From Weekly Notes of Cases Argued and Determined in the Supreme Court of Pennsylvania, the County Courts of Philadelphia, and the United States District and Circuit Courts for the Eastern District of Pennsylvania by Members of the Bar, Volume XXXV, September, 1894, to February, 1895. Philadelphia: Kay & Brother, 1895.
Transcribed for this site by Lyn Magill-Hoch. We are grateful for her assistance.
Page 449
Friday, Jan. 18 1895 [19. -- Supreme Court
Oct., '94, 99. October 2, 1894.
Spencer v. Reese et ux.
Married woman -- Defective acknowledgment of deed -- Act of May 25, 1878, P. L. 149 – Certificate -- Evidence.
To render the acknowledgment of a deed by a married woman sufficient, she must have been separately examined by the officer taking the acknowledgment, must have full knowledge of the contents of the deed and voluntarily consent to the execution of it, and these facts must appear by the certificate of the officer.
Where an acknowledgment has been in fact made as required by law, but the certificate thereof is detective, the certificate may be cured by proceedings under the Act of May 25, 1878, P. L,. 149, but where the acknowledgment itself is defective no life can be given to it by subsequent proceedings.
A certificate is evidence only of what it contains and gives rise to no presumption that any thing else took place before the officer.
When upon proceedings under the Act of 1878, the plaintiff testifies that the acknowledgment was made in due form of law, and the defendants, the married woman whose acknowledgment it is sought to establish and her husband, deny the same, a decree for reformation is properly refused.
Appeal of George W. Spencer, plaintiff, from the decree of the Common Pleas of Clarion County, dismissing his bill against Isaiah Reese and M. C. Reese, his wife, praying for a reformation of the certificate of acknowledgment of a mortgage executed by the defendants.
The bill in this case set up that on February 15, 1886, the defendants, Isaiah Reese and M. C. Reese, his wife, executed and delivered to the plaintiff a mortgage upon the separate property of the wife to secure a loan; that the certificate of acknowledgment appended to the mortgage was as follows:
"State of Pennsylvania, County of Clarion, SS: Be it remembered, that on the 15th day of February, A. D., 1886, before me, a Justice of the Peace, in and for said county, came the above-named Isaiah Reese and M. C. Reese, his wife, and acknowledged the foregoing indenture of mortgage to be their act and deed, and desired that the same might be recorded as such. She, the said M. C Reese, being examined separate and apart from her said husband, declared that she signed the indenture without any coercion or compulsion from her said husband. Witness my hand and seal, the day and year aforesaid. [Seal.] R. LAUGHLIN, J. P."
That said acknowledgment was defective in not setting out that the full contents of the deed had been made known by the Justice to M. C. Reese; that the mortgage was, in fact, really and properly acknowledged, in due form of law, by the said defendants, but the said Justice, through inadvertence or otherwise, neglected or omitted to so certify the same.
The bill prayed a decree reforming said certificate of acknowledgment in accordance with the actual facts.
The answer denied that mortgage had been in fact properly acknowledged. The case was referred to a master and examiner, Francis R. Hindman, Esq., before whom the plaintiff testified that Mr. and Mrs. Reese both signed the mortgage and then Laughlin, the Justice, picked it up and started with her into the back room. Isaiah Reese testified that the mortgage was not read or explained to his wife; that he was with her all the time they were in Callensburg and that the Justice did not explain to her the mortgage or the effect of it; that he did not take her separate and apart into any room at any time while they were there. Mrs. M. C. Reese testified that she signed a paper while at Laughlin's office; that it was not read to her; that the contents of it were not made known to her and that she was not examined apart from her husband.
Mrs. Mary E. Spencer, wife of plaintiff, testified that on the morning of the day the mortgage was signed and the loan made, defendants came to her husband's office ; that Mrs. Reese did all the talking, beginning by saying, "Doctor, I came down to see about this money and fix the mortgage;" that the Doctor said, "I'm afraid you won't be any better prepared to pay at the end of a year than now;" to which Mrs. Reese replied that she wouldn't let a mortgage rest over her home for a year, she would sell a horse and pay it. Mrs. C. M. Hutchinson testified : "Several years ago, a cold, wet day in winter, Mrs. M. C. Reese came into our house and commenced talking about her business, saying that her husband was a very good worker, but not a good manager and she had to do so many things……. She said she had come down to borrow and get one hundred dollars from Dr. Spencer……. She went over to 'Squire Laughlin's office just across the street from our place and came back again…….After she came back she said she had got the money."
It appeared that the Justice was a member of the bar.
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On this testimony the master found that a proper acknowledgment had been made, and reported a decree in favor of plaintiff. Exceptions were filed, which after argument were sustained by the Court, CLARK, P. J., and a decree was made dismissing the bill at the costs of the plaintiff.
The plaintiff took this appeal. John W. Reed, (Harry R. Wilson with him), for appellant.
W. A. Hindman, (M. A. K. Weidner with him), for appellee.
January 7, 1895. FELL, J. This is a proceeding under the Act of 25th of May, 1878, to reform a defective certificate of the acknowledgment of a mortgage by a married woman. The defect in the certificate which it is sought to remedy is that it does not appear that upon her separate examination by the magistrate he read or otherwise made known to her the full contents of the mortgage and that she thereupon declared that she did voluntarily and of her own free will and accord sign and seal and as her act and deed deliver the same. It is alleged in the bill that the mortgage was in fact properly acknowledged in due form of law, and that the magistrate through inadvertence or otherwise neglected or omitted so to certify the same. The answer denies that the acknowledgment was otherwise than as shown by the certificate or that there was any omission through inadvertence or neglect. Section I of the Act of 1878 confers upon the Common Pleas the power when it is satisfactorily shown that "a certificate of acknowledgment defective in form was in fact really and properly acknowledged in due form of law" to make a decree for the reforming of such certificate in accordance with the actual facts. And section 2 provides that the proceeding "shall be by bill in equity as in other cases for the reformation of a written instrument."
The first inquiry is, what is essential to constitute the valid acknowledgment by a married woman of a conveyance or mortgage of her real estate? In this State her right to convey or charge her real estate is derived solely from the Act of February 24, 1770. Having no power to contract or convey except by virtue of this statute, it has been uniformly held that its requirements must be strictly complied with and that this must appear in the certificate of the officer taking her acknowledgment: Watson v. Bailey, I Binney, 470; Evans v. Commonwealth, 4 S. & R. 272; Thompson v. Morrow, 5 S. & R. 289; Watson v. Mercer, 6 S. & R. 49; Jourdan v. Jourdan, 9 S. & R. 268; Barnet v. Barnet, 15 S. & R. 71; Trimmer v. Heagy, 16 Pa. 484; Glidden v. Strupler, 52 Pa. 400; Graham v. Long, 65 Pa. 383. In Trimmer v. Heagy, supra, it was said: "The only legitimate evidence of consent is the execution of the deed in the manner and form pointed out by the Act." In Glidden v. Struppler. "The policy of the Act which denies the capacity to do the act as clearly denies the capacity to confirm it except in the legal mode." And in Barnett v. Barnett: quot;It does not appear by the certificate of this acknowledgment that the contents of the deed were made known to the wife by the Justice who took her acknowledgment, or that she did in fact know them. It has been expressly decided by this Court that this is an incurable defect."
This rule has been announced in an unbroken line of decisions and has not been affected by the rulings in Miller v. Wentworth, 82 Pa. 280; Hornbeck v. Mutual Building and Loan Association, 88 Pa. 64, or the other cases in which it has been held that a certificate of acknowledgment is good which shows a substantial compliance with the statute.
Where acknowledgments not in the language of the Act have been held good the certificates have shown that what was done was equivalent to what was in terms required, that the compliance was substantial, and that the essentials of a valid acknowledgment—the separate examination of the wife, her full knowledge of the contents of the instrument, and her voluntary consent to the execution of it -- in fact existed. The rule first stated in Watson v. Bailey, supra, that parol evidence is not admissible to supply defects in a certificate of acknowledgment except in cases of fraud or duress has been rigidly adhered to. If what is certified fails to show a substantial compliance, the defect is incurable. The Act of 1878 does not change the law, but provides only for reforming the certificate so that it shall conform to the facts. It furnishes a remedy where the acknowledgment was made in due form of law and the certificate is defective in not stating what did actually occur. It cures a defective certificate, but can give no life to defective acknowledgment.
The question of the sufficiency of the testimony, as to which the master and the Court differed, was, we think, properly decided. The proceeding was in equity and the well-recognized rules of evidence in relation to the reformation of written instruments apply. The answer was responsive to the bill. The certificate was evidence only of what it contained, and no presumption arose that anything took place before the magistrate except that to which he certified. As was said by McCollum, J., in Hand v. Weidner, 151 Pa. 362, "The certificate of acknowledgment is in the absence of fraud or duress conclusive of the facts therein stated, but it does not tend to establish the existence of other facts."
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There were no corroborating circumstances which threw light on the material facts in issue. They were to be determined directly from the testimony. Of the four persons who were present when the acknowledgment was taken, one, the plaintiff, testified to the facts which would establish its validity. Two, the defendant and her husband, squarely and directly contradicted him. The fourth, the magistrate, was dead. The learned Judge of the Common Pleas was clearly right in holding that the testimony was insufficient.
The decree is affirmed at the costs of the appellant.
H. B.
