Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-20

Jee9stly 4sss6sxsa 3stststss
vAkkToN DAKOTA 81
Saturday Evening, Sept 20, 1871.
OF THE SUPREME COURT.
PUBLISHED ~ AUTHORITY.
n. q. SMITH. Reporter.
TERN, 1878.
ELlzABrrH A. WAxBoLz, Re.pondest
"a OBED Foors, Appellant.
In THE SUPREME Couar OF THE TERH1.
TOY OF DAxoTA, At TIE Juss TEEA
z IContinued from the lsth.l
And tho record Of the 6ne WAS evidescs
of the seprivste examination Of the marited
woman, and could not be c~ontradistsd.
(Bac. Abr. Fines and Recov., c.. Aud 90
the m3dern- certificate cannot b. legally
proved BY pa,ol.s 10 the plAce Of thk com.
mon law mode. and 40 . sort OF subsltute
for it. the Legislature OF New York. % early
'as5l87l, enacted that no estate Of Q tene
without Q previous acknowledgment made
~bysher,apart from her 1husbanus aud on .
pttvste examination, s.thst she executed the
-1ams freely, without any fear orcompulslon'
Of her husband !" aud . certificate thereof
purporting that che bad been 60 privately
examined. Endorsed on the deed s2d sigaed
by the officer before whom the sctnowl.
edgment was made. (See act of 1871 in 8
r &. App. %; 2 Kent's Com. 100; Jack
son '. Gilchrist. Is Johns. 1907 Bool y.
Mix. supra.) The same provision was re-
enacted in that state, IN 1858, end sgain In
1901 and again in 1919. e Greenl. 90 s
g.; 3 r. 8. App. 28, 30; I Il. L. 369). 10
each of the acts referred to, the certificate
Of the officer that the acknowledgment of
the execution of tho CONVEYANCE was made
upon such private examination Of the wife,
spsrt from her husband. Was made essential
to the operation OF the deed. Without this
certificate, no estate Of q feme covert could
pass BY deed. The law required not only
the private examination, but it also required
tue certificate Of the fact to be made II tht
tine, aud ss . part Of the Transaction: ant
the fact could not, under these statutes, b,
made to appear except BY the certificate
The certificate took the place Of the recOrt
Of the examination 10 open court. and per
Peirsol, I Peters. 1928, 1t was hold, that TIL
| npt0oto ava nSna0s0 and Observation-Disclosures
Of her deed cannot be proved by parol, bu
i. must appear BY the certificate or recor,
made at the time. In the same case it va
said, but the capacity OF tho feme covert L
convey her estate by deed being the creatur
of statute law,-to make her deed effectuaI
The forms and sOlsmnities prescribed b
The statutes must be pursued"
But So to New York-in the revision Q
the laws there in 1880, the same provision
as above was substantially re.epacted. Th
language employed is slightly different
aud the provision in relation to q certifcat
is placed in q section by itself. ]
ia provided, !. That no estate ofa marie
woman shall pass by any conveyance nc
acknowledged as required by the act; 90
2, That the officer who eball take such az
know ledRment shall endorse a certidcal
thereof, signed by himself, on the convey
ance, snd IN SUCH certificate shall set fort
tie matters therein before required to be done
u r. s. 75s. IS 10. l5).
In Albany Fire lbs. Co, Y. Bay, 4 Com
stock. IA, Jewett j.. in referring to the az
of177l, said that "this act prescribing tn
form in which the deed of Q feme cover
should be acknowledged in order to pas
her real estate, has been Substantially con
tinued in respect to married women resid
ling in this state, in the successive revision
"of the laws"
The above is . synopsis of the Legislation
of New York embracing l R. 8, 1852, de
rived from the opinion Of Allen J.. in Ell
wood v. Klock, Is Barb, 50,-and from th
other authorities named. And the import
ance of such eview comes apparent, whel
it is known that our civil code is in grea
part derived, At least in the respects unde
confederation from the revised statutes
that state, in force at the time of the codif
cation.
The civil code of this territory adopte
January 18th, 1885, was originally the pre-
duct Of the labors of eminent %jurists Of th,
state, whose purpose was to give the law
1t then existed there, and to specify such q
terations and amendments therein ~ the
should deem proper.
Accordingly, section 1856 of our code VI
taken from ! r. 8. 75S : 10, modified b
making the requirement apply to grants e,
ecuted, and Acknowledgements taken With
the state, or territory, instead Of to acknow
edgments, wherever taken, Of . married v,
man residing in the state OF territory.
1t is q follows,-"no estate in the 10,
property Of q married woman passes b
ANY grant purporting TO BE executed OF y
"knowledged BY her within this t~erritor,
~"unless the grant il acknowledged BY b,
"in the manner prescribed b. section 52l,
Section 81 was also taken from / r.
SO, 3 10; and 10 - follews:-"Sec. 52l. IT
acknowledgment of . married woman
ian instrument, purPortihg to be execute
"by her, cannot Be taken, uiihin this ter.
tory, unless she acknowledge to The oa