In Re Bateman

11 R.I. 585, 1877 R.I. LEXIS 53

• Court: Supreme Court of Rhode Island
• Decided: July 21, 1877
• Status: Published

Opinion

Dukeee, C. J.

This is a case stated for the opinion of the court under Public Laws, cap. 563, § 16, April 20, 1876. It presents a question in regard to the sufficiency of a certificate of acknowledgment on a married woman’s deed. The certificate does not expressly state that the deed was shown to the woman, being in this respect like the certificate in Kavanaugh v. Day, 10 R. I. 393. Again, it does not state that the deed was explained to her by the officer, but does state that she was made fully acquainted with its contents by him. It is contended that this is equivalent to stating that it was explained; and see Hughes et al. v. Lane, 11 Ill. 123. We refrain from an opinion upon this point, because we think the certificate is otherwise fatally defective. It does not follow the language of the statute, Revised Stat. of R. I. cap. 136, § 7. It states, with much superfluous verbiage, that the woman acknowledged that she “ did execute ‘ the deed ’ of her own free will and accord.” It does not state that she also declared that she did not wish to retract' the same, or that she said anything else equivalent to it. The statute is explicit. Its language is, she “ shall declare to the officer taking such acknowledgment that the deed or instrument shown and explained to her by such magistrate is her voluntary act, and that she doth not wish to retract the same.” The statute contemplates that she may after signing repent of her act, and is evidently designed to guard and protect her in the exercise of her free will up to the last moment. Hence the words, “that she doth not wish to retract the same.” Churchill v. Monroe, 1 R. I. 209, 212. In this certificate the omission of these or other equivalent words is more clearly a defect than it would be in a certificate in the usual form. It is argued that we may presume that she did not after signing change her mind. Undoubtedly we may presume so, and yet the fact may be otherwise. And, because it may be otherwise, the statute requires the more plenary proof afforded by the declaration. We have no right to dispense with so positive a requirement.

William P. Sheffield, for Bateman. Francis B. Pechham, Jr., for King.

A similar view was taken by the Supreme Court of Virginia, in Grove v. Zumbro, 14 Grat. 501. There the married woman is 'required, in one form of proceeding, to declare to the examining magistrate “ that she did freely and willingly seal and deliver the said writing, and .wishes not to retract it.” A certificate which did not show that she so declared was held to be fatally defective. “ Her wish to retract what was done,” the court say, “ is. perfectly consistent with everything contained in the certificate.” The saíne may be said in regard to the certificate before us. There is an Illinois case which at first blush seems to be opposed to this view. But a closer inspection shows that the case was decided upon a nice construction of the statute of that state such as ours does not admit of. Hughes et al. v. Lane, 11 Ill. 123.

Of course it is not necessary, however desirable it may be, for the certificate to follow the language of the statute. But it is necessary for it to show, either expressly or by intendment, that the acknowledgment, or declaration prescribed, has been given in substance if not in form. .. The certificate before us does not, in our opinion, come up to this requirement.