Hedger v. Ward , 54 Ky. 106 ( 1854 )

Judge Simpson

delivered the opinion of the Court—

The questions that first present themselves for our determination in these cases, arise upon the evidences of title introduced and relied upon, on the trial, by the plaintiff in the court below.

The deed from Speed to B. Beall, dated in August, 1803, having been proved before the clerk of the Mercer County Court, by the subscribing witnesses thereto, and recorded, on his certificate of that fact, in the County Court of Bracken, where the land was situated, was not duly authenticated, as a recorded instrument. A clerk of a County Court, prior to the passage of the act of 1810, to amend the acts regulating conveyances, had no power to take the acknowledgment or proof of the execution of a deed for land that did not lie in his county. But although the deed was not admissible in evidence as a recorded instrument, yet as the original, and not merely a copy from the record was produced, and it was of ancient date, being almost fifty years old, and brought forward and relied upon by one of the heirs of the grantee, it was properly allowed to be read in evidence, without any proof of its execution.

3. A deed by ■which no title passed, may be read on the part of a defendant to show the extent of Us possession, and the particular boundary. 4. The act of the Legislature authorizing con-v eyanc es by com missioners appointed by the ■'County Court, does not authorize a conveyance, on the part of the heirs of a husband, of land the inheritance of the wife; and by such conveyance no title passes to the grantee.

We do not deem it necessary to decide whether the deed to the plaintiff, executed by the commissioners under the act of the Legislature passed in 1817, vested the title to the land in her, or was efficacious for any purpose. Be this as it may, it was competent evidence not only to show the extent of the boundary claimed by her, but also to prove the important fact, that the purchasers from her husband acquired and held the possession of the land in controversy under her title. The deed from her husband, as well as the bond he executed, under which the defendants claimed, referred to this commissioners’ deed, as the foundation of his title, and proved conclusively that the land he sold belonged to his wife. The purchasers from the husband, having entered under the title of the wife, cannot deny her title, and consequently it was immaterial whether the commissioners’ deed was valid or not.

But it is contended that the plaintiff was precluded, by the proceedings had in the County Court*after the death of her husband, from asserting any right to so much of the land in dispute as was included in the bond he executed in his lifetime, and for which a deed of conveyance was made by the County Court Commissioners. If those proceedings were in all respects regular — and whether they were or not we do not deem it necessary to depide — still, nothing passed by the commissioners’ deed, as the obligor in the bond had no title which could descend to his heirs. The acts which authorize County Court Commissioners to convey lands, merely provide for the conveyance of the title which has descendedlo the heirs of a deceased vendor by executory contract. The plaintiff does not claim the land under her husband, nor had he any title which descended to his heirs, and consequently the commissioners’ deed was wholly inoperative, and passed no title to the grantees. The plaintiff’s right to this part of the land sued for was fully established, and a judgment for it was correctly rendered in her favor.

5. Where the wife signed a deed purporting to convey on the part of her husband land which was the inheritance of the wife, and acknowledged the deed and relinquished dower in the land— held, that such deed was ineffectual to pass the inheritance of the wife, as the deed contained no language indicating any intention to convey her right of inheritance. 6. The act of 1840 limiting actions by widows or their heirs for lands conveyed by husband and wife, applies only to such conveyances as were defective from want of proper form in the certificate of acknowledgment.

tier right to the residue of the land depends upon the question whether the deed executed by her husband in July, 1826, to Christian Spees, can be regarded as having been executed by her jointly with her husband, for the conveyance of her title to the land. For if it shall be so regarded, then as the cause of action had accrued, more than three years before the commencement of this suit, the limitation provided by the act of 1840, (3 Stat. Laws, 413,) applies, and barred her right of recovery.

Her name is not contained in the body of the deed as one of the grantors, but she signed and sealed it, in conjunction with her husband, and relinquished her right of dower in the land before two justices of the peace. The husband is the sole grantor in the deed; it purports to be a sale -and conveyance of his land, and not the land of hi3 wife, and does not contain any language indicating an intention that she was to convey" her right of inheritance to the land. Indeed, it may be inferred, from the manner in which the deed was drawn, executed, and certified, that a relinquishment of dower on the part of the wife, was all that was intended to be done by her.

The act of 1840 only applies to such deeds as the wife has executed jointly with her husband, for the conveyance of her right of inheritance to the land subsequently sued for by her or her heirs. The object of the Legislature in the passage of the act, was to place a limitation upon such suits, where it appeared that the deed executed by the wife would have been effectual to pass her title to the land, if the officer before whom it was acknowledged by her, had certified in proper form, and not merely that she had relinquished her right of dower.

Would the deed in question have been sufficient to convey the wife’s right of inheritance to the land, even if it had been acknowledged by her for that purpose, and certified in due form by the proper officer? By the act of 1796, to reduce into one the several acts for regulating conveyances, (1 vol. Stat. Law, page 440,) it was enacted, that “when husband and wife shall have sealed and delivered a writing purporting to be a conveyance of any estate or interest,' if she appear in court, and being examined privily and apart from her husband by one of the justices thereof, shall declare to him, that she did freely and willingly seal and deliver the said writing, to be then shown and explained to her,” &c. “it shall not only be sufficient to convey or release any right of dower thereby intended to be conveyed or released, but be as effectual for every other purpose as if she were an unmarried woman.”

From an examination of this provision, as well as of all the other statutes regulating conveyances, it is evident, that to enable the wife to convey her title to land, she-must join with her husband in a deed containing apt words of grant, and purporting to be a conveyance by her, as well as by her husband. The instrument of writing must “be shown and explained to her,” so that she may fully understand the effect of its execution. This requisition of the law demonstrates conclusively that she is to be one of the grantors in the deed, and that its language must import a sale and conveyance by her. This deed then would not, in its present form, have conveyed to the grantee the wife’s right of inheritance in the land, even if it appeared that it had been executed for that purpose. But the manner of its execution, as well as the certificate of the justices of the peace, indicate that no such intention existed, and that a relinquishment of dower merely was contemplated by the parties.

The instruction therefore, of the court below, that the plaintiff could not recover the land embraced by this deed, unless she commenced her action within three years after her light of action therefor accrued, was erroneous.

Wherefore, the judgment appealed from by the plaintiff in the court below is reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.

The judgment appealed from by the defendants, Hobbs and others, is affirmed.