#### John Den ex dem. of Cornelius Burgess et al. v. Willis Wilson,

From Camden.

The certificate of the Clerk of the County Court is evidence of the probate of a deed ; but it is supposed to be the result of the facts proved by the record — and where it is contradicted by the record, it must be controlled by the latter.

By the act o1 1715 {Rev. c. 3) as f xplained and amended by the act of 1751 {Rev. c. 50) a deed to convey the lands of a feme covert, must, except in case of her inability to attend, be acknowledged by the husband and wife in open Court. Proof by witnesses of the execution is not sufficient.

Under these acts, the proper mode to bar the wife, she being able to attend, is for the husband and wife to acknowledge the deed personally in open Court, and then for one of the Court to take the private examination of the wife.

When the wife cannot attend, the deed must be first proved as to the husband, and then a commission issued to two or more Commissioners to take the ackm wledgment and privy examination of the wife.

Where a Justice was directed to take the private examination of the wife before the deed was proved as to either the husband or the Wife, who upon making his report, proved the execution of the deed by the husband and wife, and also certified as to her private examination — held, that the deed was inoperative, and did not bar the heir of the wife.

This was an action of E jectment, tried before his Honor Judge Strange, on the Spring Circuit of 1827". *307The lessors of the Plaintiff claimed, as heirs at law of cue Sarah Burgess ; the Defendant, under a deed from the said Sarah, and Lemuel Burgess„ tier husband, to one Dempsey Sawyer ; and the only question was, whether that deed was acknowledged so as to bar the feme covert. Upon tfie deed was the following endorsement, signed by the Clerk of the County Court :'6t Camden County Court, “ November Term, 1812. The foregoing deed of bar- “ gain and sale from Lemuel Burgess and Sarah Burgess is his wife, to Dempsey Sawyer, was exhibited in opea (i Court, and proved by the oath of Caleb Perkins, a sub-iS scribing witness thereto. And on motion ordered, that “ Caleb Perkins, Esquire, be appointed to take the pri- £< vate examination of the -said Syr ah Burgess, feme covert, “ touching her free consent to the execution of the said 46 deed, and report thereon, under the direction of an act “ of the General Assembly, in such case made and pro-is vided. Pursuant to said order, the said Caleb Perkins f< proceeded to take the private examination of the said Sarah, separate and apart from her husband, and re-'ii ported that she, the aforesaid Sarah Burgess, feme eo~ “ vert, acknowledged that she executed the said deed of '•s her own free will and accord. All done in due form, “ of law, and on motion ordered to be registered.”

June, 1830.

To explain and control this certificate, the lessors of the Plaintiff produced the minutes of the County Court, from which the following are extracts:

“ Monday, November 2, 1812, on motion ordered that “ Caleb Perkins, Esq. be appointed to take the private ct examination ol‘ Sarah Burgess, úfeme covert, touching ee her free consent to the execution of a deed of bargain “ and sale to Dempsey Sawyer, of certain lands, &c.”

“ Tuesday, November .1, 1812. A deed of bargain (i and sale for certain lands from Lemuel Burgess and 8a-Si rah his wife, to Dempsey Sawyer, was exhibited in open il Court, and proved by the oath of Caleb Perkins, a sub- “ scribing witness thereto. And further, said Caleb Per- « kins, agreeably to an order of this Court, reports that *308« ¡i(? proceeded to privately examine said Sarah Burgess, (( ^(}llc|j¡tl™ ]K,r f,.e8 consent to the execution of said deed, , , , „ ... “ and that she says it was done with her free will, con- « gP11|- an(] accord.”

Under the directions of his Honor, a verdict was returned for the Plaintiff, and the Defendant appealed.

The cause was argued at the last term, by

Gaston, for the Defendant, and Hogg for the Plaintiff.

Ruffin, Judge.

The Clerk’s certificate on the deed states, that it was proved by Mr. Perkins; and tiiat the Same person being appointed by the Court to take Mrs. Burgess’ privy examination, reported thatshe acknowledged that she executed it, freely and of her own accord. From this it does not appear when Perkins proved the deed ; whether before or after he had examined the feme ; nor whether she acknowledged the deed at Court 5 nor whether the same was proved in Court as to her, or not. It is indeed to be prima fade inferred, that the proof was as to both the husband and the wife, and that it was proved before Perkins was delegated to take her privy examination. This certificate of the Clerk is evidence by the act of Assembly. But it is not higher evidence of what the Court did, than the record of the Court itself ; nor so high. The certificate, is made, evidence, because it is presumed the Clerk will be guided, as to the facts stated in it, by the record, and that they will accord. They are often made after Court, and it would be dangerous to consider them as overruling the record, when contradictory ; or as not to be construed with it, when reconcilable. Both documents may be read together, legitimately. By reference to the record it is seen, that in fact the acknowledgment of the feme was not taken in Court, nor was it proved as to either husband or wife, until after Perkins had been appointed to take the privy examination# and had taken and reported it. He *309was appointed on Monday, and tiie deed was not proved until Tuesday, and at the same time he made his report.

it is argued, that under the acts of 1715, (Rev. ch. & 7.) taken together, every thing was done, which is required, and that the order of doing it is immaterial. The course of reasoning is, that the validity of the deed of a married woman depends upon her privy examination, and not upon the acknowledgment in Court, by herself or her husband. These last acts are held to relate only to the formal execution, and as testifying the husband’s assent. That bis acknowledgment in Court is sufficient under ch. 3 •, and that as by ch. 7, proof is maSe tantamount to acknowledgment, as far as formal execution and an order for registration are concerned, the proof by witnesses is all-sufficient to authorize the wife to*be privily examined, out of Court, by any justice of the Peace. I do not think the two statutes are in pari materia. They relate to distinct subjects. Being passed at the same session, it cannot be supposed, that the Legislature would adopt contradictory enactments, on one and the same matter. But if these provisions had been contained in the same chapter, each must be construed according to the subject matter. The last act provides generally for the proof and perpetuation of deeds, and enacts that they may be cither* acknowledged or proved. The third chapter relates exclusively to the particular subject of deeds made by husband and wife. The special ceremonies prescribed for these deeds are not dispensed with, because they are not required with regard to other deeds. The conveyance by husband and wife is a peculiar one, and stands by itself. We can therefore resort only to the third chapter for light on this subject. That requires the deed to be acknowledged in Court. But it is said, that this may mean, an acknowledgment by the husband alone ; and ought to beso held, because the wife’s acknowledgment in Court is superfluous, since that would be to require her to acknow-*310¡Py¡gP jf twice ; for it is clear, site must be privily.examined by one member of the Court. I think otherwise; ^ and that the inference is irresistible, that the acknow-jed^ment, in Court, must be by all the persons, whose deed it is. By the act, the deed cannot be registered upon proof, but only upon acknowledgment. Surely, it is of much more consequence, that this acknowledgment should be that of the wife, than of the husband ; since it is her freehold that passes, and she it is, who stands in need of the guardian care of a Court of Justice, to see her fairly dealt by. But whatever doubt might be raised on the act of 1715, is removed by that of 1751, (Rev. c. 50,1 which is in pari materia. The second section says, that conveyances sealed, by husband and wife, and by them personally acknowledged in the Court of the County, the wife being privily examined before some member of the Court, appointed for that purpose, &c. shall be good and valid. Here is a positive injunction, that the deed shall be acknowledged by both, and that in Court. Snperadded thereto is the provision for her privy examination by one magistrate. But this does not supersede the acknowledgment in Court, and vest the power in a single person to take the acknowledgment out of Court. It would be strange, that no such authority is confided as to other deeds, which are to be proved or acknowledged in Court; and yet should be in the instance of deeds by a feme covert, which the Legislature intend to surround by especial and cautious safeguards. It has always been understood, that such deeds were to be acknowledged by the wife, in open Court. The late Chief Justicp Taylor explicitly lays it down so, in Whitehurst v. Hunter. (2 Hay. 401.) It is true, that the privy examination is not in open Court; for that would be an absurdity in terms. But it is to be within its verge, as it were; and by a Justice of the Peace — not by virtue of his office — but as “ a member of the Court.” It might he by the whole Court j hut for convenience’ sake, it is *311permittted to one. After open confession in Court, she is then to be examined, when in privacy, and with the. * * self-collection, which a timid female, in the presence, of a crowd, and over-awed by the authority of her husband, might not be able to command in public, that she may have an opportunity of retracting her deed, after her interests have been weighed by her, and her rights explained by an intelligent and upright judicial officer. This being done all at once, there is not so much apprehension, tho’ certainly some even here, of malversation in the examining magistrate. The danger of immediate detection would subdue his disposition to aid in the undue machinations of a cruel husband. But the facility for practising abuses on the wife would be great indeed, if the trust of receiving her acknowledgment were reposed in a single Justice of the Peace, as matter in pais.

The two methods do not differ then more in form, than in substance. It is true, that the acts authorize a Judge of the Superior Court to take the acknowledgment of the husband and wife, and the privy examination of the latter •, and this being to be done by one person, the whole is necessarily one act. ft has been seriously doubted by respectable lawyers, whether the true construction of (he statute does not require this to be done in Court. But the usage to the contrary has been so uniform and long, that it cannot now be questioned. But the law very properly relies more upon the intelligence and integrity of the high judicial officers, selected by the Legislature from the whole profession, than on any single inferior magistrate of a county. But my own practice has always been, to take the acknowledgment of both the husband and wife together, and immediately after to examine her pri-viiy. i never take the acknowledgment of the wife first, nor of the husband, until the deed purports to have been executed by the wife. This I have done upon the idea, that there is a peculiarity in tiieir deed, which rendered. .it necessary. In others, each party acknowledges the *312(]cer| as [,¡s own. But as the validity of the wife’s deed depends, not only upon her husband’s executing it as his own, and upon her freely executing if. also, but like-wjse> Upon |,er having so executed it by the husband’s consent, it has occurred to me, that they are to acknowledge it as their deed, and not simply as his or her deed. Be filis as it may, it is clear, that it ought to be fully executed, before it is acknowledged or proved, as to either. For by the third and fourth sections of the act of 1751, provision is made for the case of a woman who cannot personally travel to Court, when, upon proof of its execution in Court, or on the acknowledgment of the husband, a commission is to issue to take her acknowledgment. This recites, that“ whereas F. G. hath produced a deed, made to him by H. I. and IC his wife, and procured the same to be proved (or acknowledged by the said H. I.) in the Court, &c.” Now unless the wife had before executed it, the deed could not be produced, nor be said to be made by them- — much Jess proved.

In the case before us, no deed was brought into Court, nntil the day after the Court took the first order on it; and by possibility it may have been executed by the wife, without the privity of the husband. The provisions of these two sections likewise prove, the necessity of an acknowledgment in Court, except when a commission issues. For under the second section, the magistrate, after her acknowledgment, is to examine her, “ whether she doth voluntarily assent thereto.” But when the commission issues, it is “for receiving the acknowledgment of the wife,” which had not been previously given. This change of phraseology evinces a difference in office. The commission also is to be directed to two or more, and is to issue only when the wife cannot travel to the Court. This shows, that the power of taking the acknowledgment of the deed, was a greater one than the Legislature Was willing to confer upon a single subordinate magistrate. And further, that the acknowledgment in Court is to be dispensed with, not for any trivial inconvenience, *313but only for necessity — when the wife is kept away by age, sickness, or residence ¿abroad.

Tiie provisions of the statutes seem therefore plain and precise. The deed is to be acknowledged by both of the parties in Court, except in the single case of a commission issuing, as provided in the latter clauses of the act of 1751. There seems to be no reason for relaxing the provisions of the statute by a liberal construction. The scrupulous regard with which the Courts of Westminster search into the motives of a married woman, for suffering a recovery, or acknowledging a fine, is worthy of all praise and imitation. We but follow their example, in holding to the letter of our law. ft is true, the acts were passed to facilitate alienations by married wo- . men, but not to encourage them, and especially not to furnish temptations nor opportunities to the husband, to extort from the wife a conveyance, which he might do, if a public, as well as a private exhibition of the instrument were not required. The presumption of the law, that the will of the wife is subdued to that of the husband, is, so far as regards the disposition of her estate at least, but too fully verified by our experience. Every ceremony, however formal, which lias the least tendency to interpose the protection of the law, or the advice of an additional judicial character, ought to be adhered to, substantially and literally.

Per Curt&m. Judgment affirmed.