The opinion of the court, filed August 2, was delivered by
Chambers, J.
This case presents one instance out of the many that occur, by which a deed is extorted from a wife, conveying her real estate, under the forms of law and the sanction and certificate of a judicial officer, yet in reality against her free will and consent. By the common law the wife’s land could be aliened only with her assent, deliberately expressed, on a fair, full, and careful separate examination in a eourt of record. The condition of real property under the provincial government, its common transfer, as an article of trade and barter, with but little form, and the want of judicial tribunals, induced a departure in this State from the requirements of the common law for the protection of a wife in the alienation of her lands, and substituted the form of acknowledgment which by legislative enactment was confirmed and provided for in February 1770. Whatever the policy or exigency may have been that induced the relaxation of the law for the protection of the rights of feme coverts in their real estate, it is not creditable to our jurisprudence or to the intelligence of the times, that, with all the abuses of the exercise of the power by which a wife is divested of her real estate, and which so notoriously prevail, it should not have led to some legislative amendment of the law, providing for the protection of the wife, by a shield that had in it some substance. So great is marital influence, and the defenceless condition of the wife, that it is a rare case that she has firmness and independence to resist, for any length of time, the importunity of a rapacious husband. Whilst she has a husband for her protection against the world, she has, by the law of Pennsylvania, a most inefficient protection against the influence and control of 'her husband, who has her confidence and the keeping of her will. It is said by Justice Gibson, in Watson v. Mercer, 6 Ser. & R. 50, that “ the policy of the law should be as far as possible to narrow rather than widen the field of this controlling influence.”
It is, we think, for our judicial tribunals to administer to the wife the protection professed to be given by the forms of the law, as far as justice and public security will allow.
In the present case, the plaintiff, S. Louden, claimed the lots and mansion for which the ejectment was brought by him, under a [540]*540mortgage executed by the defendant, Mrs. Blythe, jointly with her late husband, Ezra Blythe, of the real property of the wife. The acknowledgment of Mrs. Blythe was in the form required by the act of Assembly, and certified by Nathaniel Grayson, a justice of the peace of Adams county.
On the part of Mrs. Blythe, evidence was offered in the court below to impeach the acknowledgment as certified, for alleged imposition, falsehood, and fraud, as contained in the offer of defendant. This was objected to by the plaintiff, hut the objection was overruled, the evidence admitted, and exception taken, and is assigned for error in this court by the plaintiff.
The justice who takes and certifies the acknowledgment of the wife to a deéd is acting judicially. He is the commissioner and organ of the law, intrusted with the duty of seeing that it is her act and deed, and that she did voluntarily and of her own free will and accord, without any coercion or compulsion of her husband, sign, &c. His duty is an important one to the wife and her representatives ; and it is a responsible one to the public, who are interested that the law be faithfully administered. We cannot cast into oblivion our knowledge that this duty is often, by justices of the peace, and sometimes by other judicial officers, as has been said, “ hurried over almost in the presence of the husband.” And when the examination is out of the presence of the husband, the justice seems to think, he has only to read over, in a hurried manner, the prepared form of acknowledgment which he has in his hand, and if open resistance is not made by the dependent wife, the acknowledgment is certified in due form, with all its particulars. There is no free and searching inquiry by the magistrate as to the free will and consent with which she is parting with her estate to satisfy the demands of an improvident and importunate husband. The law intends that he should do what is enjoined, and he certifies, under his hand and seal, as a judicial officer, that all was done in conformity to law.
Can it be that such acknowledgments are of so high and sacred character as to import absolute verity, and cannot be assailed by parol evidence ? Had the acknowledgment been in a court of record by fine, it would have been open to impeachment for fraud: 1 Mad. Ch. 266; Schrader v. Decker, 9 Barr 14. But, say the court in the last case, “ that we would deprive married women of all substantial protection, did we give to the separate examination of a judge or justice of the peace the conclusive effect of an examination by commissioners to levy a fine, which is more private, careful, and searching.” “ The necessities of justice therefore demand that the transaction be open to objection, not only for fraud, but concealed duress.”
In the case of Jamison v. Jamison, 3 Whar. 457, it was held that parol evidence of what passed at the time of the acknowledgment [541]*541is not admissible for, the purpose of contradicting the certificate, except in cases of fraud or imposition. Parol evidence may be received for the purpose of proving forgery or fraud, or collusion between the husband and the justice, in consequence of which it was falsely certified: Barnet v. Barnet, 15 Ser. &. R. 72-3.
A regard to the policy of the law, for the security of titles and the protection of the rights of property which are passed by conveyances and assurances of which these acknowledgments and certificates are a common part, will restrain this court from allowing such acknowledgments to be impeached by parol evidence, contradicting the facts certified, in the absence of fraud and imposition; and where there are fraud and imposition alleged, the knowledge of it ought to be brought home to the grantee, or of such circumstances within his knowledge of the want of free will and consent on the part of the wife, as should lead him to inform himself of the reality of a free execution and acknowledgment by the wife whose property was to be divested. Where the grantee has knowledge of facts to put him on that inquiry, if silent and inactive on the subject, it is at his peril, and he must abide the consequences.
In this case it was proposed to be proved, and it was so proved, that when Mrs. Blythe was in the sitting-room with Ezra Blythe, her husband, and S. Louden, the plaintiff, she was asked to execute this mortgage, which she refused to do, and retired to her chamber, where she lay in bed weeping. She was followed there and importuned by her husband to sign the mortgage, which she still refused to do, stating to him that he was aware of her unwillingness to divest herself of this property, which she desired to retain as a home for herself and him, if he survived her. He continued to press her, and she refused. Having persevered for a long time without success, her husband turned away, apparently agitated, declaring that he would not remain on the property if she refused to execute the mortgage; and he went out of the chamber.
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The opinion of the court, filed August 2, was delivered by
Chambers, J.
This case presents one instance out of the many that occur, by which a deed is extorted from a wife, conveying her real estate, under the forms of law and the sanction and certificate of a judicial officer, yet in reality against her free will and consent. By the common law the wife’s land could be aliened only with her assent, deliberately expressed, on a fair, full, and careful separate examination in a eourt of record. The condition of real property under the provincial government, its common transfer, as an article of trade and barter, with but little form, and the want of judicial tribunals, induced a departure in this State from the requirements of the common law for the protection of a wife in the alienation of her lands, and substituted the form of acknowledgment which by legislative enactment was confirmed and provided for in February 1770. Whatever the policy or exigency may have been that induced the relaxation of the law for the protection of the rights of feme coverts in their real estate, it is not creditable to our jurisprudence or to the intelligence of the times, that, with all the abuses of the exercise of the power by which a wife is divested of her real estate, and which so notoriously prevail, it should not have led to some legislative amendment of the law, providing for the protection of the wife, by a shield that had in it some substance. So great is marital influence, and the defenceless condition of the wife, that it is a rare case that she has firmness and independence to resist, for any length of time, the importunity of a rapacious husband. Whilst she has a husband for her protection against the world, she has, by the law of Pennsylvania, a most inefficient protection against the influence and control of 'her husband, who has her confidence and the keeping of her will. It is said by Justice Gibson, in Watson v. Mercer, 6 Ser. & R. 50, that “ the policy of the law should be as far as possible to narrow rather than widen the field of this controlling influence.”
It is, we think, for our judicial tribunals to administer to the wife the protection professed to be given by the forms of the law, as far as justice and public security will allow.
In the present case, the plaintiff, S. Louden, claimed the lots and mansion for which the ejectment was brought by him, under a [540]*540mortgage executed by the defendant, Mrs. Blythe, jointly with her late husband, Ezra Blythe, of the real property of the wife. The acknowledgment of Mrs. Blythe was in the form required by the act of Assembly, and certified by Nathaniel Grayson, a justice of the peace of Adams county.
On the part of Mrs. Blythe, evidence was offered in the court below to impeach the acknowledgment as certified, for alleged imposition, falsehood, and fraud, as contained in the offer of defendant. This was objected to by the plaintiff, hut the objection was overruled, the evidence admitted, and exception taken, and is assigned for error in this court by the plaintiff.
The justice who takes and certifies the acknowledgment of the wife to a deéd is acting judicially. He is the commissioner and organ of the law, intrusted with the duty of seeing that it is her act and deed, and that she did voluntarily and of her own free will and accord, without any coercion or compulsion of her husband, sign, &c. His duty is an important one to the wife and her representatives ; and it is a responsible one to the public, who are interested that the law be faithfully administered. We cannot cast into oblivion our knowledge that this duty is often, by justices of the peace, and sometimes by other judicial officers, as has been said, “ hurried over almost in the presence of the husband.” And when the examination is out of the presence of the husband, the justice seems to think, he has only to read over, in a hurried manner, the prepared form of acknowledgment which he has in his hand, and if open resistance is not made by the dependent wife, the acknowledgment is certified in due form, with all its particulars. There is no free and searching inquiry by the magistrate as to the free will and consent with which she is parting with her estate to satisfy the demands of an improvident and importunate husband. The law intends that he should do what is enjoined, and he certifies, under his hand and seal, as a judicial officer, that all was done in conformity to law.
Can it be that such acknowledgments are of so high and sacred character as to import absolute verity, and cannot be assailed by parol evidence ? Had the acknowledgment been in a court of record by fine, it would have been open to impeachment for fraud: 1 Mad. Ch. 266; Schrader v. Decker, 9 Barr 14. But, say the court in the last case, “ that we would deprive married women of all substantial protection, did we give to the separate examination of a judge or justice of the peace the conclusive effect of an examination by commissioners to levy a fine, which is more private, careful, and searching.” “ The necessities of justice therefore demand that the transaction be open to objection, not only for fraud, but concealed duress.”
In the case of Jamison v. Jamison, 3 Whar. 457, it was held that parol evidence of what passed at the time of the acknowledgment [541]*541is not admissible for, the purpose of contradicting the certificate, except in cases of fraud or imposition. Parol evidence may be received for the purpose of proving forgery or fraud, or collusion between the husband and the justice, in consequence of which it was falsely certified: Barnet v. Barnet, 15 Ser. &. R. 72-3.
A regard to the policy of the law, for the security of titles and the protection of the rights of property which are passed by conveyances and assurances of which these acknowledgments and certificates are a common part, will restrain this court from allowing such acknowledgments to be impeached by parol evidence, contradicting the facts certified, in the absence of fraud and imposition; and where there are fraud and imposition alleged, the knowledge of it ought to be brought home to the grantee, or of such circumstances within his knowledge of the want of free will and consent on the part of the wife, as should lead him to inform himself of the reality of a free execution and acknowledgment by the wife whose property was to be divested. Where the grantee has knowledge of facts to put him on that inquiry, if silent and inactive on the subject, it is at his peril, and he must abide the consequences.
In this case it was proposed to be proved, and it was so proved, that when Mrs. Blythe was in the sitting-room with Ezra Blythe, her husband, and S. Louden, the plaintiff, she was asked to execute this mortgage, which she refused to do, and retired to her chamber, where she lay in bed weeping. She was followed there and importuned by her husband to sign the mortgage, which she still refused to do, stating to him that he was aware of her unwillingness to divest herself of this property, which she desired to retain as a home for herself and him, if he survived her. He continued to press her, and she refused. Having persevered for a long time without success, her husband turned away, apparently agitated, declaring that he would not remain on the property if she refused to execute the mortgage; and he went out of the chamber. She was then pressed by the relative of her husband, with repeated solicitation, — when she got from her bed and wrote her name to the mortgage, and immediately gave the pen a dash, as if to strike out her name. The justice, who was in the other room with S. Louden throughout the afternoon, is brought into the chamber of the weeping wife at candle-light, and asks Mrs. Blythe if she signed the mortgage with her own consent, to which she answered, “ It is of no use to deceive you: I had no will in the business; my will was not consulted.” The justice again asked her whether he understood her to say that she did not sign the mortgage with her own free will and consent, to which she replied, “I did say so.” He repeated the question several times, and to which Mrs. Blythe gave the same answer. Her health was delicate, and she was in tears most of the afternoon. She declared that she was willing that all her personal property should go to pay the debts of the firm of [542]*542which her husband was a partner, but that she was unwilling to sign a mortgage of the house and lot, as she felt certain that her husband would be disappointed in lifting it. N. Grayson, Esq., justice of the peace, who certified the acknowledgment, being called on the part of S. Louden, substantially confirmed most of the material facts testified to by witnesses of unimpeached veracity.
The justice testified that when he entered the room, Mrs. Blythe appeared to be distressed, and was weeping, and that when the mortgage was read, she said, “ This is done against my will,” and that the witness had since said to Mrs. Blythe and others that he never would take another acknowledgment under similar circumstances, from a woman so much discomposed as Mrs. Blythe was; so painful to his feelings was the distress she manifested at the time.
N. Grayson, Esq., who testified to such want of free will and consent on the part of Mrs. Blythe, was the justice of the peace who gave the certificate of her acknowledgment on the mortgage in all the form required by the law, and which, it is contended, is of such solemnity, and of so high a character in legal estimation, that it was not to be assailed by the evidence offered and received. It appears that the justice, on subsequent reflection, felt not a little compunction of conscience, in allowing himself to have been instrumental, as the organ of the law, to take and certify to such an acknowledgment by this distressed, opposing, and defenceless wife. Eor we have him declaring “ that he never would take another acknowledgment under similar circumstances.” Well might he regret that on that occasion, as a public magistrate, he did not take an independent stand on the side of the law and of the oppressed wife.
Was not the certificate of the justice to the acknowledgment of Mrs. Blythe on the mortgage exhibited, in view of the facts disclosed, if believed, an imposition and fraud on her ?
Can it be that the law interposes any rule or obstacle to prevent the admission of the evidence offered and .received by the court below ? Here is a wife decidedly refusing to execute the mortgage in the presence of the justice and S. Louden the mortgagee, and flies, from the sitting-room to her chamber and bed, to seek solace in tears, having no friend to protect her. In delicate health she lies on her bed and continues to weep throughout the afternoon, where, in the midst of her tears, she is annoyed by a husband’s influence, and with the threat, if she did not sign, he would not remain on the property — thus threatening to desert her. It is said, A broken spirit who can bear ? Here were the spirit and feelings of a wife crushed by the unkindness of her husband. There were in the circumstances of this.case facts proper for the consideration of the jury, as evidence of imposition, undue influence, and fraud.
. From the facts in evidence, we cannot suppose S. Louden, [543]*543the plaintiff, ignorant of the circumvention and cruelty by which this wife was to be deprived of her remaining real estate, which she clung to as the home and shelter of her declining years. He was in the sitting-room, about midday, when she refused to execute the mortgage. Why was an afternoon required for the work, and a succession .of visits by the husband and others to her weeping chamber, if all was right and voluntary. He saw and heard enough, if believed by the jury, to put him on the inquiry, and make him ascertain for himself, whether she was executing this mortgage “of her own free will and accord.”
We are willing to believe that Mr. Ezra Blythe may, like many embarrassed men, have underrated his indebtedness, and did in sincerity suppose that he would be able to extricate himself and lift the mortgage. His wife, with more sagacity, had no such expectations, in which she was right.
Not to h-ave admitted the evidence offered would have been to place the certificate of a justice of the peace in such a case beyond inquiry, and above the most solemn records ; left wives as to their real estate in the power of their husbands and any justice of the peace they might select, and been a reflection on the administration of justice.
It is the opinion of this court that there was no error by the court below in admitting the evidence excepted to and assigned for error.
The errors assigned to the deposition taken on commission are not sustained. The charge of the court to the jury, if delivered, has not been brought up with the record.
Judgment of Court of Common Pleas affirmed.
Bell, J., dissented, for reasons assigned in his opinion filed.