O'Ferrall v. Simplot

4 Iowa 381

• Court: Supreme Court of Iowa
• Decided: July 1, 1857
• Status: Published

Opinion

Woodward, J.

The first question arises in the acknowledgment, as certified on the deed of Francis K. to Harbeson, and the question is, whether it may be shown by evidence aliunde, that everything required by statute was, in fact, done, although the magistrate has, through mistake, omitted to certify a part; and whether the certificate may not be amended upon such evidence. As a question standing upon authority, this is clearly settled by the following cases: Elliot v. Piersol, 1 McLean, 11; S. C. Pet. 328, 338 ; Jourdan v. Jourdan, 9 S. & R. 268 ; Watson's Lessee v. Baily, 1 Binn. 470; Barnet v. Barnet, 15 S. & R. 73; Jamison v. Jamison, 3 Whart. 457; Worthington's Lessee v. Young, 6 Ohio, 136; McFarland v. Febiger's Heirs, 6 Ib. 337 ; Carr v. Williams, 10 Ib. 305 ; Silliman v. Cummins, 13 Ib. 116; Purcell v. Goshon, 17 Ib. 105 ; Providence v. Manchester, 5 Mass. 59; Hoyden v. Wescott, 11 Conn. 129. And tbe reason of tbe .rule is shown in tbe same cases.

In Elliot v. Piersol, 1 Pet. 338-9, tbe Supreme Court of tbe Union states tbe question so as to cover tbe present case: “ Tbe general question involved in tbe first instruction is, Can tbe privy examination and acknowledgment of a deed, by a feme covert, so as to convey her estate, be legally proved by parol testimony? We bold that they cannot.” * * * * “ Wbat tbe law requires to be done and appear of record, can only be done and made to appear by tbe record itself, or an exemplification of the record. It is perfectly immaterial whether there be .an acknowledgment or privy examination in fact, or not, if there be no record made of tbe privy examination; for, by tbe express provisions of tbe law, it is not tbe fact of privy examination merely, but tbe recording of the fact, which makes the deed effectual to pass tbe estate of a feme covert.” The cases above cited from 1 Binney, 470, and 9 Sergeant & Rawle, 268, are much like tbe present one. In tbe latter, C. J. TlLGHMANN says: “In that case, (1 Binney,) tbe certificate of tbe magistrate was defective, and, in order to supply tbe defect, parol evidence was offered and was refused by tbe court. There would be no certainty in titles, if this kind of evidence were permitted. After the lapse of twenty years, tbe magistrate is called upon to declare wbat took place at tbe time of the acknowledgment. The law directs the magistrate to make bis certificate in writing, and be has made it. To that tbe world is to look, and to nothing else.”

Some of tbe cases indicate, that tbe law required tbe officer to record tbe fact in bis office. Perhaps this was in addition to the certificate upon the deed. But tbe cases in Pennsylvania, and others, show that tbe entering or recording it on tbe deed, is tbe same thing. The cases cited by tbe respondent do not controvert this doctrine. Not one of them, which we have been able to see, bolds tbe contrary. Tbe case of Chessuet v. Shane, 16 Ohio, 599, turns upon a relieving statute, and partly, perhaps, upon the portion of the certificate which was omitted — that is, the making the contents known. Upon principle, we should think this as important as any other part. But that this case was not understood to overrule totally the previous cases in Ohio, cited above, will probably appear from that of Purcell v. Goshon, 17 Ohio, 105, in which one of those cases is recognized. Or, if it does overrule them, it is upon the strength of the enabling statutes referred to. Some of the cases cited by respondent, recognize the right of the grantor to (contradict the certificate. Such is that of Jackson v. Schoonmaker, 4 Johns. 169. This right exists, for instance, when fraud is supposed in obtaining the acknowledgment, or when the certificate is alleged to be false, and it is proposed to show that the deed never was acknowledged. And other cases may exist. And this is the meaning of section 1230 of the Code, and of the act of 1840, referred to by respondent.

But this right is not to be confounded with the claim to supply the defects of the officer’s certificate, by other evidence; nor was the above section intended to open the door to the mischief which might be expected to follow the latter doctrine. See, also, Raverty et ux. v. Fridge, 3 McLane, 220; Barnet v. Barnet, 15 S. & R. 72; Jamison v. Jamison, 3 Wheat. 457; Landon v. Blythe, 16 Penn. 532; Young v. Thompson, 14 Ill. 380.

Let us look a moment at the former law and the statute. At common law, the wife’s dower could be barred only by the formal and expensive process of fine and common' recovery. The provisions of statute are a substitute for this, and there must be a substantial compliance. The above act, (1840, 35,) in section 8, provides, that “any officer taking the acknowledgment of such instrument in writing — that is, of one conveying or affecting real estate — or taking the relinquishment of the dower of a married woman, or any conveyance of the real estate of her husband, shall grant a certificate thereof, and cause such certificate to be indorsed on such instrument or conveyance.” By section 20, it is enacted, that she “ may relinquish her dower by any conveyance executed by berself and husband, and acknowledged and certified in the manner hereinafter prescribed.” And by section 23, the certificate of such relinquishment shall set forth, &c. This mode is instead of the fine and common recovery at common law, and clearly it must be in writing. And then the above cases, and their reasoning, apply with full force to the method prescribed by that act. We think the defects of the certificate cannot be supplied by other evidence. The authorities before referred to prove farther, that the matters omitted from the acknowledgment in the present instance, are essential to its validity; and that a court of chancery cannot extend its powers of relief so far as to amend it, by the assistance of extrinsic evidence.

The defendant suggests the further question, whether the complainant would be entitled to dower in this lot, if she had not signed the deed. And under this, he starts the query, whether the common law is the law of this state. This question has been suggested in this court before, but it has not been with apparent seriousness, and.therefore it has received no formal answer; and it is not now pressed, with ' an appearance demanding more than a suggestive reply. In the first place, according to our recollection of history, the common law was substituted for the civil by the Missouri territory, of which this state was once a part. In the next place, so many rights and titles — so great interests have grown up, as if by and under the common law, and not by and under the civil — that it would be the duty of a court to hold that the people brought it with them. The territory has from the beginning, including all private rights and titles, been administered upon the basis of the common law, and to hold that the civil, and not the common law, is the law of this state, would produce startling and revolutionary effects. The extent and magnitude of the interests involved, would require a court to hold to the common law, if there was no other reason.

But, besides this, all our laws, back to the beginning of the territory, recognize — assume the common law. They would many of them, be unmeaning, senseless, without it. All the proceedings of the courts would be so, and not a judgment heretofore recovered would be valid, nor a title under it. But the ordinance of 1787, for the government of the Northwest Territory, made it the law of that country; and that was extended over Wisconsin, and then the laws of Wisconsin, over Iowa. And although the statutes of Michigan and Wisconsin were repealed in 1840, the ordinance of 1787 was not affected, but remained in full vigor as before. That ordinance made the law of dower one of the fundamental laws. We will not stop to inquire in what it gave dower, for the act of January 25, 1839, (§ 44,) prescribes it, ■“ according to the course of the common lawand that was, that she was endowable of all the land of which the husband was seized during marriage. Thus stood the law of dower when the deed in this instance was made.

Again: respondent claims, that the law of 1839 was repealed by the act of 1843, without any saving clause; and thus, that law does not rule this cause: and then he urges that the act of 1843 was repealed by the Code in 1851, which was before the institution of this suit; and that complainant makes her claim under the Code. In the case of O'Ferrall v. Davis, 4 G\. Greene, 358, this court held that the wife’s right of dower is governed by the law in force at the time of the making of the deed, and not by that in force at the time of the husband’s death. This was recognized in Young v. Walcott, 1 Iowa, 174. No reason for departing from that decision is yet seen. See, also, Hitchcock v. Harrington, 6 Ohio, 290; Walker v. Schuyler, 10 Wend. 480.

The defendant and appellant also makes the question, whether the doweress is entitled to damages. A demand is alleged. By the original common law, the doweress could not recover damages for the detention of her dower. This was remedied by the'statute of Merton, 20 Hen. III, A. D. 1236. Under this statute it was held, that she should recover damages from the death of her husband, when he died seized; but if he did not die seized, but had aliened the land, she should recover damages from the time of making a demand only.

It becomes, in some measure important, then, to inquire what effect, if any, the statute of Merton has in this state. Experience, and the dictates of justice, produced the enactment of that statute, and they have lost none of their force in the periods which have passed since that time. It is urged that this ancient statute can have no effect here, because of the enactment of the sixth section of the act of July 80, 1840, (Special Session, 1840, chap. 29, 20,) which is, that “ none of the statutes of Great Britain shall be considered as law of this territory.” The enactment of this chapter, containing a repeal of the laws of Michigan and of Wisconsin, as well as the above declaration in reference to the statutes of Great Britain, was then, and has ever since been, considered of very doubtful wisdom, and of no less doubtful effect. It seemed to be taking a step in the dark. That act did not receive the approval of the governor of 'the territory. He was a man of age, experience, and of careful forethought, and his approval was withheld through doubts and fears of the consequences of such a step. The lawyer can readily perceive that there was much reason for hesitation. The statutes of England, from time to time, modified and meliorated the common law to a considerable extent. Some of them were necessary to deliver the nation and the law from feudal principles, and some were requisite to adapt the law to an improved state of society emerging from feudal semi-barbarism, and to suit an increasing spirit of commercial enterprise. In this view of them, these statutes were as much required by the people of America, as by those of the mother country. Many of them of a general character, and an enabling or remedial nature, have been adopted by the different states, (even by the new western ones,) either by express statute provision, or by re-enactment, or by judicial construction; the latter sometimes declaring them adopted, and sometimes considering them as become the common law of the state. Sufficient has probably been said to recall to our minds the importance of some of these acts, and the necessity that we should, in some manner, receive the benefit of the leading and most important of them. And these remarks will justify us in saying, that we are not disposed to give to the above-named section, relating to the statutes of Great Britain, any greater effect than is necessary.

Then the question is, whether the declaration of that section extends to the statutes of England. Great Britain is not the same with England, although it includes it. The greater part, if not all, of those beneficial acts, which have been adopted into the laws of the American States, were enacted before the union with Scotland. The periods at which the English statutes have been held to cease operating upon American law, have been different in different states. Some have stopped at the fourth of James I, which was about the period of the first emigration to this country; some have fixed the epoch of our revolution; and some, if we mistake not, that of the revolution of 1688. The act of 1840 may reasonably be considered as having prescribed the event of the union of the crown of England with that of Scotland, which was nearly contemporaneous with that of the English revolution, it having taken place in the year 1707. This is more reasonable, than to regard that declaration as to the statutes of Great Britain, as synonymous with a like declaration in relation to the statutes of England, which would receive support from neither history, language, nor the principles of interpretation. We conclude, therefore, that the statute of Merton is not deprived of any effect by the foregoing declaration of the act of 1840. What force, then, is to be given to it? We have not made the foregoing remarks, in order to answer this question in the fullest extent, for of this we are relieved, as will be shown hereafter — that is, there is no necessity for deciding whether damages would now be recovered under that statute alone ; but the law and the decisions, as they were held under it, are necessary to determine from whom those damages may be taken, and when, and from what time.

As to the mere question, whether damages are recoverable in an action for dower, it may be safely answered that they are, and ever have been, by our law. The act of December 29, 1888, relating to the action of right, in section one, declares that to be the proper remedy for recovering any interest in land; section 56 expressly recognizes it as the appropriate action for the recovery of dower; and section 21 gives damages, by way of the nse, occupation and profits accruing within six years prior to the commencement of the action. This act continued the law until the adoption of the Code. Stat. 1843, 527. That of February 16th, 1843, was but an amendment of it, (Stat. 1843, 257); and that relating to the action of ejectment does not interfere with it, at least in this respect. Stat. 1843, 259. Chap. 116 of the Code relates to actions for the recovery of real property, and the enactments of that chapter apply to “ any person having a valid subsisting interest in real property, and a right to the possession thereof.” Section 2027 in the same chapter, recognizes it as the proceeding to recover an interest in dower, and section 2008 gives damages under the name of the use and occupation for six years prior to the commencement of the action. It is immaterial, then, under which of these statutes the widow may claim, for under both she is entitled to them. But the terms of. both are very general, so much so as to apply to every kind of interest in land, and therefore it is necessary to go beyond them, to learn of whom, and from what time, they may be demanded. Can she recover them from the time of her husband’s death? Our statute says, for six years only. Can she recover them from the heir and his alienee, only, or also from the husband’s grantee ? Our statute does not answer; but the adjudications under the statute of Merton, inform us that she may recover against the grantee of the husband, if she has made demand, and only from the demand; and thus we perceive that the six years of our statute must be restrained by the time of making such demand. Bright’s Hus. & Wife, 407, §§ 32 to 47; 1 Hill’d on Real Prop. 144 to 151; Sedgwick on'Dam., 129 to 132. We learn, therefore, that the doweress is entitled to recover damages for the detention of her dower, from the alienee of her husband, or his grantee, as measured by the use and profits at least, from the time of the demand, pro* vided that were not more than six years prior to the commencement of the action.

Finally, the defendant claims, that the court below should have ordered the assignment of dower to be made in the three lots, for all the four. Michael Tiernan had become the owner of the four, and devised them to his executors, who conveyed No. 66 to the defendant, but still hold the first three, and an action for dower in them is now pending against the executors. These devisees consent that, if the complainant is entitled to dower in these lots, it may be assigned in the three first named, for the whole. At common law, this was done in a few instances only, and then, generally, on account of the nature of the property — as when it consisted of several mines; or on account of the inconvenience of dividing it, and setting out the dower by metes and bounds. But it was never done, it is apprehended, except when the husband died seized.

Two objections may be suggested to this course: If the widow takes one parcel instead of a third of each of three of which she is dowerable, she assumes the whole risk of the title in the parcel taken, and if she should be evicted, she has no voucher over. This consideration may not have weight in the present instance, when the title is the same to all; but in reference to a rule for general action, it has force. Another consideration of pertinency in some cases, is, that the fund or property to which the creditors of the deceased may resort — as, supposing Michael Tiernan himself had conveyed to the respondent — would be diminished by just so much as the respondent’s lot is relieved. Here, again, we admit that this argument may not have particular point in the present case, for the deceased did not convey the lot, but the executors' — or there may be no debts or other claims, but of this we are not informed — yet the rule adopted must apply to all. The consent of the executors would not take away the creditor’s power of interference; and, moreover, although the executors consent, the great question is, — does the doweress consent. The court cannot compel her thus- to take ber dower, and if sbe is not assenting, it cannot be done. Tbe present case shows no concurrence on -ber part. 1 Hilliard on Real Prop. 157, et seq ; 1 Bright’s Hus. and Wife, 367, et seq.. 404.

We are of tbe opinion that tbe decree of tbe District Court must be affirmed.