#### GILLESPIE’S LESSEE *v.*JOHNSTON AND WIGGINS.

Execution of a deed — acknowledgment—-judgment in partition — possession and acquiescence — deed of a married woman.

Where the-execution of a deed by the grantor is proven, and it appear to have been acknowledged before a justice in another state, the deed will be received as prima facie acknowledged.

The doubt about the severance of the jointinterest in partition without *& judgment of partition^*may be removed by proof of possession in severalty under the partition, and acquiescence in it.

The deed of a married woman is void as at common law, unless executed according to the provisions of the statute with her husband.

Ejectment for lot No. 7, in Cutter’s subdivision of Cincinnati. The plaintiff claimed title under Susan Cutter .one of the heirs of *232Seth Cutter, deceased. A deed was produced executed and acknowledged in Kentucky, the signature of the grantor proved. The plaintiff offeréd to read it to the jury.

*N. Wright,*

objected that the deed was not good without an acknowledgment before a magistrate, and here was no proof that the individual certifying the acknowledgment on this deed was a magistrate.

*N. Wright,*

objected that by the record it appeared there was no *judgment*of partition in the proceedings, and without judgment the interest of tenants in parcenary is not *severed.*

*V. Worthington,*for the plaintiff,

objected — that the deed was from a *femme covert,*without her husband, and void. He cited, 3 *Mass. R.*347.

*N. Wright,*

insisted that the wife was not required to join with her husband in the deed — our statute contemplated some *separate act of the wife.*

Lane, J.

It is true there is no proof that the individual certifying the acknowledgment of this deed was a magistrate. Where a party attempts to establish the execution of a deed solely by the certificate of acknowledgment, we are more particular than we are in cases where the execution is proved independent of the acknowledgment as in this case. There is proof that this deed was in fact executed by, the grantor, and it appears to have been duly acknowledged and recorded. We incline to think the execution prima facie established, and to admit the deed in evidence.

The plaintiff then offered a deed from Foster and wife (late Susan Cutter) with a record of the Court of Common Pleas of a partition amongst the heirs of Seth Cutter, in which lot No. 7, was set apart to Susan.

The plaintiff then introcjuced evidence of the possession of the heirs according to the partition, and their acquiescence in the partition. He then read the deed, and record, and rested.

On the part of the defence a deed from Susan Foster to Mr. Hargrave, was offered in evidence.

Lane, J.

By the statute, a married woman may unite with her husband in a deed, and in that way convey her interest in land. At common law a woman cannot make a deed. We think she cannot do so in this state except in the way pointed out by the legislature. .The deed is excluded — you can raise the point again hereafter if you desire to do so.

Verdict for the plaintiff.

*233Motion for a new trial, because Mrs. Foster’s deed was excluded, was submitted and overruled. Judgment on the verdict.