The opinion of the Court was delivered by
Sergeant, J.
The first and third bills of exceptions, and a portion of the charge of the Court, raise the question, whether the certificate of the justice pf the peace of the acknowledgment by the husband and wife, was conclusive as to all matters legally contained in it, so that the defendant was not at liberty to prove by parol evidence, that the mortgage was not acknowledged by her before the justice, in the manner it purports to have been, and thus destroy its validity. This point has not perhaps been expressly ruled, but the principle has been repeatedly recognised, that the certificate of the judge or justice, as to the acknowledgment of a deed by a married woman, is to be judged of solely by what appears on the face of the certificate itself; and that parol evidence of what passed at the time of such acknowledgment, is not to be received, except in cases of fraud and imposition. In Watson v. Baily, (1 Binn. 470,) the acknowledgment being held to be defective and not to pass the estate of the wife, the defendants offered to produce evidence of parol declarations by the wife, that she executed the deed voluntarily; and that if it was not sufficient, *she would execute and acknowledge it over again, or do other act to make the thing good. The evidence was held to be inadmissible. This case was recognised, [469]*469and the same decision made in Jordan v. Jordan, (9 Serg. & Rawle, 268). “ There would be no certainty in titles,” says Tilghman, C. J., “ if that kind of evidence were permitted. The law directs the magistrate to make his certificate in writing, and he has made it. ' To that the world is to look and to nothing else.” And again in Barnet v. Barnet, (15 Serg. & Rawle, 73); he says, “ The third error assigned, is in the rejection of parol evidence offered by the defendant, to prove that when the demand-ant made her acknowledgment, she knew the contents of the deed, and received eight dollars from E. Barnet for executing the deed. That such evidence was inadmissible, was decided by this Court in the case of Watson v. Baily. There may be cases of gross fraud in which parol evidence would be received, unless the land had passed into the hands of a purchaser for valuable consideration, without notice of the fraud.” These decisions all show that the defendant is not permitted to prove by parol evidence, that the magistrate’s certificate does not contain the whole truth, even when the. object of such evidence is to support the deed. I can see no distinction between these cases, and that in which the defendant endeavours to show by parol evidence, that the certificate of the magistrate contains what is not the truth, and thus falsify it, for the purpose of destroying the deed. The judge or justice of the peace in taking an acknowledgment acts judicially, not ministerially. The law imposes on him the duty of ascertaining by his own view and examination, the truth of the matters to which he is to certify, and points out precisely his duty. Having thus entrusted him to see that the proper forms are observed, his solemn certificate that they have been observed, on the faith of which parties act, contracts are proceeded in, moneys are paid, and deeds accepted, must (in the absence of fraud or collusion,) he considered as entitled to full faith and credit; and cannot, without rendering titles to real estate exceedingly insecure, be left at any distance of time afterwards, to the uncertainty and frailty of parol proof, and to all the mistakes, prejudices, imperfections, and hazards that attend it. Eor these reasons, I -am of opinion, that the Court below was right in refusing to permit the plaintiff to produce parol evidence to controvert the magistrate’s certificate, and in charging the jury that it was conclusive evidence that the defendant acknowledged the mortgage as required by law.
2. The mortgage is objected to, first, because the wife did not grant her estate; and, secondly, it is said that she was not a party to the indenture of mortgage, and, therefore, could convoy nothing by it. The indenture is certainly informal in the promises, so far as respects the wife, in not making her one of the grantors in the indenture, in the manner usually practised. But the omission of all or any of the formal parts of a deed, does not destroy its validity, *where sufficient appears on its face to show, that those having an interest intend to convey it, and they join in sealing the instrument. The office of the premises in a deed, is, rightly to name the grantor and grantee, and to comprehend the certainty of the thing granted. The office of the habendum is to set down again the name of the grantee, the estate that.is to be made and limited, or the time that the grantee shall have in the thing granted or demised, and to what use. But the deed that does usually consist of all these parts, may be good notwithstanding some of them be omitted, and if it be not so formally made; for an estate may be made by a deed without any habendum at all: and if the name of the grantee be ■ not contained in the premises, yet if it be in the habendum, it may be good enough. Shep. Touch. 73. In the present instance, Mrs. Jamison joined in this instrument by executing and acknowledging it; and though she is not named in the premises, yet the premisfes describe the whole land by metes and bounds, and grant and convey it and also all the estate, right, title, interest, use, possession, property, claim and demand whatsoever, of them the said Robert Jamison and Syndonia his wife, of, in, to, or out of 'the same; “to have and to hold the said described sixty-five acres and sixty-one perches óf land, hereditaments and premises, hereby granted,” &c., with a clause of redemption in favour of both. At the conclusion is the clause, “ in witness whereof, the said parties to those presents, have interchangeably set their hands and seals;” and both the husband and the wife sealed the indenture.
It would seem to be apparent on the face of this instrument, that her interest as well as his, was intended to be conveyed. It cannot be supposed that the husband alone intended to convey the estate of his wife. That could only be done by her. And as it is plain her interest was intended to be conveyed, and the indenture could not have effect except by her conveyance, such must be deemed the operation of the instrument, in order to give effect to the intention of the parties. The leading rule of construction of deeds is, in all cases, that the construction be favourable, and as near to the minds and apparent intent of the parties as possibly it may be, and the law will permit. Shep. Touch. 83; Co. Litt. 313; Plow. 154, 160. And another rule is, that the construction be upon the entire deed, and that one part of it doth help to expound another, and that every word, (if it may be,) may take effect and none he rejected, and that all the parts do agree together, and there be no discordance therein. Shep. Touch. [470]*47084. Another rule is, that the construction be such as that the whole deed, and every part of it, may take effect, and as much effect as may be to that purpose for which it is made. Ib. 84. And this is a rule both in law and equity. 1 Pr. Wms. 457. For these reasons, I am of opinion, that the mortgage was sufficient to pass as well the interest of Mrs. Jamison as of her husband.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Sergeant, J.
The first and third bills of exceptions, and a portion of the charge of the Court, raise the question, whether the certificate of the justice pf the peace of the acknowledgment by the husband and wife, was conclusive as to all matters legally contained in it, so that the defendant was not at liberty to prove by parol evidence, that the mortgage was not acknowledged by her before the justice, in the manner it purports to have been, and thus destroy its validity. This point has not perhaps been expressly ruled, but the principle has been repeatedly recognised, that the certificate of the judge or justice, as to the acknowledgment of a deed by a married woman, is to be judged of solely by what appears on the face of the certificate itself; and that parol evidence of what passed at the time of such acknowledgment, is not to be received, except in cases of fraud and imposition. In Watson v. Baily, (1 Binn. 470,) the acknowledgment being held to be defective and not to pass the estate of the wife, the defendants offered to produce evidence of parol declarations by the wife, that she executed the deed voluntarily; and that if it was not sufficient, *she would execute and acknowledge it over again, or do other act to make the thing good. The evidence was held to be inadmissible. This case was recognised, [469]*469and the same decision made in Jordan v. Jordan, (9 Serg. & Rawle, 268). “ There would be no certainty in titles,” says Tilghman, C. J., “ if that kind of evidence were permitted. The law directs the magistrate to make his certificate in writing, and he has made it. ' To that the world is to look and to nothing else.” And again in Barnet v. Barnet, (15 Serg. & Rawle, 73); he says, “ The third error assigned, is in the rejection of parol evidence offered by the defendant, to prove that when the demand-ant made her acknowledgment, she knew the contents of the deed, and received eight dollars from E. Barnet for executing the deed. That such evidence was inadmissible, was decided by this Court in the case of Watson v. Baily. There may be cases of gross fraud in which parol evidence would be received, unless the land had passed into the hands of a purchaser for valuable consideration, without notice of the fraud.” These decisions all show that the defendant is not permitted to prove by parol evidence, that the magistrate’s certificate does not contain the whole truth, even when the. object of such evidence is to support the deed. I can see no distinction between these cases, and that in which the defendant endeavours to show by parol evidence, that the certificate of the magistrate contains what is not the truth, and thus falsify it, for the purpose of destroying the deed. The judge or justice of the peace in taking an acknowledgment acts judicially, not ministerially. The law imposes on him the duty of ascertaining by his own view and examination, the truth of the matters to which he is to certify, and points out precisely his duty. Having thus entrusted him to see that the proper forms are observed, his solemn certificate that they have been observed, on the faith of which parties act, contracts are proceeded in, moneys are paid, and deeds accepted, must (in the absence of fraud or collusion,) he considered as entitled to full faith and credit; and cannot, without rendering titles to real estate exceedingly insecure, be left at any distance of time afterwards, to the uncertainty and frailty of parol proof, and to all the mistakes, prejudices, imperfections, and hazards that attend it. Eor these reasons, I -am of opinion, that the Court below was right in refusing to permit the plaintiff to produce parol evidence to controvert the magistrate’s certificate, and in charging the jury that it was conclusive evidence that the defendant acknowledged the mortgage as required by law.
2. The mortgage is objected to, first, because the wife did not grant her estate; and, secondly, it is said that she was not a party to the indenture of mortgage, and, therefore, could convoy nothing by it. The indenture is certainly informal in the promises, so far as respects the wife, in not making her one of the grantors in the indenture, in the manner usually practised. But the omission of all or any of the formal parts of a deed, does not destroy its validity, *where sufficient appears on its face to show, that those having an interest intend to convey it, and they join in sealing the instrument. The office of the premises in a deed, is, rightly to name the grantor and grantee, and to comprehend the certainty of the thing granted. The office of the habendum is to set down again the name of the grantee, the estate that.is to be made and limited, or the time that the grantee shall have in the thing granted or demised, and to what use. But the deed that does usually consist of all these parts, may be good notwithstanding some of them be omitted, and if it be not so formally made; for an estate may be made by a deed without any habendum at all: and if the name of the grantee be ■ not contained in the premises, yet if it be in the habendum, it may be good enough. Shep. Touch. 73. In the present instance, Mrs. Jamison joined in this instrument by executing and acknowledging it; and though she is not named in the premises, yet the premisfes describe the whole land by metes and bounds, and grant and convey it and also all the estate, right, title, interest, use, possession, property, claim and demand whatsoever, of them the said Robert Jamison and Syndonia his wife, of, in, to, or out of 'the same; “to have and to hold the said described sixty-five acres and sixty-one perches óf land, hereditaments and premises, hereby granted,” &c., with a clause of redemption in favour of both. At the conclusion is the clause, “ in witness whereof, the said parties to those presents, have interchangeably set their hands and seals;” and both the husband and the wife sealed the indenture.
It would seem to be apparent on the face of this instrument, that her interest as well as his, was intended to be conveyed. It cannot be supposed that the husband alone intended to convey the estate of his wife. That could only be done by her. And as it is plain her interest was intended to be conveyed, and the indenture could not have effect except by her conveyance, such must be deemed the operation of the instrument, in order to give effect to the intention of the parties. The leading rule of construction of deeds is, in all cases, that the construction be favourable, and as near to the minds and apparent intent of the parties as possibly it may be, and the law will permit. Shep. Touch. 83; Co. Litt. 313; Plow. 154, 160. And another rule is, that the construction be upon the entire deed, and that one part of it doth help to expound another, and that every word, (if it may be,) may take effect and none he rejected, and that all the parts do agree together, and there be no discordance therein. Shep. Touch. [470]*47084. Another rule is, that the construction be such as that the whole deed, and every part of it, may take effect, and as much effect as may be to that purpose for which it is made. Ib. 84. And this is a rule both in law and equity. 1 Pr. Wms. 457. For these reasons, I am of opinion, that the mortgage was sufficient to pass as well the interest of Mrs. Jamison as of her husband.
*In Nation to another part of this objection, that this is an indenture between parties, and she not being-named in the premises as a party, is a stranger to the deed, which has no operation as to her, the rule is, that a stranger executing a deed-poll or an indenture not inter partes is bound by it, and may also take advantage of it. But where the deed is inter partes, he who is a party to the deed, cannot covenant with another who is no party. But if a mere stranger, not named a party, (where the instrument is inter partes,) covenants with another who is named, and seals the deed, he is bound by such sealing. This distinction, is taken by Holt, C. J., in Salter v. Kidley, (Carth. 76,) and has been often made. See the cases collected in Platt on Covenants, 7, Law Library, January 1834, and 13 Vin. Ab. 52 to 57. In the case of Salter v. Kidley, above mentioned, which is also reported in 1 Show. 56, and Holt 210, covenant was brought on certain articles of agreement, between J. S. of the one part, and C. R. of the same county, by which J. S. let a house to C. R. at a yearly rent, which C. R. agreed to pay, “ and that said rent'may be satisfied, I, John Kidley do covenant for myself, &c. on behalf of said 0. R., to pay,” &c., which deed was sealed by C. R. and Kidley the defendant. It was argued that the defendant was not bound by this covenant, because he was not a party to the deed; and it is a rule in law, that he who is not a party to the deed,- can neither give nor take any thing by it, except by way of remainder. 3 Cro. 76; 2 Inst. 673; 2 Rolle’s Ab. 220; 3 Cro. 359; 1 Inst. 352; Roll. 72; 3 Lev. 138; 2 Lev. 74. But Holt, C. J. said, “Why cannot a man oblige himself by a deed, if there be express words for it, and he seals it ? Suppose at the end of an indenture it be ‘ And be it known unto all men, that A. B. for himself covenants &c.’ and he puts his seal to it, why should not this oblige him? A man cannot take immediately when he is not a party; but where do you find that a man cannot give without being a party? In a deed of feoffment a warrant of attorney to A. not a party, is good now, though formerly held to be otherwise.” And the Court was clear in opinion, that the action should lie against the defendant on this deed. So in Perkins, sec. 158, “it hath been holden, that a man shall be bounden by the speaking, if another man, by averment thereof, in putting his seal to it, and delivering of it as his deed.” And in section 159, “ and it is to be known [471]*471that at this day, a man shall be bounden by putting his seal unto a deed indented, and delivery of the same, and yet the words within the deed are spoken by another man.” I am, therefore, of opinion, that the defendant’s interest passed by the sealing and acknowledgment of the mortgage, though she was not named as a party in the premises.
It has been further contended, that a married woman has no power to mortgage her lands. It is believed, however, that nothing has been more usual in Pennsylvania, than for husband and wife to *mortgage the wife’s lands, by the ordinary mode of conveyance in mortgage, acknowledged according to the legal form; and it cannot be doubted, that the power to convey in fee simple, practised from the first settlement of the province, and recognised and established by the act of-assembly of 1770, confers the right to mortgage — since a power to grant the whole estate necessarily implies a power to grant any lesser estate. This point has been already decided by this Court, in the case of Wilson v. The Harrisburg Banh, determined at Chambersburg, at October term, 1831.
The form of the acknowledgment is also objected to as defective, in not complying with that which the act of assembly prescribes, in two respects; 1st, in stating that she “ did of her own free will and accord, seal and acknowledge the within indenture of mortgage” instead of “ seal and deliverand 2d, in omitting the word ‘ compulsion.’ I am of opinion, however, that although these are literal deviations from the act of assembly, yet the certificate is substantially in compliance with it; and, therefore, the certificate is sufficient, according to the decisions in M'Intire v. Ward, (5 Binn. 301,) and Shaller v. Brand, (6 Binn. 435). Acknowledging a deed sealed by the party, is tantamount to a delivery of it, if none had been made before. A delivery may be not only by acts, but by words without any act of delivery. Co. Litt. 36, a. The word ‘coercion,’ seems to be synonymous with ‘compulsion,’ and substantially to include it.
Judgment affirmed.
Cited by Counsel, 9 Barr, 15 ; 7 Harris, 406 ; 11 Id. 237 ; 3 Casey, 24: 1 Grant, 404 ; 4 Wright, 40 ; 8 Id. 230; 4 P. F. Smith, 302.
Cited by the Court, 4 Harris, 540; 12 Id. 19; 2 Casey, 450; 6 P. F. Smith, 61.
See 1 Watts, 228 ; 9 Barr, 15 ; 2 Wright, 336 1 P. F. Smith, 290, 313.