The opinion of the court was delivered by
McIver, A. J.
This was an action to recover possession of [407]*407real estate, the title to which, it was conceded, was at one time in Mrs. Agnes D. McLaurin. The plaintiffs claim as heirs-at-law of Mrs. McLaurin, and the defendants, who are the heirs-at-law of Isaac J. Chandler, claim under an alleged conveyance from her to him. The land in question being the estate of inheritance of Mrs. McLaurin prior to her marriage with the defendant, D. B. McLaurin, his interest in it was sold, after the marriage, under executions against him, and bought by said Chandler, who took a deed for the same from the sheriff dated January 4th, 1840.
On January 25th, 1841, Mrs. McLaurin, while still a feme covert, executed a paper purporting to be a deed conveying the tract of land in question to the said Chandler. This paper is in the usual form of a conveyance of real estate, with covenant of warranty, and recites, as a consideration, “the sum of one thousand nine hundred and eleven dollars to me paid or secured to be paid by Isaac J. Chandler.” There is nothing in the paper indicating that Mrs. McLaurin was at the time a married woman, and no allusion is made to the fact that her husband’s interest in the land had been previously sold by the sheriff and bought by Chandler, but, on the contrary, it appears to be simply the independent deed of a feme sole. Upon this instrument there is endorsed a certificate signed by Mrs. McLaurin and by Mason Bernes, one of the justices of the quorum, substantially in the form prescribed by the act of 1795, for the renunciation of the wife’s inheritance, with the important exception, however, that it contains no declaration “ that she did, at least seven days before such examination, actually join her husband in executing such release.” Whether this certificate was under the seal of the justice is one of the questions of fact in the case.
Two defenses were set up : 1. That Chandler took a legal title under the papers above stated. 2. That if the court should hold that there was no valid release of Mrs. McLaurin’s estate of inheritance, then the payment of the purchase-money, acknowledged by the paper purporting to be the deed of Mrs. McLaurin, operates as an equitable estoppel, and prevents her and those who claim under her as heirs-at-law from disputing the title of Chandler, under whom the defendants claim.
The case was referred to three referees “ to hear and determine [408]*408the whole issues in the action,” and they made a report finding, in substance, as matters of fact: 1. That the certificate of the justice was not under seal. 2. That the consideration mentioned in the deed had not, in fact, been paid; and, as matter of law, that the estate of Mrs. McLaurin had never been conveyed to Chandler, and that upon the termination of the coverture by her death, her estate descended to the plaintiffs as her heirs-at-law. They also found that the purchase-money mentioned in the deed having never, in fact, been paid, there was no foundation for the equitable estoppel insisted upon by the defendants. Accordingly they found that the plaintiffs were entitled to recover the land described in the complaint, with five dollars damages, and, also, the costs of the case. This report, upon exceptions thereto, was heard by the Circuit judge, who overruled the exceptions and confirmed the report of the referees, and from his judgment this appeal has been taken.
The questions raised by the appeal are: 1. As to the sufficiency of the alleged release of inheritance. 2. As to the equitable estoppel. 3. As' to the competency of certain testimony, of which a more particular statement will hereinafter be made.
As the law stood at the time of the transactions now brought in question, there can be no doubt that a married woman was not capable of binding herself bjr deed unless vested with power so to do by some act of the legislature or by some will or deed, and then only in the manner and to the extent prescribed by such act, will or deed. Brown v. Spann, 2 Mill Con. R. 12; Hays v. Hays, 5 Rich. 38. These and other cases cited in respondent's brief show with what rigid exactness our courts required that all the provisions of the statute providing the mode by which a married woman might release her inheritance in real estate should be complied with. As is said in Pitts v. Wicker, 3 Hill 199 : “The right of inheritance of a married woman is protected with jealous vigilance by the law. She cannot be deprived of it but by a scrupulous adherence to the statute providing the mode in which a married woman may part with her inheritance in land.” The real inquiry, therefore, in this case is whether the papers claimed to operate as a release of Mrs. Mc-Laurin's inheritance are in compliance with the act of 1795 (5 [409]*409Stat. 257). That act provides, amongst other things, that a wife may bar herself of her inheritance “ by joining with her husband in a release to the purport of the one hereinbefore prescribed,” provided she will go before some judge or justice and declare, amongst other things, “that she did, at least seven days before such examination, actually join her husband in executing such release,” and that a certificate to this effect signed by the woman and under the hand and seal of the judge or justice “ shall be endorsed on the release, or contained in a separate instrument of writing to the same effect.”
It is very manifest that the terms of this act were not complied with. The wife did not join her husband in executing the release which is expressly required by the act, and the certificate does not contain the declaration of the wife, which the act likewise expressly requires, “ that she did, at least seven days before such examination, actually join her husband in executing such release,” and indeed could not, consistently with the fact, contain any such declaration. There is not even the semblance of any concurrence of action on the part of husband and wife in conveying away her estate. The paper purporting to be a deed, signed by Mrs. McLaurin, makes no allusion to her husband whatever. It does not even purport to be the deed of a married woman, but, on the contrary, appears on its face to be the deed of a feme solé. It cannot be connected with the deed from the sheriff' conveying the interest of her husband, for it does not even allude to such a conveyance. The two papers purport to convey separate and distinct interests — one the interest of the husband, the other the interest of the wife — and there is nothing whatever indicating any connection between them.
In Page v. Page, 6 Cush. 196, citing Powell v. Monson, 3 Mason 347, and Shaw v. Russ, 2 Shep. 432, it was held that the deed of a married woman, executed by her alone, relinquishing her dower in land previously conveyed by her husband, by his separate deed, did not bar her of her dower. And although this was a case of dower, yet as the statutes of Massachusetts prescribing the mode of releasing dower are very much the same as our statute in reference to the mode of releasing inheritance— requiring the wife to join with her husband in executing the deed— [410]*410the principles there decided would apply to the case now under consideration. The paper purporting to be the deed of Mrs. McLaurin must, therefore, be regarded as a nullity.
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The opinion of the court was delivered by
McIver, A. J.
This was an action to recover possession of [407]*407real estate, the title to which, it was conceded, was at one time in Mrs. Agnes D. McLaurin. The plaintiffs claim as heirs-at-law of Mrs. McLaurin, and the defendants, who are the heirs-at-law of Isaac J. Chandler, claim under an alleged conveyance from her to him. The land in question being the estate of inheritance of Mrs. McLaurin prior to her marriage with the defendant, D. B. McLaurin, his interest in it was sold, after the marriage, under executions against him, and bought by said Chandler, who took a deed for the same from the sheriff dated January 4th, 1840.
On January 25th, 1841, Mrs. McLaurin, while still a feme covert, executed a paper purporting to be a deed conveying the tract of land in question to the said Chandler. This paper is in the usual form of a conveyance of real estate, with covenant of warranty, and recites, as a consideration, “the sum of one thousand nine hundred and eleven dollars to me paid or secured to be paid by Isaac J. Chandler.” There is nothing in the paper indicating that Mrs. McLaurin was at the time a married woman, and no allusion is made to the fact that her husband’s interest in the land had been previously sold by the sheriff and bought by Chandler, but, on the contrary, it appears to be simply the independent deed of a feme sole. Upon this instrument there is endorsed a certificate signed by Mrs. McLaurin and by Mason Bernes, one of the justices of the quorum, substantially in the form prescribed by the act of 1795, for the renunciation of the wife’s inheritance, with the important exception, however, that it contains no declaration “ that she did, at least seven days before such examination, actually join her husband in executing such release.” Whether this certificate was under the seal of the justice is one of the questions of fact in the case.
Two defenses were set up : 1. That Chandler took a legal title under the papers above stated. 2. That if the court should hold that there was no valid release of Mrs. McLaurin’s estate of inheritance, then the payment of the purchase-money, acknowledged by the paper purporting to be the deed of Mrs. McLaurin, operates as an equitable estoppel, and prevents her and those who claim under her as heirs-at-law from disputing the title of Chandler, under whom the defendants claim.
The case was referred to three referees “ to hear and determine [408]*408the whole issues in the action,” and they made a report finding, in substance, as matters of fact: 1. That the certificate of the justice was not under seal. 2. That the consideration mentioned in the deed had not, in fact, been paid; and, as matter of law, that the estate of Mrs. McLaurin had never been conveyed to Chandler, and that upon the termination of the coverture by her death, her estate descended to the plaintiffs as her heirs-at-law. They also found that the purchase-money mentioned in the deed having never, in fact, been paid, there was no foundation for the equitable estoppel insisted upon by the defendants. Accordingly they found that the plaintiffs were entitled to recover the land described in the complaint, with five dollars damages, and, also, the costs of the case. This report, upon exceptions thereto, was heard by the Circuit judge, who overruled the exceptions and confirmed the report of the referees, and from his judgment this appeal has been taken.
The questions raised by the appeal are: 1. As to the sufficiency of the alleged release of inheritance. 2. As to the equitable estoppel. 3. As' to the competency of certain testimony, of which a more particular statement will hereinafter be made.
As the law stood at the time of the transactions now brought in question, there can be no doubt that a married woman was not capable of binding herself bjr deed unless vested with power so to do by some act of the legislature or by some will or deed, and then only in the manner and to the extent prescribed by such act, will or deed. Brown v. Spann, 2 Mill Con. R. 12; Hays v. Hays, 5 Rich. 38. These and other cases cited in respondent's brief show with what rigid exactness our courts required that all the provisions of the statute providing the mode by which a married woman might release her inheritance in real estate should be complied with. As is said in Pitts v. Wicker, 3 Hill 199 : “The right of inheritance of a married woman is protected with jealous vigilance by the law. She cannot be deprived of it but by a scrupulous adherence to the statute providing the mode in which a married woman may part with her inheritance in land.” The real inquiry, therefore, in this case is whether the papers claimed to operate as a release of Mrs. Mc-Laurin's inheritance are in compliance with the act of 1795 (5 [409]*409Stat. 257). That act provides, amongst other things, that a wife may bar herself of her inheritance “ by joining with her husband in a release to the purport of the one hereinbefore prescribed,” provided she will go before some judge or justice and declare, amongst other things, “that she did, at least seven days before such examination, actually join her husband in executing such release,” and that a certificate to this effect signed by the woman and under the hand and seal of the judge or justice “ shall be endorsed on the release, or contained in a separate instrument of writing to the same effect.”
It is very manifest that the terms of this act were not complied with. The wife did not join her husband in executing the release which is expressly required by the act, and the certificate does not contain the declaration of the wife, which the act likewise expressly requires, “ that she did, at least seven days before such examination, actually join her husband in executing such release,” and indeed could not, consistently with the fact, contain any such declaration. There is not even the semblance of any concurrence of action on the part of husband and wife in conveying away her estate. The paper purporting to be a deed, signed by Mrs. McLaurin, makes no allusion to her husband whatever. It does not even purport to be the deed of a married woman, but, on the contrary, appears on its face to be the deed of a feme solé. It cannot be connected with the deed from the sheriff' conveying the interest of her husband, for it does not even allude to such a conveyance. The two papers purport to convey separate and distinct interests — one the interest of the husband, the other the interest of the wife — and there is nothing whatever indicating any connection between them.
In Page v. Page, 6 Cush. 196, citing Powell v. Monson, 3 Mason 347, and Shaw v. Russ, 2 Shep. 432, it was held that the deed of a married woman, executed by her alone, relinquishing her dower in land previously conveyed by her husband, by his separate deed, did not bar her of her dower. And although this was a case of dower, yet as the statutes of Massachusetts prescribing the mode of releasing dower are very much the same as our statute in reference to the mode of releasing inheritance— requiring the wife to join with her husband in executing the deed— [410]*410the principles there decided would apply to the case now under consideration. The paper purporting to be the deed of Mrs. McLaurin must, therefore, be regarded as a nullity.
There is also another fatal objection to the alleged release of inheritance. The act expressly requires that the certificate shall be under the hand and seal of the justice, but the fact as found by the referees and by the Circuit judge, is that there was no seal, affixed to the name of the justice, and we see no ground to impeach such finding of fact. In addition to the fact that the act expressly requires that the certificate shall be under seal, it has been distinctly decided that the want of a seal is fatal to the validity of the release. McCreary v. McCreary, 9 Rich. Eq. 34.
As to the equitable estoppel relied upon as a defense, it would 1)0 quite sufficient to say that the fact upon which it is based, viz., the payment of the purchase-money, has been found against the appellants by the referees, and their finding has been concurred in by the Circuit judge. This, according to the well-settled rule of this court, is conclusive here, unless such finding is without any evidence to support it, or is manifestly against the weight of the evidence. It certainly cannot be sa'id that there was no evidence to support the finding, and we cannot say that it is manifestly against the weight of the evidence. We may add, however, that even if this fact were established we do not think that it would work an estoppel. For, as was well argued by respondent’s counsel, such a proposition, if adopted as a rule of law, would effectually destroy all the safeguards provided by statute for the protection of the rights of married women. The statute prescribes certain formalities which must be observed in order to l’ender the release of a married woman’s inheritance valid; but if the mere fact that the purchase-money has been paid to the married woman be sufficient to divest her or her heirs of the estate, then the provisions of the statute might, in every instance, be very easily defeated, and the protection which the statute was designed to throw around the rights of married women would become a mere delusion, and the provisions of the statute rendered wholly nugatory.-
The next inquiry is whether D. B. McLaurin, a party to the action, was a competent witness, under Section 415 of the code, [411]*411to testify to a conversation between his wife and Chandler, the deceased ancestor of the defendants. - It will be observed that the exception to the general rule established by that section of the code is “ that no party to the action or proceeding * * * shall be examined in regard to any transaction or communication between such ^dtness and a person at the time of such examination deceased * * * as a witness against a party then prosecuting or defending the action as executor, administrator, heir-at law,” &c., when the interest of such witness can in any way be affected by such examination, but it does not preclude a party from testifying to a transaction or communication between such deceased person and another. Hence, while L. B. McLaurin would not' have been competent to testify as to any transaction or communication between himself and Chandler, the terms of the statute do not prevent him from testifying as to a conversation between his wife and Chandler. Roe v. Harrison, 9 S. C. 279 ; Hughey v. Eichelberger, 11 S. C. 49. It is clear, therefore, that there was no error in admitting the testimony of D. B. McLaurin as to what passed between his wife and Chandler.
The only remaining inquiry is whether there was error in excluding the deposition of Henry Spann, taken by the clerk under the act of February 15th, 1872, (15 Stat. 41.) It seems that the testimony of this witness had been taken by the clerk, under that act, some time before the hearing by the referees. At that hearing, Spann was present, and was examined and cross-examined orally, and after the conclusion of the examination the defendants offered in evidence the deposition of Spann taken before the clerk, which, upon objection, was ruled inadmissible upon the ground that the testimony of the witness, taken ore tenus, superseded the deposition of the witness taken by the clerk. This ruling seems to be in accordance with the rule in regard to testimony taken de bene esse, but this deposition was not so taken; but, on the contrary, it was taken under the provisions of a special statute, and we must look alone to the jn’ovisions of that statute for the rule to govern us in regard to such testimony. The statute, after providing for taking the deposition of any witness, not simply such as could have been examined de bene esse under the old law, declares as follows: “ And the deposi[412]*412tions so taken shall be certified by the clerk before whom such examination was had, and shall be read in evidence at the trial of the said cause or proceeding, subject, nevertheless, to the right of either party to require the personal attendance and viva voce examination of the witness or witnesses at the trial of said cause or proceeding.” Under the imperative language of this statute we think the defendants had the right to have the deposition of Spann read in evidence at the trial, which, however, did hot preclude the viva voce examination of the witness if either party desired it.' The statute does not assimilate the taking of such depositions to the taking of testimony de bene esse, but, on the contrary, expressly requires that such depositions “ shall be read in evidence at the trial,” with the privilege to either party to have the witness examined ore tenus, if his attendance can be procured without delaying the proceedings. ■
But, while there was error in this respect, we think it was wholly immaterial and that it could not affect the result. For, as we have determined that the alleged release of inheritance by Mrs. McLaurin was an absolute nullity, and that neither she nor those who claim under her would be estopped by the payment of the purchase-money to her, even if such fact had been fully proved, we cannot conceive how the testimony improperly excluded could affect the result. This, therefore, affords no ground for reversing the judgment below. Susong v. Vaiden, 10 S. C. 247.
The judgment of this court is that the judgment of the Circuit court be affirmed.
Simpson, C. J., and McGowan, A. J., concurred.