Daniel Hartley, Appellant, vs. Lawrence J. Ferrell, Appellee, 9 Fla. 374

DuPONT, C. J., delivered tlie opinion of the Court. This ivas an action of ejectment, instituted in the Circuit Court of Madison County, by the defendant in error, to recover of the plaintiff in error the possession of certain premises described and set forth in the declaration. At the trial of the cause, the plaintiff below offered in evidence, as a link in the chair of title, a Sheriff’s deed for a portion of the land in controversy, which had been made in virtue of a judicial sale of the premises, as the property of one Holland, who was in possession at the time of the sale.

The defendant’s counselvobjected to the introduction of this deed as evidence, unless it should be further shown that Holland, the defendant in the execution under which the sale wras made, also had title in himself. The Court overruled the objection, and permitted the deed to go before the jury, unaccompanied by any proof of title in Holland, other than his having been in possession at the time of the sale. To this ruling the counsel of defendant excepted, and this constitutes the error first assigned.

It is undoubtedly true, as insisted by the counsel for appellant, that in an action of ejectment, the lessor of the plaintiff must recover upon the strength of his own title, and not through the weakness of the defendant’s title. This is a canon of the common law, and its authority has never been questioned, however its application has been misunderstood.

The application of this principle is not to be understood as requiring that a plaintiff in making out his title shall be compelled in the first instance to trace the chain back to the first grantor, but only that he shall exhibit so much as will put the defendant to the support of his possession, by a title superior to one of a mere naked possession. According to the bill of exception, it seems .that the defendant made no exhibition of paper title, but was content to rely upon mere naked possession.

It is, however, expressly stated, that Holland, the defendant in the execution under which the land was sold, and by virtue of which sale the Sheriff’s deed was made, was in the actual possession of the premises at the time of the sale, and consequently his possession must have been anterior to that of the defendant, and his title by possession also superior to the defendant’s title by possession.

Now it was only necessary for the plaintiff, in the first instance, to trace back to that superior title, and as the defendant failed to exhibit a title paramount to that, we think that he had done enough to permit him to go to the jury. The citation in the brief from 2 Greenleaf on Evidence, §316, is not applicable to the point raised by the exception.

That authority only maintains, that where the plaintiff ■claims under a Sheriff’s deed, and the action is against a stranger to the execution by virtue of which the premises were sold, it is incumbent on the plaintiff, in order to sustain the deed, to make due proof of th% judgment and execution. This is not the point raised by the exception, and indeed we find no intimation in the record that the judgment and execution had not been fully proved. The citation from Conference (N.

O.) Reports, 527, would seem to sustain the exception taken in this case; but that is a very old case, and there is no citation of authority in the opinion, which is embraced in the compass of six or eight lines. In opposition to this authority, is the more recent case of “ Whately vs. Newsom,” (10 Geo.

R. 74,) in which it is held that “ a purchaser at a Sheriff’s sale has only to show his deed, the execution under which the land was sold, and prove title in the defendant, or possession since the rendition •of the judgment, and the onus probandi is cast upon the opposite party.” And this decision is in perfect consonance with the general rule that a plaintiff in ejectment is required, in the first instance, only to show a legal title and a right «of entry under it, in order -to drive the defendant to the exhibition of a paramount title. Cooper vs. Galbraith, 3 Wash. C. C. R. 546; Tillery vs. Wilson, 1 Overt.

R. 236; Wood vs. West, 1 Black. R. 133; West vs. Pine, 4 Wash. C. C. R. 691; Riddle vs. Murphy, 7 S. & R. R. 230. The second error assigned is in the following words, viz? •“ In ruling the deed of Lavinia Sellars and her husband to .be sufficient, and valid, and good, without the private examination of the said woman, and allowing it to be read to the jury as evidence of title.” The deed alluded to in this assignment is embraced in the record, and is sufficiently referred to in the bill of exception as matter of evidence adduced on the trial.

We shall have occasion to refer to this deed more particularly hereafter. It was argued for the -defendant below that the premises embraced in the deed being the separate estate of the wife, she could not divest herself of the title but by submitting to a private examination apart from her husband, and that the act of 1845, commonly designated the “'married woman’s law,” did not dispense with this formality. In order to have a proper comprehension of the point, we will recite the portions of the respective statutes bearing on the subject. The act of 1835, (Thomp.

Dig. 179,) provides as follows — “Any married woman, owning real estate of inheritance in this State, may sell, convey, transfer of mortgage the same, or any part thereof in the same manner as she might do, if she were sole and unmarried: Provided, the husband of said married woman join in such sale, conveyance, transfer or mortgage, and the same be made and authenticated in the manner prescribed by the several acts in force regulating conveyances of real estate, and the recording and authenticating the same: And provided also, that such married woman shall acknowledge, on a separate or private examination, before the officer or other person appointed by law to take her acknowledgment of her execution of any such sale, conveyance, transfer or mortgage, separate and apart from her said husband, that she executed the same, freely, and without any fear or compulsion of her said husband.” It is worthy to be noted as a part of the judicial history of the State, that down to the date of this enactment, there was no mode provided by statute for the conveyance . or transfer of the real estate of a feme covert, and they were consequently confined to the common law proceeding of fine and recovery, which proceeding not having been brought into use, and a large amount of such estates having been conveyed by the mere deed of the husband, or his simply joining with his wife, the second section' of the same act was made to operate retroactively upon all such conveyances, and they were declared to be valid in law.

For the benefits which have accrued from this act, the country is indebted to the Hon. B. A. Putnam, the present Judge of the Eastern Judicial Circuit. It will be seen that by the provisions of this act, the deed of a feme cov&rt for the conveyance of real estate of inheritance was of no avail, unless the execution of the same were acknowledged by her, upon a private examination, separate and apart from her husband. So stood the law until the passage of the act of 1845, commonly called the “married woman’s law.” The 4th

section of that act reads as follows, viz: “ The husband and wife shall join in all sales, transfers and conveyances of the property* of the wife; and the real estate of the wife shall only be conveyed by the joint deed of the husband and wife, duly attested, authenticated and admitted to record, according to the laws of Florida regulating conveyances of real property.” (Thomp.

Dig. 221.) Since the passage of this latter act, the question has been mooted by the bar, but never authoritatively decided, whether the private examination of ther/me, requircdly by the provisions of the former act, have not been dispensed with by the terms of this act ? In support of the affirmative, it has been suggested that the conformity to the requisitions of the former act, which is directed by this act, reaches only to the “ attestation, authentication and recordation;” and that the requirement was not designed to embrace the “ execution ” of the deed.

We have given to this question the most patient investigation, and are constrained - to hold that the

section of the act of 1845, now under consideration, does not in any manner conflict with the proviso contained in the Act of 1835, which requires the private examination and acknowledgment of the wife. To come to a different conclusion as to the intention of the Legislature, would be to impute to that body a gross act of stultification, in this, that while professing to enlarge the protection to be given to the rights of married women, they had, indeed, deprived them of their most valuable safe-guard, to wit: protection against the undue influence of their husbands.- But this

interpretation of the act is not dependent alone upon its spirit; we think that the very words of the act are sufficiently comprehensive .to indicate with certainty the intention of the Legislature. The words of this

section are: “ and the real estate of the wife shall only be conveyed by the -joint deed of the husband and wife, duly attested, authenticated and admitted to record, according to the laws ■of Florida regidatimg conveyances of reedproperty.” The question in this case is predicated upon the omission in this connection of the word “ executed,” but we think that its force and effect is fully comprehended in the -word “ authenticated,” especially as applied to the deed of a feme covert. To authenticate means to give verity, and thereby impart to the instrument its validity or operative effect.

Now, until an ordinary deed has been signed, sealed and detmered, it is totally invalid as a deed. All of these several acts must concur before it can be said to have been “ executed” and capable of “ authentication.” So equally as to the deed of a married woman — it must not only be signed, sealed and delivered, but in addition thereto, its execution must be acknowledged upon a private examination, before it will be capable of authentication. From the very words of the statute, then, we conclude that there must be a conformity to the requisition contained in the proviso embraced in the act of 1835.

Having arrived at the conclusion that the private examination of the wife is necessary to give validity to the deed, whether made under the provisions of the act of 1835 or of 1845, we now proceed to the examination of the deed of Mrs. Sellars, the admission of which as evidence on the trial is the point of error now under consideration. There is no evidence in the deed itself that the premises intended to be conveyed was the separate property of the wife; but it is so stated.in the bill of exceptions, and must therefore be taken as a fact admitted.

The body of the instrument contains all the formalities and essential requirements of a valid deed, and is duly signed by both the wife and husband, in the presence of two witnesses. There is also attached to the deed the following acknowledgment and certificate : “ State of Florida, MacUson Country: Know all men by these presents, that I, Lavinia C. Sellars, wife of John Sellars, named in the foregoing deed of conveyance of real estate, to Lawrence T.

Ferrell, do hereby acknowledge that I executed the same, with the intent thereby to renounce, release, relinquish, and forever quit-claim, all my right, title and interest of dower, in and to the lands and tenements therein mentioned and expressed, and that the same was done, freely and voluntarily, and without any compulsion, constraint, apprehension or fear of or from my said husband, or any other person. “ In witness whereof, I have hereunto set my hand and seal, this 12th day of November, A. D., 1859. LAYINIA SELLARS, [l. s.]” “Executed in presence of J, ~W. Anderson, Samuel F.

Sloan.” “State oe Florida, Madison, 'County: Be it remembered that on this, the twelfth day of November, in the year of our Lord one thousand eight hundred and fifty-nine, personally came before me, the subscriber, a Justice of the Peace in and for said county, Lavinia O. Sellars, wife of John W. Sellars, and separately and apart from her said husband made and executed the foregoing acknowledgment. “ In witness whereof, I have hereunto set my hand and seal, the day and year first above written. J. W.

ANDERSON, [l. s.] Justice of the Peace.” The only objection made to the sufficiency of this private examination is that the interest acknowledged to have been assigned and intended to be transferred, is limited and confined to her “ right of dower” in the premises. If the words “of dower” were stricken out, there could be no doubt as to the sufficiency of the acknowledgment.

Shall these words be permitted to defeat the evident intention of the parties to the instrument 1 The execution of this acknowledgment was manifestly intended to convey some interest in the premises, or it was made in pursuance of a premeditated fraud. Mrs. Sellars had no dower interest; her only inter* est was in tlie/ed. If the fee was not intended to be conveyed, then no interest was passed to the grantee, and the whole transaction bears the impress of an unmitigated) attempt at fraud.

We will not do' this lady the injustice to put such a construction on her act; but will rather attribute the insertion of the -word “dower” to the lack of information or inadvertence of the officer who made the examination. We think that .the word maybe discarded as swrpT/usage, without doing violence to any principle of the law. Having maturely considered the case as presented by the record, we are of opinion that there was no error in the rulings of the Judge below. It is therefore ordered and adjudged that the judgment rendered in the Circuit Court be affirmed, with costs.