statute need not be literally followed, yet every fact required must be stated in the certificate, either by words of equivalent import, or in such a clear, unmistakable manner that the requirements of the statute are substantially complied with. § 43. A private examination. This is the first and leading requirement in all the statutes. The law long looked upon the wife as under the control of the husband, holding him liable for her torts committed in his presence, on the theory of the power or coercion he could exert over her. So it was not expected that, in his presence, and within his hearing, she would be likely to act contrary to his wishes, and therefore it required. her to signify her wish or intention apart from him before the officer taking her acknowledgment. Now first the question arises, what language must be used to certify to this requisite of the statute? It is best, and the safest way at all times, to follow the identical language of the statute, and not to trust to equivalent words; sometimes, where the form is not followed, it has to be determined whether other expressions may be construed as fulfilling this requirement, but where no privy examination is apparent, the certificate is worthless.1 In Meriam v. Harsen, it is said "the object of the private examination of the wife, apart from her husband, is to ascertain whether the execution of the deed was her spontaneous act; or whether she was induced to execute it by coercion, or fear, or ill usage, or other injury from her husband.” Where the certificate of the acknowledgment of a deed by a married woman does not show that she was examined separate and apart from her husband, parol evidence is not admissible to show that she was, in fact, so examined. It need not state that there was a "private examination," if it certify that she was examined separate and apart from her husband. But the averment in the certificate that she was examined privily and apart 1 McCandless v. Engle, 51 Penn. St. 309; Evans v. Commonwealth, 4 Serg. & R. 272; Jourdan v. Jourdan, 9 S. & R. 268; Elliott v. Peirsol, 1 Pet. 328; McCann v. Edwards, 6 B. Mon. 208; Sibley v. Johnson, 1 Mich. 380; Edgerton v. Jones, 10 Minn. 427; Howell v. Ashmore, 2 Zabr. 261; Needles v. Needles, 7 Ohio St. 432; Ewald v. Corbett, 32 Cal. 493. 22 Barb. Ch. 232. Harty v. Ladd, 3 Oreg. 353; S. P. Elliott v. Peirsol, 1 Pet. 328. 4 Thayer v. Torrey, 37 N. J. L. 339. from her husband, is not impeached by proof that the door to the next room, where he was waiting, was not shut.1 Some of the statutes require that the examination be made without the hearing of the husband. This is the form in California. In a case in Indiana, where the certificate stated that the wife had been examined separate and apart from her husband, but did not state that she had been examined "without the hearing of her husband," it was held a fatal defect.2 In Michigan, where the statute required the deed to be acknowledged on "a private examination separate and apart from her husband," and the certificate stated that, "separately and apart from her husband, she acknowledged that she executed the same, freely and without fear or compulsion of any one," it was held it was defective, because it did not state that the acknowledgment was made on a "private examination." The Court say: "It may be admitted that the terms on a private examination' might, perhaps, be held to include the idea of separation from, not only the husband, but all others; but the terms, separate and apart from her husband,' do not embrace this full idea." This construction is unusually strict, and would not be generally followed. It was held, in North Carolina, that the phrases," privy examination," "private examination,” and "examination separate and apart from her husband,” are indifferently used in the acts of assembly.1 In Love v. Taylor, the certificate of acknowledgment of a married woman to a deed relinquishing her dower, which stated that the "said E, being examined separate and apart from her husband, acknowledged," etc., was held sufficient; and the Court declared that it was not absolutely necessary that the words on "private examination" should be inserted in the certificate, but only that it should appear that the acknowledgment was made out of the presence of the husband. This case is contrary to Sibley v. Johnson, Supra, though the language of the statutes was similar; it is, however, preferable as an authority. § 44. The wife must be made acquainted with the contents of the instrument.-This is a requisite in nearly all the 1 Kavanaugh v. Day, 10 R. I. 393. 2 Jordan v. Corey, 2 Ind. 385. 3 Sibley v. Johnson, 1 Mann. 380. 526 Miss. 567. 66 statutes. In some, the contents must be explained to her by the officer, as in California, where the certificate states that she was made acquainted with the contents of the instrument.1 In a few others, it does not seem to be necessary to state this, it being implied. In Delaware, it is required to state that she, being at the same time examined by us, apart from her husband, acknowledged that she executed the said indenture willingly, without compulsion, or threats, or fear of her husband's dis pleasure"; and in New York, that "the said on a private examination by me, separate and apart from her said husband, acknowledged that she had executed the same freely, and without any fear or compulsion of her husband." In California, a certificate stated that she, "after being made acquainted with the contents of said instrument, acknowledged" the same. This was held sufficient, although it did not state that the contents were made known to her by the certifying officer.2 But where the statute requires that the contents should be made known. to her, and the certificate omits to state that fact, it is invalid. Where a statute required that the contents be explained to her, it was held sufficient to certify that she was “acquainted with the contents.' 4 The rule is, that a certificate of acknowledgment of a deed need only substantially comply with the statute, and a certificate was held to be sufficient, although stating that the "contents and meaning of said husband were fully explained and made known to her," instead of using the word "deed" in the place of the word "husband." 5 § 45. The certificate must state a voluntary, free act on the part of the wife, without any fear, coercion, or compul 1 So in Arkansas, Colorado, District of Columbia, Illinois, Kentucky, where it states that "the contents and effects of the instrument were explained to her," Louisiana, Minnesota, Missouri, Nevada, New Jersey, Ohio, l'ennsylvania, Rhode Island, Texas, Virginia, West Virginia. 2 Jansen v. McCahill, 22 Cal. 563; Talbot v. Simpson, 1 Pet. C. C. 188; Shaller v. Brand, 6 Binn. 458. 3 O'Ferrall v. Simplot, 4 Greene, (Iowa) 381 ; Oowen v. Robbins, 19 Ill. 545; Silliman v. Cummins, 13 Ohio, 116; Hairston v. Randolph, 12 Leigh, 445; Pease v. Barbiers, 10 Cal. 436. 4 Thomas v. Meir, 18 Mo. 573. But see contra, Stevens v. Doe, 6 Blackf, 475. 5 Calumet etc. Co. v. Russell, 68 Ill. 426. Where the wife did not understand English, and the officer did not communicate with her in her language, the certificate was invalid. Fisher . Meister, 24 Mich. 447. sion of her husband. If the certificate be correct in every other respect, and omits to state that she willingly, or freely, or voluntarily signed the deed, it is fatally defective.1 It is held that the very words of the statute need not be used, provided it is shown that the act of the wife was free, and not induced by the influence or compulsion of the husband. Thus, where the statute required the officer to certify that on "a private examination, apart from her husband, she executed such conveyance freely and without any fear or compulsion of her husband,” a certificate that, on examination, "separate and apart from her husband," she acknowledged the execution of the same, "without fear or compulsion from him," was sufficient. So where the certificate failed to set forth that the wife "voluntarily " executed the conveyance, this omission was held to be substantially supplied by the expression that "she freely executed the deed without any fear, threats, or compulsion of her husband." 3 In one case, a construction was placed upon the word "voluntary" which appears very liberal. The statute of Ohio, under which the decision was made, required her to declare "that she voluntarily, and of her own free will and accord, without any fear or coercion of her husband, did acknowledge," etc. The certificate stated it as being her "voluntary act and deed,” but omitted that it was "without any fear or coercion of her husband." The Court say: "The term 'voluntary' is defined to be, acting without compulsion, acting by choice, willing of one's own accord. The declaration of the wife, then, on her separate 1 Smith v. Elliott, 39 Tex. 201; Rice v. Peacock, 37 Id. 392; Laird v. Scott, 5 Heisk. 314; Blackburn v. Pennington, 8 B. Mon. 217; Toulmin v. Heidelberg, 32 Miss. 268; Lucas v. Cobb, 1 Dev. & Bat. 328. In a recent case, in West Virginia, Leftwich r. Neal, 7 W. Va. 569, the certificate was invalid because it did not state "that she had willingly executed the same," and omitted words of equivalent import. In this case, the authorities are reviewed. In Bernard v. Elder, 50 Miss. 342, the certificate was as follows: "Also, Rosalie Ladner, wife of Joseph Ladner, who has been examined separately and apart from her husband, has declared that she has signed, sealed, and delivered these presents, without fear, threats, or compulsion of her husband." It was held that this was substantially sufficient, though "private examination," and " as her voluntary act and deed,” and “freely" were omitted as prescribed in the statute. The Court cited previous cases as sustaining its decision: Russ . Wingate, 30 Miss. 446; Smith v. Williams, 38 Miss. 48. See, also, Heinrich v. Simpson, 66 Ill. 57; Ridgeway e. Underwood, 67 Ill. 410. 2 Dennis v. Tarpenny, 20 Barb. 371. 3 Battin v. Bigelow, 1 Pet. C. C. 452. examination, excludes the idea of fear or force. If she executed the instrument willingly, of choice, and of her own accord, as her admission before the justice imports, she could not have been under the influence of fear, much less of coercion."1 In Tubbs v. Gatewood,2 a recent case in Arkansas, the certificate stated that she declared she signed, executed, etc., “without compulsion or influence of her husband," but the statute required her to declare that "she had of her own free will" executed the instrument," without compulsion or undue influence of her husband." It was held that the use of the latter words sufficiently indicated that it was "freely " done. The strictest rule that has been laid down in respect to this requisite is held in Alabama. The statute required that she should acknowledge "that she signed, sealed, and delivered the same, as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband"; and the certificate was "that she signed, sealed, and delivered the above instrument on her own free will and accord, and without any force, persuasion, or threats from her said husband." It will be seen that the certificate omits to state that she did it without the fear of her husband; and the Court say: "Fear may exist on the part of the wife, without any force, persuasion, or threats' from her husband. Her acknowledgment, that she executed the deed of her own free will and accord, is not identical in substance without an acknowledgment that she executed it freely, without any fear of her husband. Fear may exist, and often does exist, in a degree so moderate as not to destroy the freedom' of the will. But it may exist in a much more moderate degree, and fall far short of undue influence, or moral coercion."3 6 * * * * ** § 46. That she does not wish to retract her act, or that she desires the instrument to be recorded, is a requisite to be found in some certificates. This is required in California, where the certificate must state "that she does not wish to retract the execution of the same." 4 The same is required in the District 1 Brown v. Farran, 3 Ohio, 140; S. P. Dundas v. Hitchcock, 12 How. U. S. 256. 226 Ark. 128. 8 Boykin v. Rain, 28 Ala. 332. Under the present law of that State there is no privy examination required. 4 Civil Code, Sec. 1191. |