{ "id": 1877106, "name": "Little, Trustee, vs. Dodge, Guardian, etc.", "name_abbreviation": "Little v. Dodge", "decision_date": "1877-11", "docket_number": "", "first_page": "453", "last_page": "462", "citations": [ { "type": "official", "cite": "32 Ark. 453" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "15 Ark., 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728184 ], "opinion_index": 0, "case_paths": [ "/ark/15/0246-01" ] }, { "cite": "26 Ark., 130", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "20 Ark., 194", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "29 Ark., 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882921 ], "opinion_index": 0, "case_paths": [ "/ark/29/0346-01" ] }, { "cite": "15 Ark., 479", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 695, "char_count": 16513, "ocr_confidence": 0.421, "pagerank": { "raw": 2.931683362967546e-07, "percentile": 0.8473955431378432 }, "sha256": "c7a76d539c6d8b95140f0e16bec9692c4b45a1fa30c3e9131ff313b12a32d891", "simhash": "1:bafc8bce251b284f", "word_count": 2835 }, "last_updated": "2023-07-14T20:20:33.733477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Little, Trustee, vs. Dodge, Guardian, etc." ], "opinions": [ { "text": "English, Ch. J.:\nOn the 10th of December, 1872, Robert L. Steele, of Rockingham, North Carolina, acting by an agent, loaned to John W.. Moore, of Little Rock, $2200, for one year, at 20 per cent, interest. The interest for the year, amounting to $440, was added to the principal, and Moore and his wife, Sarah A., made a joint note for $2640, payable at twelve months, bearing\" interest at 20 per cent, after maturity. To secure the payment of the note, the wife attempted to join the husband in executing a mortgage to, Robert A. Little, as trustee of Robert L. Steele, upon lot seven,, in block two, E. Q. P. Little Rock, which she inherited from her father, John Robins. The execution of the mortgage was, acknowledged before a notary public, who was, no doubt, ignorant of the law and forms of conveyancing, and who made a very defective certificate of the wife\u2019s acknowledgment, and perhaps failed to authenticate it with his official seal. Afterwards Mrs. Moore died, leaving an infant son, John Slocum, by a former husband, who inherited from her the mortgaged lot. The bill in this case was brought in the Pulaski Chancery Court, against her surviving husband, alleged to be a tenant by the courtesy, and John Slocum, to foreclose the mortgage.\nCreditors of John W. Moore were also made defendants, but they set up no claim upon the premises.\nAn answer was filed for John Slocum, by Moore, as his guardian, putting in issue tlie allegations of the bill.\nDuring the pendency of the suit in the court below, Moore died, the relief prayed as to him was abandoned, and George E. Dodge, who succeeded him in the guardianship of John Slocum, was made defendant.\nOn the hearing, the Chancellor hold that the mortgage was not executed by Mrs. Moore in accordance with the statute, and hence was as to her and her heir invalid, and dismissed the bill for want of equity.\nPlaintiff appealed.\nIt appears that a former suit had been brought to foreclose the mortgage, and that the papers in the case, including the original mortgage were misplaced or destroyed during the Brooks-Baxter war, some of the soldiers of Brooks having occupied the office of the Chancery Clerk.\nA recorder\u2019s copy of the mortgage was made an exhibit to the bill in this suit. The mortgage is in good form. The notarial certificate of acknowledgment is as follows:\n\u201c State of Arkansas, County of Pulaski:\n\u201cOn this, the 10th day of December, 1872, personally appeared before me, a duly commissioned and acting notary public The said J. W. Moore and his wife, S. A. Moore, grantors in the foregoing deed of conveyance, to me well- known as the parties to said deed, and acknowledged that they had signed and sealed the same as their act and deed, and the said S. A. Moore, and being duly by me privily examined separate and apart from her husband, she says she signed said deed freely, and of her own consent, and not by pursuasion or compulsion of her said husband.\n\u201c Given under my hand and the seal office this 10 day of December, 1872. A. A. Stoddard,\nNotary Public.\u201d\nThere is nothing in the recorder\u2019s copy to represent a notarial seal, the usual L. s. and scroll [l. s.] being omitted.\nJohn Stoddard was called as a witness by appellant, and permitted by the court, against the objections of appellee, to testify as follows':\n\u201c I was a duly commissioned and acting notary public on the 10th of December, 1872. I. had a seal of office at that time. It was my custom to affix said seal to all instruments of this kind.\u201d (Examining the recorder\u2019s copy of the mortgage made an exhibit to the bill.) \u201c To the best of my knowledge and belief, I affixed my seal to this instrument.\u201d\nOn cross-examination he further deposed: \u201c I have no guide to refresh my memory except the certificate I sec to this copy. I know it was my custom to affix the seal to all instruments of this character. I have no personal recollection of the matter, but merely suppose I affixed the seal thereto, because I had a seal at that time, and it wras my custom to do so.\u201d\nOn re-examination by appellant; \u201c I occupied the position of book-keeper at Stoddard\u2019s Bank, at that time. I had more business of this kind than any notary in the city. I kept my seal at the bank. I do not think there is any probability of my having omitted the seal to this instrument.\u201d\nThe depositions of the attorneys of appellant, who brought the first suit, and who had been in possession of the original mortgage, were taken and read, as to its loss, etc., but they did not state whether the certificate of acknowledgment was authenticated by the notarial seal, or not. Stoddard was the only witness who was examined as to this matter, and the Chancellor seems to have regarded his statement as insufficient to prove that the certificate of acknowledgment to the original mortgage was authenticated by the seal of the notary.\nBy the common law, a married woman could convey her real estate by a fine or common recovery. She could not convey by deed.\nIn England, and in most of the States of this Union, provision has been made, by statute, for the wife to convey her estate, by deed, with the consent of her husband, and the private examination of a magistrate.\nBy our Statute:\n\u201c A married woman may convey her real estate, or any part thereof, by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed.\u201d Gantt\u2019s Dig., sec. 838.\nShe \u201c may relinquish her dower in any of the real estate of her husband, by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed.\u201d Ib., sec. 839.\n\u201c The conveyance, of any real estate, by any married woman, or the relinquishment of dower in any of her husband\u2019s real estate, shall be authenticated and the title passed, by suc.h married woman voluntarily appearing before the proper court or officer, and, in the absence of her husband, declaring that she had,.of her own free will, executed the deed or instrument in question, or that she had signed the relinquishment of dower, for the purposes therein contained and set forth, without compulsion or undue influence of her husband.\u201d Ib., sec. 849.\nThe acknowledgment of deeds, etc., within the State, may be taken before the Supreme Court, the Circuit Court, or either of the Judges thereof, or the clerk of any court of record, or before any justice of the. peace, or a notary public. Ib., secs. 841, 849. . .\n\u201c Every court or officer that shall take the proof or acknowledgment of any deed or conveyance of real estate, or the relinquishment of dower of any married woman in any conveyance of real estate of her husband, shall grant a certificate thereof, and cause such certificate to be endorsed on said deed, instrument, conveyance, or relinquishment of dower, which certificate shall be signed by the clerk of the court when probate is taken in court, or by the officer before whom the same is taken and sealed, if he had a seal of office.\u201d Ib., 844.\nInasmuch as a married woman could not, by the common law, convey her estate by deed, and can only do so by virtue of the statute, any substantial deviation from the form thereby prescribed, will render the deed invalid. McDaniel v. Grace et al., 15 Ark., 479; Stillwell and wife v. Adams et al., ex\u2019rs., 29 Ark., 346; Wood and wife v. Terry et al., 30 Ib., 391.\nA substantial compliance with what the statute requires to be done, ought affirmatively to appear from the certificate. A literal compliance with the statute is not required \u2014 the words of the statute need not be used \u2014 words of similar import may be employed, but the courts cannot dispense with a substantial compliance with the statute. They cannot supply, by intendment, important \"words omitted in the certificate. Jacoway v. Gault, adm\u2019r, 20 Ark., 194.\nThe certificate of the notary was not good as to the husband\u2019s acknowledgment in this case. The statute requires the grantor, (other than a married woman,) to state \u201c that he had executed the same (the deed) for the considerations and purposes therein mentioned and set forth.\u201d Gantt\u2019s Dig., sec. 846.\nThe notary puts the husband and the wife together in the commencement of the certificate, and says that they \u201c acknowledged that they had signed and sealed the same (the deed) as their act and deed,\u201d and then he drops the husband and takes up the wife. As to the husband, the words, \u201c for the consideration and purposes therein mentioned and set forth,\u201d are \"wholly wanting, and such an omission was held to be fatal, for the purposes of registration, in Jacoway v. Gault, adm\u2019r.\nIn this case the certificate of the notary, as to the wife\u2019s acknowledgment, omits the words of the statute, \u201c for the purposes therein contained and set forth,\u201d and no words of similar import are used.\nThe wife is not required to declare that she had executed the instrument for any consideration, for that may go to the husband, but she must declare that she executed it for the \u201c purposes therein contained and set forth,\u201d in the language of the statute, or in words of similar import, for she thereby indicates that she is acquainted with, or understands the nature of the conveyance; whether it be an absolute deed, a mortgage, or a lease, etc. It is' important that she should know the purposes and contents of the instrument which she is asked to execute, and the certificate of the officer taking the acknowledgment, should by words substantially equivalent to the language of the statute, show that fact.* It is safer and better to follow the language of the statute, and to use approved forms. The guards which the law-makers have placed around the wife, to protect her against imposition in the disposition of her estate, are not to be disregarded or displaced by the courts, but to be maintained, and the spirit and intention of the statute enforced.\nWhen the wife conveys her real estate, she must declare that she had \u201c executed \u201d the deed, etc.\nWhen she relinquishes dower in her husband\u2019s lands, she must declare that she \u201c had signed \u201d the relinquishment of dower, etc.\nIn the original statute she was required to declare that she had \u201csigned and sealed\u201d the relinquishment of dower, etc. Gould\u2019s Digest, sec. 21, ch. 37. But in the present Digest, Mr. Gantt left out the words \u201cand sealed,\u201d because by a clause in the Constitution of 1868, private seals were abolished.\nIn this case the wife attempted to convey her real estate, and, ip the certificate of her separate acknowledgment, the notary omits the w\u00f3rds \u201cexecuted the deed\u201d and substitutes therefor the words \u201csigned said deed,\u201d etc.\nIn Jacoway v. Gault, adm\u2019r, it was Held that the words \u201csigned, sealed and delivered,\u201d employed in the certificate were equivalent to the word \u201cexecuted,\u201d used in the statute.\nIn Tubbs et al. v. Gatewood et al., 26 Ark., 130, the validity of a wife\u2019s deed for her land was questioned. In the certificate of her acknowledgment the words \u201csigned and sealed\u201d were used in the place of the word \u201cexecuted.\u201d Mr. Justice Harrison, who delivered the opinion of the court, said: \u201cThough signing and\nsealing, without delivery, is not a complete execution of an instrument, the phrase \u2018signed and sealed\u2019 in the certificate, was obviously used agreeably to the common understanding and acceptation of its meaning as an equivalent expression for \u2018signed, sealed and delivered-,\u2019 or \u2018executed.\u2019 \u201d\nThe statute requires the wife to declare that \u201cshe had, of! her \u25a0own free will\u2019executed the deed, etc., without compulsion or undue influence of her husband.\u201d\nThe notarial certificate uses this language: \u201cShe says she signed said deed freely and of her own consent, and not by persuasion or compulsion of her said husband.\u201d\nThe words \u201cundue influence\u201d are omitted, and others substituted of less force and appropriateness, but, while we arc not disposed to encourage, but to disapprobate, departures from the words of the statute, we cannot affirm that the words used by the notary are not a substantial compliance with the statute, they indicate a voluntary execution of the deed by the wife.\nMr. Gould appended to his Digest, as directed by the revision Act of 14th January, 1857, forms to be used by justices of the peace under the statutes. His work was examined and approved by George C. Watkins. Both of them were good lawyers, and experienced conveyancers.\nThe form of acknowledgment by husband and wife of a joint deed, for the wife\u2019s land, furnished by Mr. Gould for the use of justices of the peace is as follows:\n\u201cState of Arkansas, County of-:\n\u2018\u2022\u2022'On this-day of-, in the year of our Lord one thousand eight hundred and-, before me--, an acting and duly commissioned justice of the peace within and for the county of ----, in the State of Arkansas, appeared in person------, to me well known as the person whose name appears upon the within and foregoing deed of conveyance, as one of the parties grantor, -and stated that he had executed the same for the consideration and purposes therein mentioned and sot forth, and I do hereby so certify.\n\u201cAnd I further certify, That, on this day, voluntarily appeared before me------, wife of said------, to me well known to be the person whose name appears upon the within and foregoing deed, and, in the absence of her said husband, declared that she had of her own free will executed the same for the purposes therein contained and set forth, without compulsion or undue influence of her said husband.\n\u201cIn testimony whereof, I have hereunto set my hand as such justice of the peace, at the county of--on the- dav of --, 18--. J. R \u201d\nThis form complies with the requirements of the statute, ana is unquestionably good, and, with but little modification, maybe used by a notary public or other officer authorized to take acknowledgments.\nWhere the acknowledgment is taken by a notary public or other officer having a seal, it should be authenticated by his official seal. Blagg v. Hunter, 15 Ark., 246; Gantt\u2019s Digest, sec. 4302, 877.\nThe Chancellor was not convinced from the evidence before him that the notary attached his official seal to his certificate of acknoAvledgment upon the original mortgage.\nHad either of the attorneys in Avhose hands the original mortgage Avas placed for foreclosure, and who filed it as an exhibit in the first suit, and must have examined it when they drafted the bill, deposed that the notarial seal was attached to the certificate, this might have been satisfactory to the Chancellor, but neither of them so deposed. The notary founded his belief upon his habit of using his seal, and not upon any recollection of Avhat he did in this particular case.\nWe would not disturb the finding of the Chancellor upon a matter of fact, unless theye is a decided preponderance of evidence against his judgment, as avo have repeatedly held. But if the seal Avas in fact affixed, the certificate was otherwise fatally defective as above shoAvn.\nIt may be hard that appellant should lose the benefit of the mortgage by the negligence or incompetency of the notary, but Ave cannot change, or disregard the Ihav to prevent such hardship.\nDecree affirmed.", "type": "majority", "author": "English, Ch. J.:" } ], "attorneys": [ "Terry & Vaughan for appellant.", "Compton & Parsons, contra.." ], "corrections": "", "head_matter": "Little, Trustee, vs. Dodge, Guardian, etc.\n1. Conveyance by Married Woman.\nAny substantial deviation from the form prescribed by the statute for the conveyance of real estate by married women, will render the deed invalid.\n2. -: Acknowledgment.\nA substantial compliance with the statute must affirmatively appear from the certificate of acknowledgment.\n8. Conveyance by Husband and Wire: Acknowledgment.\nThe certificate of acknowledgment of a conveyance executed by husband and wife, must slate that the husband acknowledged that he had execu- , ted the deed for the consideration and purposes therein mentioned and set forth, and that the wife acknowledged that she had executed it for thepwrposes therein contained and set forth.\n4. Same.\n\u25a0 The statement in the certificate of the wife\u2019s acknowledment that she acknowledged that she signed said deed freely and of her own consent, but not by the persuasion or compulsion of her said husband, is equivalent to stating that she had \u201c of her own free will, executed the deed *\u25a0 * * without compulsion or undue influence of her husband,\u201d and is a substantial compliance with the statute.\n5. -.\nWhen the acknowledgtneuL is taken before an officer having an official soai, it should be authenticated by his seal of office.\nAPPEAL from Pulaski Chancery Court.\nHon. John R. Eakin, Chancellor.\nTerry & Vaughan for appellant.\nCompton & Parsons, contra.." }, "file_name": "0453-01", "first_page_order": 453, "last_page_order": 462 }