Grove v. Todd

41 Md. 633, 1875 Md. LEXIS 81

Opinion

Alvey, J.,

delivered the opinion of the Court.

There are but two questions presented by the record in this case. First, whether the defective or invalid acknowledgment of the deed of the 29th of November, 1866, by Benjamin Todd, and Ruth his wife, has heen so far aided and cured by the Act of the Legislature of 186*7, chapter 160, as to render the deed valid and effectual as against the wife to bar her right and claim to dower in the land attempted to be conveyed; and if such has been the effect of the Act of 186*7, secondly, whether the wife Ruth was induced to sign or execute the deed under such circumstances of fraud and circumvention as will entitle her to relief from its operation.

The deed purports to convey a farm' of about 1318 acres of land in Frederick county, to Benjamin H. Todd and Jesse E. Todd, children of Jesse Todd, deceased, the illegitimate son of Benjamin Todd, the grantor. The consideration expressed in the deed was the love and affection which the grantor, Benjamin Todd, bore to the grantees, whom he called his grand-children. The wife Ruth bore no .blood relation whatever to these children. The deed, while it professes to have been executed and acknowledged in Frederick county, before a justice of the peace of that county, was in fact executed and acknowledged in Carroll county, where the grantor and his wife at the time resided, before a justice of the peace of Frederick county. Benjamin Todd, the grantor, died intestate in December, 1866, and his widow, one of the appellants, intermarried with Samuel Grove, the other appellant, some time in the summer of 186*7. The bill is filed by the appellants to have the deed declared a nullity, and for the assignment of dower in the land attempted to be conveyed. A large mass of proof has been introduced, reflecting upon the question of fraud, but from the view we have of the case it will become unnecessary to determine whether the allegations of fraud be fully sustained or not.

1. As to the question of the defective or invalid acknowledgment of the deed.

That the deed is -wholly inoperative and void, as against the wife, without the aid of the Act of the Legislature of 1867, chapter 160, has not been denied, or in any manner controverted; but it is insisted by the appellees that the Act just referred to has effectually cured and made valid the otherwise void acknowledgment, and that the deed, by means of the curative Act, operates to extinguish all right of dower in the land mentioned.

The language of the Act relied on is certainly broad and comprehensive. It declares, “That all deeds executed and acknowledged by the grantors, since the first day of November, 1861, in the county in this State in which the grantors then resided, before any other justice of the peace of any other county in this State, duly commissioned and qualified, shall be as valid to all intents and purposes as if acknowledged in the county where the lands in whole or in part are situate, before a justice of said county, or as if acknowledged before a justice of the peace of the county in which the grantors resided.” Before the passage of this Act, Benjamin Todd had died, and by that event the widow’s right to dower in the lands mentioned in the deed had become vested and absolute; and she is now entitled to have that dower assigned, unless her right is barred by the deed of the 29th of November, 1866.

By the common law, a feme covert could not release or convey her inchoate right of dower in her husband’s lands by deed, but only by fine or common i'ecovery. In this State, however, she is enabled by statute to release her dower either by joining in the deed of her husband, or by separate deed, accompanied in either case by proper acknowledgment, as the law directs. Code, Art. 45, sec. 11. This acknowledgment is required to be made, if within the State, either before some judge or justice for the county or city within which the real estate, or some part of it, lies, or some judge or justice for the county or city in which the grantor may be at the time of acknowledgment ; and if before a justice of the peace of a county or city other than that in which the land lies, the official character of such justice is required to be certified by the clerk of the Court; and without the acknowledgment thus required, it is declared that no estate of inheritance or freehold, or any declaration or limitation of use, or any estate for above seven years, shall pass or take effect. Code, Art. 24, secs. 1, 2, 3. The acknowledgment is therefore essential to the validity of the deed, as a legal conveyance, and not only so, but it must be before the proper officer; for if made before a justice'of the peace out of the county or city for which he was appointed, the acknowledgment is as inoperative and void, as if the person taking it was wholly without official character Byer vs. Etnyre & Besore, 2 Gill, 151. Whatever may be the effect and operation of the deed, without proper aekowledginent, as against the husband, it is certain that the wife could only be divested of her estate by proper and legal acknowledgment, and a deed not so acknowledged, is toliolly inoperative as to her, and is to be treated as if she had not been a party to it. Johns vs. Reardon, 11 Md., 465; Steffey vs. Steffey, 19 Md., 5. The deed before us, being without acknowledgment, was utterly null and void as against the wife, both at law and in eqwity, and she was under no obligation, and could not be compelled, to rectify it, so as to give it operation and effect. Gebb vs. Rose, 40 Md., 381: Drury vs. Foster, 2 Wall., 24.

Such then being the state and condition of the widow’s title to dower in the lands mentioned in the deed, at the time of the passage of the Act of 1861, chapter 160, was it within the constitutional power of the Legislature; by retroactive legislation, to give force and validity to the deed, as if properly acknowledged, and thus divest a vested estate ?

That the Legislature may, in proper cases, by retroactive legislation, cure or confirm conveyances, or other proceedings, defectively acknowledged or executed, we entertain no doubt. As authority for the exercise of such power, we have long usage and many precedents. Such .legislation is sustainable, because it is supposed not to operate upon the deed or contract, by changing it, but upon the mode of proof only. Journeay vs. Gibson, 56 Penn. St., 57; Shonk vs. Brown, 61 Penn. St., 321. And in this case we are of opinion that the Act of 1867, chapter 160, has operated to cure and make effectual the deed before us, as against the husband and his heirs. The deed was a good grant at the common law, as against the husband, and he executed it upon a strong moi’al consideration, apart from the fact that it was designed to carry out a long settled and determined, purpose of his so to dispose of the estate. But not so as to the wife. As to her, she being without capacity to make a deed or contract, except in a particular mode, not complied with in this case, the deed by which she is now sought to be barred was no more than a blank piece of paper; and as when vested rights are spoken of by the Courts as being guarded against legislative interference, they mean those rights to which a party may adhere, and upon which he may insist without inflicting a wrong upon others. (9 Gill, 309.) We think the right of the appellant in this case is of that character. She has a right to insist, according to the Declaration of Rights, Art. 23, that she shall not be disseized of her freehold, liberties or privileges, or deprived of her property, otherwise than by the judgment of her peers, or by the law of the land; or, as these latter terms are defined, by due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. 2 Kent’s Com., 13; The Regents vs. Williams, 9 Gill & John., 412 ; Wright vs. Wright, 2 Md., 452; Westervelt vs. Gregg, 12 N. Y., 209 ; Reese vs. City of Watertown, 19 Wall., 122. The deed being utterly void and without effect as to her estate, if she is now divested of her right of dower, it is by force of the statute and not of the deed ; the statute operating through the form of the otherwise void deed to transfer the estate. To concede to the Legislature the power, by retroactive legislation, adopted without the consent of the party to be affected, to accomplish such a result, is at once to concede to it the power to divest the rights of property and trans • fer them, without the forms of law, upon any notion of right or justice that the Legislature may think proper to adopt: — a concession that can never be made in a government where the rights of property do not depend upon the mere will of the Legislature, and which professes to maintain a regular system of laws for the protection of the rights of property of its citizens.

Great reliance has been placed on several cases cited in argument, supposed to be in support of the constitutional power of the Legislature to cure and make valid deeds, such as the one now under consideration. But upon examination they will be found to be cases essentially different from the one- now before us. The first of the cases cited is that of Hollingsworth vs. McDonald, 2 H. & J., 230. There, under a deed of settlement of land which had belonged' to the wife before marriage, the estate was limited to the separate use of the wife for life, with a vested estate in fee-tail to her son, the reversion in fee to the mother, the son being by a former .husband. After the marriage, the husband and wife, together with the trustee, in whom the legal estate was vested, made a deed of bargain and sale to the son, of the fee simple estate in the land. In the acknowledgment of this deed, the word “fear” was omitted, though the deed and acknowledg ment were in all other respects regular and formal. The son was let into possession under the deed, and died in possession of the land, having by his will devised it to his mother. The son having died insolvent, his creditors filed a bill against his mother and her husband, treating the mother as devisee, and prayed a sale of the land for the payment of the son’s debts. To this bill the husband and wife answered, admitting that the son died seized in fee of the land, and that he had devised the same to his mother. Whereupon a decree for sale was passed, a sale made and reported, and which was confirmed by consent, of the husband and wife. Afterwards they filed a bill in the nature of a bill of review, wherein they alleged that they had, since the ratification of the sale, discovered that the deceased son had never been seized of the fee in the land, but the same belonged to the mother, and that the deed to the son was not so acknowledged as to pass the estate of a feme covert. This bill was dismissed by the Chancellor, and the case was taken to the Court of Appeals, and after it was there argued, but before decision rendered, the curative Act of 1807, chapter 52, was passed, which the Court of Appeals said operated to render the deed valid and effectual. Such wag’ the case of Hollingsworth vs. McDonald,; and certainly it falls far short of an authority for the support of legislative power to impart life and operative vitality to a deed, such as that before us, as to the estate of the wife.

The next case 'relied mi is that of Dulany & Dangerfield vs. Tilghman, 6 Gill & J., 461. That was a case where a deed of settlement was defectively executed, and the Legislature, upon the application of the grantor, having made another or a modified settlement, it was held, that the first deed was not affected by the subsequent general Acts of the Legislature, intended to cure deeds defectively executed. Whether the Act of the Legislature, involved in that case, was nugatory and void, as an unauthorized usurpation of power denied to the Legislature, upon principles of common right or constitutional restriction, was a question which the Court expressly said they were relieved from considering. “ The title of the property,” said the Court, “by reason of the defective acknowledgment, remaining in the petitioners, it was unquestionably competent for the Legislature, at their request, to settle it in the mode prescribed by the Act of Assembly.” There was nothing decided in that case that in any manner conflicts with what we decide in this.

The case of Baugher vs. Nelson, 9 Gill, 299, is also relied on by the appellees ; but we can perceive nothing in that case that supports the position assumed by the appellees’ counsel. That was the case in which it was decided that a defendant had no such vested or constitutional right in a defence of usury to an otherwise honest and proper debt, whereby he was enabled to insist upon the forfeiture of the entire debt, as should be guarded and saved from the operation of a repealing Act of the Legislature. The Court said there was no vested right, in the proper sense of the term, divested by the Act of the Legislature then under review ; that the Act was no more than the proper exercise of the legislative authority over the subject of remedies ; a power which can be' exerciséd as well in relation to past as to future contracts. That when vested rights are spoken of by the Courts as being guarded against legislative interference, they mean those rights to which a party may adhere, and upon which he may insist, without violating principles of sound morality.'

The case of Harrison vs. Harrison, 22 Md., 468, also relied on, decides nothing that properly applies to this case. The marriage that was celebrated in the District of Columbia, between the uncle and his niece, was'held not to be ipso facto void, but only voidable upon judgment or decree pronounced in the life-time of the parties, in a direct proceeding taken for the purpose ; and the marriage Act of 1777, chapter 12, imposing the disability, being penal in its character, it was further held to be competent to the Legislature, by the subsequent Act of 1860, chapter 271, to relieve from the disability, and to make such marriage valid. This can in no manner aid the appellees in this case.

There were cases from other States referred to, those most relied on being cases decided by the Supreme Courts of Pennsylvania and Ohio. In those two States, legislation of the character here involved appears to have been maintained to the greatest extent. In the first of these States, the principle upon which such retroactive laws are supported, as stated in one of the earlier decisions upon the subject, (Underwood vs. Lilly, 10 S. & R., 101,) and also in one of the latest, (Shonk vs. Brown, 61 Penn. St., 327,) is, that they shall impair no contract, nor disturb any vested right, hut only vary remedies, cure defects in proceedings otherwise fair, which do not vary existing obligations contrary to their situation when entered into and when prosecuted. In Ohio, according to the latest decision, (Chesnut vs. Shane, 16 Ohio, 599,) such legislation can he maintained only where it operates upon that class of deeds where enough has been done to show that a Court of Chancery ought, in each case, to pass a decree for a conveyance ; that where the title in equity is such that a Court of Chancery ought to interfere and decree a good title, it is within the power of the Legislature to confirm the deed, without snbjecting the parties to the expense of litigation. It is manifest that the decisions in neither of these States can he invoked as authorities for the appellees as against the appellant.

The conclusion is, from what has been said, that we are of opinion that the deed before us is not affected or rendered operative by virtue of the Act of 1867, chapter 160, as against the féme covert, one of the appellants, though it is cured and rendered operative as against the heirs of Benjamin Todd, the grantor; and therefore the decree appealed from must be reversed, and the cause remanded, that a proper decree.be passed by the Court below, providing for and directing the assignment of dower in the lands mentioned, as prayed by the bill.

(Decided 10th March, 1875.)

Decree reversed, and cause remanded.

Stewart, J., dissented.