Lessee of M'Intire v. Ward , 5 Binn. 296 ( 1812 )

Tilghman C. J.

This case depends upon the acknowledgment of a deed made by the lessor of the plaintiff Isabella M'Intire, and her former husband William Neill, on the 17th of February 1779, whereby the lands claimed in the ejectment were conveyed to Samuel Todd in fee. The deed was-executed in Baltimore county in the state of Maryland, where Neill and his wife then resided, and acknowledged before James Calhoun and Peter Shepherd, two of the justices of the peace for the said county of Baltimore. At that time, the town of Baltimore was not incorporated, and the only magistrates of the county were justices of the peace, who were all of equal dignity, and were judges of the County Court. A certificate was produced from William Gibson, clerk of the County Court, under the seal of the Court, declaring that Calhoun and Shepherd were justices of the peace, and that there were no magistrates superior to them in the county of Baltimore. Two objections are made to the acknowledgment of this deed. 1st. That the justices of the peace had no Power t0 ta^e ^ under the act of assembly of the 24th of February 1770. 2d. That if they had power, it is not taken in the manner prescribed in the act.

1. The third section of the act permits deeds made by husband and wife, not residing within the province, to be acknowledged before “ any mayor or chief magistrate, or “ officer of the cities, towns, or places, where such deeds or “ conveyances are or shall be made or executed,” and directs that “ such acknowledgment shall be certified under the “ common or public seal of such cities, towns, or places.” The law had in view cities and towns, in which there was a mayor or chief magistrate, and places, not cities or towns, in which there were civil officers concerned in the administration of justice. Such a place I take a county to be, which although not strictly a body corporate, is something in the nature of one, being bounded by certain limits, within which the justices of the peace have jurisdiction. It was the intention of the law to facilitate conveyances of land by persons living out of the then province. There was at that time but one city (Annapolis) in the adjoining province of Maryland, and I believe not more than two in New York; and it cannot be supposed that our legislature intended to subject all persons executing conveyances, to the trouble of going to a city to make their acknowledgments. Indeed unless we understand the word places in the manner I have mentioned, I know not what meaning to affix to it. But a difficulty still remains. This acknowledgment was not made before the chief magistrate or chief officer, for I agree that the word chief is to be applied to officers as well as magistrates. If there had been a chief magistrate, or officer in Baltimore county, and this deed had not been acknowledged before him, the objection would have been fatal. But where several are equal, there can be no chief. In such case a literal compliance with the law is impossible, but its meaning is Satisfied, when the person who takes the acknowledgment has no superior. It has been also objected that the acknowledgment is not certified under the public seal as the law directs. It is true the justices do not say that they have caused the seal of the County Court to be affixed, because this was out of their power. The seal is not intrusted to their custody, but to that of the clerk. The. certificate of the justice is however accompanied with the public seal, which is affix-' ed in the only manner the nature of the case admits, and carries with it all that credit which the seal can confer. It appears to me therefore that there is no weight in this objection.

2. The second point respects the form of the certificate of acknowledgment. The act' directs (sect. 2,) that the person taking the acknowledgment, “ shall read to the wife, or other- “ wise make known to her the full contents of the deed,” and this, it is said has been omitted, or at least does not appear to have been done. In support of this objection is cited the case of Watson and wife v. Bailey, 1 Binn. 470. I gave no opinion on that case, because I had decided it in the Circuit Court, where my opinion was agreeable to that of the Supreme Court. It was a case very unlike the present; for it did not appear by the certificate of acknowledgment, that the wife declared that she had executed the deed voluntarily. It was only said that she acknowledged the deed, and was examined separate and apart from the husband. This was a defect too glaring to be got over. I do not think it necessary to decide at present, whether it should appear on the face of the certificate, that the contents of the deed were made known to the wife; and I desire it to be understood, that I do not consider that point as having been determined in Watson v. Bailey. But supposing it to be so, it is enough if it in any manner appears. No particular form is necessary. The words of the act need not be used, if its directions are substantially complied with. This Court would be departing from the line of its duty, if it were studious to avoid conveyances, by objections founded merely upon form. Now it is certified in this case, that the wife “ acknowledged the “ indenture of bargain and sale to be her act and deed, according to its true intent and meaning, and the land and “ premises therein mentioned to be bargained and sold, with “ all and every the appurtenances, to be the right, title, in- “ terest, estate and property, of the within named Samuel “ Todd his heirs and assigns for ever.” She knew then that the land was conveyed to Todd in fee simple, which is the essential part of the deed, and it may be fairly presumed that this was communicated to her by the justices who took her acknowledgment, although I do not conceive that to be material, provided it appears that she had the knowledge. But it is said that it does not appear she knew what the lands were which were included in the deed. This is a severity of criticism, which I confess seemed to me to be unnecessary. When the justices certify that she acknowledged the lands within mentioned to be the right &c. of the grantee, it may be reasonably presumed that the lands were particularly mentioned at the time of taking the acknowledgment, although they are not particularly mentioned in the certificate. Considering the whole of this certificate then, it sufficiently appears, that the contents of the deed were known to her. I am therefore of opinion, that the Circuit Court was right in permitting the deed to be read in evidence, and that the judgment should be affirmed.

Yeates J. gave no opinion, having already decided in favour of the acknowledgment below.

Brackenridge J.

When this point came before me at a Circuit Court in Bedford county, I did not consider myself at full liberty to say what the construction ought originally to have been, because I had a knowledge of what had been done in taking acknowledgments, that the words of the act had not in all cases been strictly pursued, or at least set forth in the certificate of those who took acknowledgments, so that estates might be shaken, some deviation appearing, or even some substantial defect in the recital. And in fact it did not appear to me, but that it might be sufficient to set forth that the acknowledgment had been taken; it being presumable that all things had been done according to the requisite of the acts, and that in this case the omnia rite et solemniter acta might be presumed. But in the case of Watson v. Bailey, it being decided that the words of the act of assembly must be substantially set forth, as having been pursued in the examination of the justice or other person taking the acknowledgment, I do not think myself at liberty now to depart from it; and I am not able to say that the not having certified that the contents were made known, is not a substantial defect in this acknowledgment which we have before us. The examining apart and inquiring as to the being free and' voluntary in the act, was with a view to save against compulsion, the making known the contents is equally necessary to preserve from imposition by the subscription of a different writing.

Much less am I able to say, taking up this case upon original grounds, as we are at liberty to do, it being a point primæ impressionis, that the acknowledgment has been before those authorised to take it, or that it has been certified in the form and under the solemnities by law required. I construe the law, chief officer of the place; the mayor, chief magistrate, or chief officer of the place. There is an elipsis in the language, and after or, chief must be supplied. It will then read, mayor, chief magistrate or chief officer. For there is the same reason that chief be applied to officer, as to magistrate, or more; for it will avoid the taking by a very subordinate officer in some judicial station. Nor do I think the word can be applied but to some place of which there is a common seal, and an officer entrusted with it, in whose custody it is, or who has a right to use it. It behoves the party to come into the state to have the deed executed, or to have the deed executed where there is such an officer, with the custody and the right to use such a public or common seal. The act has no reference to a certificate under seal, that such a person taking an acknowledgment was an officer or chief officer. It must carry its own evidence with it, that he was a chief officer, by having the custody of it, and the right to use it. On these grounds I am of opinion, that the judgment of the Circuit Court be reversed.

Judgment affirmed.