subject Is considered in the instructive cases of Calame v. Calame, 25 N. J. Eq. 548; Burrows v. Purple, 107 Mass. 428.

But in this state the matter is regulated by statute. By-the seventh section of the act of 1853 (51 Ohio B. 377), which remained in force until it was incorporated into the revised statutes (5699), it was provided as follows: “ That where a divorce shall be granted, by reason of the aggression of the husband, the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and to her maiden name if she so desires, and shall be allowed such alimony, out of her husband’s real and personal property, as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or by installments, as the court- may deem just and equitable; and if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed to her as alimony, of which he wras seized at any time during the coverture, and to which she has not relinquished her right of dower; hut if the divorce shall arise by reason of the aggression of the wife, she shall be barred of all right of dower in the lands of which her husband shall be seized at the time of the filing of the petition for divorce, or which he may thereafter acquire, whether there be issue or not, and the court shall order to her restoration of the whole of her lands, tenements or hereditaments not previously disposed of, and also such share of the husband’s real or personal property, or both, as to such court may appear just and reasonable.”

In Broadwell v. Broadwell, 21 Ohio St. 657, it appeared that the court below had allowed to the wife, as alimony, a portion of the husband’s lands, and it was stated in the decree, in terms, that her title should be in fee simple. This court held in that ease that such decree was not erroneous. It was unnecessary, however, to express any opinion whether the words, “in fee simple,” or any equivalent words, were necessary in the decree to transfer the fee, and no opinion on the question was expressed. But in this case a decision of that question becomes necessary.

•In the absence of statutory provision, the decree of a court of equity, directing the conveyance of lands, does not operate as such conveyance, but must be enforced by attachment and sequestration. Shepherd v. Ross Co., 7 Ohio, pt. 1, 271. Under this statute, however, no conveyance is contemplated, but on the contrary, when a decree is made allowing lands to a wife as alimony, under the above section, the title she receives passes to her eo instanti. That such title is all the interest of the husband in. such property, where the words, as here, are general, we entertain no doubt. The rule which still requires the word heirs in a deed, in order to pass a fee, has no just application to a statute like the one under consideration ; nor has the rule — no longer in existence here — that a fee in lands will not pass by devise unless the intention of the testator to that effect is apparent on the face of the will. We do not doubt the power of the court, in awarding to the wife a portion of her husband’s lands as alimony, to so limit her interest that it will be less than the whole estate of the husband; as, for instance, where he has a fee, her interest by the decree for alimony may be limited to a life estate; but such limitation, to be effectual, must be found in the decree, and, as already stated, in the absence of such limitation, the whole interest of the husband passes to the wife.

It is further urged, on behalf of the defendant in error, that the real property of Patrick Laughlin, awarded to Mana Laughlin as alimony, was more than one-lialf, in value, of ail the real property owned by him; that by the same decree all his personal property was awarded to her, and hence that the court could not have intended she should take a fee in the lots. But the decree must be construed by its words, in the way already stated. Besides, none of the evidence upon which the divorce and alimony were decreed is before us. ¥e are aware that some attempts have been made to lay down rules for the guidance of courts in awarding alimony; but every case must, in a large degree, depend on its own facts for a proper disposition of it, and, without deciding that the question is properly before us, it is perfectly clear that the circumstance relied on, that is, the large proportion of the property awarded to Maria Laughlin as alimony, cannot, properly, control us in determining the interest which she took in the lands in question.

Judgment of the district court reversed a/nd that of the court of common pleas affi/rmed.


author: By the Court.

text:
    McCague v. Miller et al.
    Error to the District Court of Butler County.

      M. L. Olcvrlc, for plaintiff in error.

      Hoadl/y, Johnson db Colston, a/nd Thomas MilUTcen, for defendant in error.
   By the Court.

Under section 314 of the code of 1853, as amended April 18, 1870 (67 Ohio L. 111), which provides: The following persons shall be incompetent to testify: . . . 7th. — Husband and wife concerning any communication made by one to the other during coverture, or any act done by either in the presence of the other during coverture, unless such communication was made or such act was done within the known presence, hearing or knowledge of a third person competent of being a witness,” &c. Held: A husband or wife called to testify to such communication or act is competent to testify as to the known presence, hearing or knowledge of such third person.