Daily Los Angeles herald., 1883-01-12
Gro. W. punrrr, rr Al,

vs..
RIcnARp CARNEY.
Salt to quiet title in favor OF plaintiff to
certain lands,
On the 2Gth day Of July. 1877, Maria
Espinosa, a married woman, conveyed
toGeoree w. Durfee and James ID. Dur
fee. for tho consideration of two hun
drcd dollars, her interest in the Rancho
Dolores or Felipe Lugo, in the county
OF Los Angeles, being the same which
she inherited from her father, Teodoro
Romero. To which conveyance was at
tached the following certificate OF ac-
acknowledgement;
STATE OF CALIroRSIA,
CourrY on Los ANGELES.
On this twenty.sixth day OF July, A.
D. one thousand, eight hundred and
seventy seven, personally appeared be-
fore me, John Hopper, Justice OF the
Peace in and for the said county of Los
Angeles, Maria Epifania Espinosa, whose
name is subscribed to the annexed
instrument as party thereto, per-
aonally known to me to be
the same person described In and
who executed the said annexed instru.
ment as party thereto, who has duly ac'
knowledged to me that she executed the
aame freely and voluntarily, and for tn,
uses and purposes therein mentioned.
In witness whereof / have hereuntc
set my baud and affixed my private seal
(having no seal Of ofiicel, the day and
year in this certificate first above writ
ten. JOHN HOPPER,
faPAI1 Jnstien of the Pence
This decd was recorded July 2Sth,
1877. On the 10Th of Dec. 1881. the
deed was acknowledged before Notary
Public and proper certificate OF married
womens acknowledgment by said Notary
attached.
When Mrs. Espinosa conveyed to
Garvoy she gave him notice that she had
already executed deed Of the land to
George w. and James d. Durfee. Gar
vey had search made Of the title and
ascertained thereby the existence Of the
deed TO the Durtees. The re-acknow-
lodged deed was not at that time record
I'D nor in existence.
Section 1863 Of the Civil Code provides
that: EITHER husband or wife may
enter into any engagement with the
sother or with any other person respect
ing property which either might have II
unmarried; subject in transactions be-
tween themselves, TO the general inter
est which control tho actions Of persons
occupying confidential relations with
each other as defined by the title on
trusts" But the power to contract and
the mode Of contracting are quite differ
ent things, and are regulated by differ
ent provisions Of the code.
Section 1883 declares: "The &C.
acknowledgement of married woman to
m instrument purporting to be executed
by her must not be taken unless she is
made acquainted by the officer
with the contents of the
instrument on an examination without
the hearing Of her husband; nor certi-
fed, unless she thereupon acknowl'
edge to the officer that she executed
the instrument. and that sho does not
wish to retract such execution.
Section 1887 provides; "a convey
ance by married woman has the same
effect as il she was unmarried, and be
acknowledged in the same manner, ex.
cept as mentioned in the last section;
but such conveyance has no validity
until so acknowledged.
Section ll9l enacts that the certificate
Of acknowledgment of married woman
must be substantially in the following
form;
State Of --, County OF ----.
On this - day of - in the year before
me, there insert the name and quality Of
the officer) personally appeared -
known or proved to mo on the oath -
to be the person whose name is sub.
scribed to the within instrument, dc.
scribed as married woman; and upon
an examination without the hearing OF
her husband l made her acquainted with
the contents of tho instrument, anC
thereupon she acknowledged to mo tina
she executed the same, and that she doe'
not wish 10 retract such execution.
As to the acknowledgment, Mrs. Is.
pinosa testified: "When ] signed the
deed, Mr.. Hopper came to where l was,
and he interpreted it to me-" j. d.
Dnrfee, one of the grantees, testifies;
"The deed was signed at her house.
John Hopper, myself and Mrs. Espinosa
wero present. Tho deed was read to
her" When Durfee was recalled he
testified that the above mentioned three
parties were present and that no one
else was present when the deed was exc.
cuted.
1t does not appear that Mrs. Espinosa,
in her acknowledgment of the deed to
the Durfecs, made any declaration that
she did not wish to retract the execution
OF the same, Or that she was examined
on that subject.
In Landers VS.. Bolton, 26, Cal, 40S,
the Supreme Court held; "For the
purpose OF protecting her (the married
woman against fraud, coercion and un-
due influence OF any kind, the acknowl.
edgement of the wife is made a part OF
the deed itself, or, perhaps, more cor.
rectly speaking, an indispensable part
OF the evidence of its execution. To
secure perfect freedom of action, the
wife must be examined separate aud
apart from her husband, and even at the
last moment the right of rotracting is
secured to her."
In Ewald vs.. Corbett, the Court held;
"The deed of o married woman OF her
separate property, which is not scknowl.
edged in the manner prescribed by the
Act of April IL, 1850, defining the rights
OF husband and wife, is imperative and
void"
In Loonis va. Lazzarovich, the Court
decided: "a Court of Equity cannot
reform the deed Of married woman. "
In that case the Courts say OF married
woman: "At common law she possessed
no power to convey her lands, except
by fine and recovery, and that law con
stitutes the basis Of our jurisprudence;
and rights and liabilities must be de.
sermined in accordance with its princi.
pies, except so far as they are modified
by statutes" "By chapter
OF the same tCivil Code) the transfer OF
real property OF the wiio is regulated in
Section 1908, which provides that no es.
state in real property OF married
woman passes by any grant purporting
to be executed or acknowledged by her,
unless the grant or instrument is ac
knowledged in the manner prescribed by
sections 1856 and ll9l.
In Leonis VS.. Lazzarovich the court
further remarks: at is true that it i,
said by some writers that fraud viii
ates all contracts. even those made by
ia'ants OF temmsS, but we apprehend
that in the case OF married women under
statutes like ours, this doctrine is lin
tied to this, that o contract so infected
cannot be enforced but not that a
fraudulent representation will divest a
.femnis's title in the face OF statute de.
claring different and exclusive mode OF
divesture. But If we hold that O
femme covert cannot be divested of title
by parole or an estopnel in pals directly
operating upon the title, it would be
illogical to hold that such divesture
could be effected by an estoppel created
BY taking possession under back title,
In Maclay VS.. Love 25 Cal. 374, the
court say "The wife has tho power to
creAte q chnrre nnnn her nrnnerIv hnt