Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-22
ahs Daily Eress and 9xtstai1x
vANkToN DAKOTA
Monday Evening, Sept. 22, 1878.
OPINIONS OF the SUPREME COURT.
PUsLIsuED BY AUTHORITY.
4. q. SMITH, Reporter.
DECEMBER TIE r N, 1878.
ELIZABETH A. WAxBoLE, Respondess,
OBED FooTE. Appellant.
liz The SUPREME CoURT OF TIE T1sRr-
TORY OF DAKOTA, AT THE JUNE TERM
1873.
A---- a. A~aN H
CONTINUED from the aoth.l

Az feQuireetO be done aud roppeaf OF tec-1
nd, can Only be done and msde y appear
y the record itself. or ap exempl!ncstiQn OIL
he record. BY the abots provisions OF the .
w, tits not the fact Of prisy exasninatic.
lone. but the recording, or ceftttying: or
bass the estate of the married woman. By
lection 406, II 10 expressly declared, that no
state passes, unless the ackn lied ment 10 7
u tho manner set out 10 section OIL and
he record nude By the ofhcer must show
70 tar % the wife 10 concerned, that che &C
knowledged, on . private exanination,
spart from her %hueband, that she executed
he instrument freely, and without any COM
OF. fear OF her husband.
How IL the record In this casei
1t 10 as follows. 20 far as her private ex-
animation 10 involved, to.wit: And the
: said Elizabeth Arcongs Wambole' of the
: said county aud territory, being examined
= separate and apart from her husband. &C
I" knowledged that she executed the said In.
' strument for tie ie1press purpose Of rdin-
= guiding all right Of doaoer in the premises
' abope conveyed" .o .qta \
Now, as tue great object IN view, both al
the common law and by statute, 10 to sscer.
tain whether the wife acted under fear OF
conpulsion,-how can it be pretended that
the above is an adequate compliance with
the law? There is = total absence of the
requisites, which, when the wife 10 under
such private examination, the officer is
bound TO ascertain, and to record. aud TO
certify. In Merriam ". Harsen, 2 Barb.
Oh. r. 232. the contention was 10 regard to
the absence of the word freely; although
the wife acknowledged. in that case, that
" she executed tho same without any fear,
" threat, or compulsion of her husband"
After . struggle. that record WAS held u :
|cient; because from the words set ont, there
arose an It Implication that the act was done
freely. .ar
Bronson said " there was no such acknowl
edgnent as the statute required for passing
the estate of teme overt."-and then adds,
" without an acknow ledgment on q private
Z" examination, &C., the deed was a mere
" nullity."
! The chancellor said, 10 Knowles Y. Nc
Camiy, 10 Paige, 346,-that where the le-
" gal estate is in the wife, except in the case
" Of q non resident Of the state, her deed or
4" contract, conveying or agreeing to convey
" such estate, if not acknowledged Accord
" lng to the statute, is . mere nulliIy, in
" equity as we'll as At law"
In Martin '. Dwelly. 6 Wend.. IL. Suth-
erlsnd j., referring to I r. L. 500 on this
subject. said that "it gives to her ceed,
(" uAen duly acknowledged. the same power
land effect as a fine; but If not acknowl-
I" edged according to the direction of the
" statute, 1t declares that no estate sball pass
" By 1t. It leaves 1t as it would have stood
cat the common Law, if the statute had new
"er been passed, absolutely void and mop
"erative.
In Bool y. MIX. supra, Bronson j., again
stated that " the acknowledgment of . mar
I" RED woman shall not be taken, except in
!" a particular Manner nor shall her estate
pass hy q conveyance not 90 acknowl-
edged"
Juetics Allen Tin Elmwood '. Klock. su'
prs) savs,-"'rhe statute still looks to the
certificate a. containthg the evidence thai
" its requirements have been complied With
Ito enable the deed to become operative
" The execution of . deed BY one not undel
" disabilities msy be operative to pass ~ ct
"nte, without an ack acknowledgment, and th,
i" execution may be proved BY any compe.
,Ts'ltesnt evidence. Not ia Of oeed OF 1 fen,
"covert. No essape pssses' except che con.
"~veyapce 10 acknowledged sa1equired b.
law. The disabilities Of the wife are onl,
I" removed BY q STRICT compliance with th'
Z" statute. A no deed can be recorded o.
"cept upon . proper certificate Of scknowl
"sdRmsnt,"" (see Gee. 500 Of civ. code Of thi
territory, "a deed Of . feme covert canno
talks effect f9r any' pu'pose except upon
1t uast 30 sdded. that in order to CON
pseheud the full meaning Of, section 528, re
i, curing the certificate to get forth "allth
matters required by isw to be done'o II kxoec
bys ihimJr s(tho ofioerS, "or2 proved bgS,
Ihim,""-it 10 necessary that section 50 b
Tread 10 connection % also the other Gee
lions 0f article III relating to "Proof 10
ckuovledghsst7o f insuuments!"
In 5thusi tracing the orieino andsins glvin
tlke contemporaneous exposition Of these su
3 liates incorporated into our code. this opln
iona has become sofkewhSt lengthy: Ii
IcapSe. of this. howevsrs ia. that sTtAorous
aud complete understanding Of, them j. es
!. kssntial in this. the flrst case ia, the territor
: .lIcalling for their 'interpretation.. L n Dc
. thatithere 10 any ambieuttyin the lsnguie,
but that . clearer light 10 shed from the hi
tory Of 2 statute. and from opinions IL, re.
pectsto Il, entertAiued By jurf6tS. At the 'tin
generally the ;best consttu c3ion Of Z statut
II In California, the examination Of Q ma
7 ried woman must DO separate and this q
a1hnly be shown BY the certificate 1t the %
cor taking the acknowledgment. whts
must conform TO the statutory requirement
lelSe the deed ID imperative aud void.
((Bours Y. ZSchafiah.a II Cal.,' 20l-49
M0rtaou y. Wilson, Is Cal. 49e; Lasde
!. Bol,au, te8z Id -406; Ewaldty. Corbett.
ia. 4gS; McLearn '. Benton. IS ID. 461
1855 also the following caseA ::-Hepburn
Dubois, l2epst. S45; MseeasI ' Boyls.
How, 1870 ;t}lidden '. Slruple. 50 Pa. ST.
400; Heaton '. Freyberger, SO Iowa, 1e
Willis Y. Gattman, IS Mics TEL; Lindl,
'. snSth. - Ills 5eS; Lane '. Doi,ck,
M~cLSasdS00l. ~
II rr COafiaued b. morrvW.