Smith v. Williams

38 Miss. 48

• Court: Mississippi Supreme Court
• Decided: October 15, 1859
• Status: Published

Opinion

HARRIS, J.,

delivered the opinion of the court.

. The plaintiff brought his action of replevin against the defendant to recover possession of a slave. To support his title, plaintiff offered in evidence a deed of trust executed by Davis Gr. Carter and his wife, Lucinda, to the plaintiff and one Mitchell as trustees. This deed was objected to, on the ground that it had not been proven or acknowledged according to law, so as to entitle it to record, in this, that the wife only acknowledged when examined separately, private and apart from her-husband, that she had executed said deed in trust freely, &c., instead of acknowledging that she had signed, sealed, and delivered said deed.

This objection was sustained by the court, and the. deed excluded from the jury.

Exceptions were taken and filed to this ruling, and this is the principal error insisted on here for reversal.

The term executed, used in this certificate of acknowledgment, imports, both in its general legal acceptation, as well as its statutory meaning, as used in the act directing the mode , of proof or acknowledgment of deeds b j femes covert, not only signing and sealing, but also delivery. It embraces every act which the law makes it necessary to do, on the part of the grantor to perfect the conveyance made by him.

See 1 Bouvier’s Law Diet. 494, and our statutes in relation to proof and acknowledgments of deeds, &c.

This assignment of error is, therefore, well taken.

It is next insisted that the court erred in ruling out the answer of Mrs. Carter to the 1st direct interrogatory propounded to her, as well as her answer to the 4th cross interrogatory, so far as the answers were not immediately responsive to the questions. ■

It appears that this deposition of a married lady was taken by consent in the presence of the counsel of the respective parties. No objection was made at the time to the answers on this ground. Each party had a full opportunity of examining the witness as to the matters objected to, and no injury could result from the admission of the testimony, so far as the objection now made is concerned. We think it was error to exclude this testimony on the ground stated.

Let the judgment be reversed, cause remanded, and a venire de novo awarded.