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

tGly mNdllu as W AGIs
The act of 1888 provides that the
deeds of husband and wife may be
proved by the subscribing witnesses
or acknowledged before the Clerk OF
the County Court, and it shall be the
| duty of said clerk before whom sald
| probate or acknowledgment is taken,
and after the said deed is 50 proven
and acknowledged as aforesaid to ex-
anime the wife privily and apart, etc.
That the husband must so join in the
deed conveying the wife's estate as 10
make it, in substance at least, the joint
| deed of husband and wife, is undOubt-
ed. Cope VS.. Meeks, Sd Head, 3oS.
| Whether it is essential to the validity
| of the deed as to the wife, that the
/ husband acknowledge as we'll as exc
| cute it, is a different and mere diff
| cult question. ] think, however, that
the statute in this respect is directory.
The clerk may take the probate or ac-
| knoWledgment of the deed as to the
| husband, and if he does so it is his
| duty afterwards to take the privy ex-
| animation of the wife. But if in any
case he should take the privy exam
nation of the wife first and the &C
acknowledgement of the husband after
wards. or should takethe acknowledge
| ment of the wife without any probate
! or acknowledgment by the husband
who had already acknowledged the
| deed, it would, l think, be sticking in
the dark of the statute to hold the
whole proceeding void. Judge Cody,
as the result of his discussion Of the
| subject of the distinction between dl-
rectory and mandatory provisions IN
statutes, states that "thOSe directions
| which are not of the essence of the
thing to be done, but which are given
| with a view merely to the proper or
i DERBY and prompt conduct OF the bust
| ness. and BY a failure to obey which
| the rights of those interested will not
be preiudiced, are not commonly to
be regarded as mandatory; and if the
act is performed, but not in the time
nor In the precise mode, it still may
be sufficient, if that which IS done ac-
| complisheS the substantial purpose OF
| the statute" Cody On COnst. Linn,
II. The essential thing to be accom-
plished in effecting a conveyance by
femmes covert, is the privy AXamina-
\ ton whereby it is ascertained that her
| execution of the instrument was vol
untary, free, and without fear, COM
| pulsiOn or undue influence. This was
! the essential thing in a conveyance by
| fine in England and in all the varying
legislation on this subject in this State
and in Rll the States Of the Union.
This has beeQ the one primary object
in view. Whatever statutory prOvis-
ions have reference to the complete
accomplishment of that object and the
protection of the femme covert must
| be considered as mandatory. But
general provisions of the statute in
regard to the mode of executing or
| authenticating such deeds, not having
reference TO the essential condition,
need not be considered as mandatory
unless circumstances or the obvious
intent of the Legislature so indicate.
1t is hardly correct LG say that the
right of Il femme covert to convey her
lands was conferred by statute, and
that therefore her conveyance is in
valid unless executed in strict cOmpli-
ance with ell the details of statutory
requirement. Her right to convey ex-
listed at common law, though it could
be exercised only by the process of fine
or recovery. These proceedings ware
never recognised in this State or in the
Colony or State of North Carolina,
and perhaps not in any of the original
thirteen Colonies. \. V, 81; 3 Ma
son. 3j1. But deeds were executed by
married women and authenticated in
various modes till the North Carolina
statute of 1715, which is the fOunda-
ton of our system, recognised and
regulated, rather than confused, the
,s-L+ Tho+ l+afVr4o IN ~ nrDn nhF
Tecites rs follows:
WHEREAS, The legal way of pass
ing lands where the estate is in a
femme covert, is by fine and recovery,
and it having been formerly practical
bic in this government Zines and re-
coveries not being in use here) that
sales have been made by the husband
with the Wife'S consent, and some
times by sales from them both, and
acknowledged in court, the Wife-frst
being privily examined in court
whether she acknowledged the same
freely; be it enacted" etc.
Such statutes are an enlargement of
a common law right facilitating its
exercise, but not originating the right.
\. y, D, The deed is valid as to
the husband, except as against cred
itors and bona tide purchasers, upon
execution and delivery merely, With
out acknowledgment by him or regis
tratiOn.
So far as the estate of the husband
in the Wifo's land is concerned, no eff
feet is given &c The deed by his &C
acknowledgement. The reason Why the
husband was required to join with his
wife in the conveyance was, that his
assent might appear upon the face of
II. and to show he was present to pro-
tect her from imposition. Pr. Mckin-
new. Judge, Head, 88S. IN the pres
ent case, the husband executed the |
deed with his wife, thereby showing
his assent upon the face of it; and
he appeared with her before the clerk,
as the certificate shows, thereby being
in position rs efficiently TO protect
her from imposition as if he had then
and there himself acknowledged it.
It Is difficult ~ see why the omission
of an act on the part Of the husband
not tending to the protection OF the
wife, and which, whether performed
or omitted, could have no effect upon
the passing of his estate, should so
fatally effect the passing of hers. The
usual convenient and very proper |
practice is undoubtedly for husband
and wife to appear together before the
proper officer who takes on the same
occasion the acknowledgment of the
one, and the privy examination of the
other; and it might be considered
that the statute was passed as statutes
often are, in view Of the existence of
those facts, absolutely essential to the
validity of acts done underline statute.
And | think it would be combining
ourselves to a very narrow and tech
nical construction, and grasping at the
shadow while losing the substance, to
hold in the present case that while the
husband had executed the deed jointly
With his wife, and had appeared with
her before the officer and her privy
examination and acknowledgment
had been duly taken and certified, the
deed of the wife should be a nullity
because the husband failed to make
an acknowledgment which could have
effect upon the operation of the
deed as to him; which could show no
than his acts had already
shown his assent to his wife's convey
ance and which could not in this case
in NJ other operate as q protection
TO the wife against fraud or inpC-
To Justify the Court in hold
such an apparently immaterial act
10 be an absolute essential to the
validity of a deed, should require a
slaar aynrneaipn of n 1aniSIa4iun infon-