Pease v. Barbiers

10 Cal. 436

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Terry, C. J., delivered the opinion of the Court

Baldwin, J., concurring.

This is a proceeding against Barbiers and wife, to foreclose a mortgage on the homestead—the main question presented by the record being as to the sufficiency of the certificate of acknowledgment to prove the due execution of the mortgage by the wife.

The certificate is in the form prescribed by the statute, except that it does not state that the contents of the mortgage were explained to the wife.

The Homestead Act provides that “no mortgage, sale, or alienation,” of the homestead, shall be valid, without the signature of the wife to the same, “ acknowledged by her separate and apart from her husband.”

Ho form of acknowledgment is prescribed in the act, and it is evident that the Legislature intended that such acknowledgment should be taken in the manner pointed out in the “ Act concerning Conveyances,” which provides that no acknowledgment of a deed by a married woman shall be taken “unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge, in an examination' apart from, and without the hearing of her husband, that she executed the same voluntarily, and does not wish to retract;” and the act ■also requires that these facts shall be stated in the certificate of acknowledgment.

The Legislature designed, by these provisions, to prevent the execution of any conveyance by a married woman from being procured by deceit or misrepresentation, and this object could be effectually accomplished only by requiring the instrument to be explained to her before being acknowledged, in order that the execution might be retractéd if procured by improper influences.

Under our law, no presumption of knowledge on the part of a married woman of the contents of a deed, arises from the fact of executing it, and especially could no such presumption arise in the present case, as it appears from the instrument itself that the wife was unable to write.

We think the certificate insufficient to prove the due execution of the deed by the wife, and that the Court erred in entering a decree of foreclosure.

Judgment reversed, and cause remanded.