Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-09

COVERT III Iedi Goldlc pdSoCo OhAg "
virtue of her privy examination and
acknowledgment, and that the eertIh-
cate of the officer is the only evidence
admissible to prove that the require
ments of the law in regard to such ex-
animation and acknowledgment have
been complied with. Does the set of
1888 require that the whole Of the GER
| tificate prescribed by the act OfiS3l as
well as that of 1888, be endorsed upon
the deed as an essential condition to
the passing of the title of a femme
covert? If my conclusion be correct,
that the private examination of the
wife and the certificate thereof are
valid and effectual, though the hus-
band has not acknowledged the Joint
deed, 1t almost necessarily follows
that the only certificate essential to
the validity of the wife's deed is that
relating to her privy examination,
and that the certificate prescribed in
the act of 1881, which is the only one
! containing the personal acquaint-
ance +" clause, need not be prefixed to
the certificate Of the private examina-
ton contained in the act of 1888. The
act of 1921 had no reference to deeds of
married women. The certificate pre-
| scribed in that act did not affect the
operation of the deed-a as between the
parties. but operated as evidence and
Authorization merely for purposes of
| subsequent proof and registration.
| The act of 1888 extended the powers
of clerks of Courts to the taking of ac-
acknowledgements of the deeds of mar
ried women, and prescribed a further
certificate TO be added to that pre-
scribed by the former act, But the
| certificate of 1881 retained by the act
of 1888, had under both acts, the same
| operation and effect. 1t was an au-
| thenticatiOn merely, of the deed, and
had no reference to the private exam
! nation of the wife. 1t was the pri-
Yate examination and acknowledge
ment, and the certificate thereof,
which followed the first certificate,
that operated upon the title of the
| femme covert. Perhaps the first GER
| tifcate might be essential to entitie
| the deed to be registered, and used as
evidence thereby. 1t certainly would
be thus essential as to the interest Of
the husband But it is the best GER
tificate only which contains the results
of the private examination, t&Gt was
intended to have any effect upon the
| estate of the wife. | think the Obvi-
Gus intention Of the Legislature in the
act Of 1888, was to provide for TIE full
and complete authorization as to both
parties, of deeds executed by husband
and wife, thereby supplying an omis-
sion in the act Of 1881. With this
view, the act of 1888 re-enacts the
provisions of the previous statute.
But the provisions thus ~re-enacted
have the same force and effect in the
subsequent statute as in the prior one,
and in both statutes have reference to
matters Of registration and evidence
merely, The new matter IL theact Of
1888 consists Of the provision MAGE foB
taking and certifying the private eX-
animation of the wife; and it is upon
this, and not upon the provisions
brought forward from the act of 1881,
that tha validity of her conveyance
depends. This view is sustained by
the consideration Of some further pro-
visions of the act of 1889. 1t was pro-
Vided that when femmeS covert should
be unable for any cause to appear be-
fore the Clerk, ne might issue a COM
mission to a Justice of the Peace or
other officer to take her private exam
inatlou. The form of the commission
and of the certificate to be made by
the commissioner, are prescribed in
the act, and neither Of them contains
any statement that the officer is per-
sOnally acquainted with the femme;
thus showing that the Legislature did
not regard the personal acquaintance
clause as of vital importance. No
reason is e why the Legislature
should require the femme covert to ac-
knowledge the deed tWice-Once i'm
company with her husband, and again
upon her private examination after
wards. And in Montgomery vs.. Hob
son, ana R6iley Ys. Gordon, it was
held she was not required to do so I'M
der the statute of 1913. 1t is true than
the act of 1893 provides that the pro-
bate or acknowledgment of the due
execution of the deed by the husband
and the wife shall be made in the
same manner, and the form of the GER
tificate of such probate or acknowledge
ment shall be the same as is pointed
out in the act of 1881. But il is not
said that the omission of the Clerk to
comply with this direction shall rem
der the deed a nullity as to either hus-
band or wife; and as the matter to be
certified under these donations of the
statute is only the "due execution of
the deed, and not at all the private
examination on which the validity Of
her conveyance depends; as this is
matter which under all the legislation
of the State up to the passage Of the
act of 1888 would have had no effect I
as to the validity of the deed of a
femme covert, and is utterly inmate
rial now unless made absolutely essen
tial by the express terms of the stat
ute, it would be straining in favor of
literal teohnieality, and sticking in
the bark Of a remedial statute to hold
that an omission in this portion of the I
certificate would render the deed as to
the wife a nullity. Whatever forms
or precautions are required by the
statute for the protection of the inter-
ests of femmeS covert must be kept
and preserved; but l am not disposed
to add TO them useless teehnicalitieS,
which a operate only 70 embarrass
cenYeyapcing- and would, if enforced,
in most eases simply operate a fraud
a wrong.
The conclusion is that the chancellor
erred in dismissing the bill in this
cause; that the deed executed by Mrs.
KestersOn and husband was valid, and
operated to convey her estate in the
land, and ii must be so decreed.
BRITISH Half Hose, 81 50per dozen