Under the statutes of Virginia, which were in force in September, 1837, and equally under the statutes of Ohio, which were in force at that time, a deed by husband and wife conveying land of the wife, was inoperative to pass her title, unless the husband, she having duly acknowledged the deed, signified his assent to the conveyance in her lifetime by an acknowledgment in the form prescribed by law.

EJECTMENT. Judgment for defendant. Plaintiffs sued out this writ of error. The case is stated in the opinion of the

court.

Mr. C. B. Matthews for plaintiffs in error.

No appearance for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This was an action to recover forty-two undivided one-hundredth parts of a tract of land, in the county of Fayette, State of Ohio. The answer denied that the plaintiffs, or either of them, have any estate, title, or interest in or to this land, or to any part thereof. The defendants, also, pleaded that no cause of action accrued to the plaintiffs or to either of them against him within twenty years prior to the filing of the petition.

The bill of exceptions shows that the plaintiffs in error, after offering in evidence a patent of the United States covering the land in controversy, made proof tending to establish the following facts: The patentee, William Green Munford, died intestate, leaving as his only heirs, Robert Munford, John Munford, Stanhope Munford, William Green Munford, Elizabeth Munford, and Mary Munford. Three of these heirs. Stanhope, William Green, and Elizabeth-died early in the

Opinion of the Court.

present century, unmarried, childless, and intestate; the other three inherited the patented lands in equal shares. Margaret Ann Munford, the only heir of Robert Munford, who also died intestate, was born in the year 1800, and in 1819 intermarried with John Sinclair. She died intestate September 13, 1837, having inherited one-third of the property in controversy. Her husband died August 3, 1875. The original plaintiffs are her only heirs, and J. Hairiston Sewall is the grantee of some of the original plaintiffs for whom he was substituted as a party.

This was the case made by the plaintiffs in error who were plaintiffs below.

The defendant, to maintain the issues on his part, offered in evidence a certain deed, purporting to be a conveyance to one Cary S. Jones of the interest of John Sinclair and Margaret Ann Sinclair, his wife, in this land.

That deed is dated September 10, 1837-three days before the death of Mrs. Sinclair-and purports to be signed by the grantors Sinclair and wife, of Gloucester County, Virginia -and to have been "signed, sealed and delivered in presence of Wm. Robins, Richard S. Jones, and Pet. R. Nelson." Attached to it are the following certificates:

"GLOUCESTER COUNTY, to wit:

"We, William Robins and Peyton R. Nelson, justices of the peace in the county aforesaid, in the State of Virginia, do hereby certify that Margaret Ann Sinclair, the wife of John Sinclair, parties to a certain deed bearing date on the 10th of September, 1837, and hereunto annexed, personally appeared before us, in our county aforesaid, and, being examined by us privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said Margaret Ann Sinclair, acknowledged the same to be her voluntary act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it. "Given under our hands and seals this 10th day of Septem ber, 1837.

Opinion of the Court.

"STATE OF VIRGINIA, Gloucester County, to wit:

"We, Wm. Robins - Thomas Smith, justices of the peace in the county and State aforesaid, do hereby certify that John Sinclair, a party to a certain deed bearing date the 10th day of September, 1837, and hereunto annexed, personally appeared before us in our own county aforesaid, and acknowledged the same to be his act and deed, and desired us to certify the said acknowledgment to the clerk of the counties of in the State of Ohio, in order that the said deed may be

recorded.

"Given under our hands and seals this 14th of May, 1840. "WM. ROBINS. [SEAL.] "THOMAS SMITH. [SEAL.]

"STATE OF VIRGINIA, Gloucester County, to wit:

"I, John R. Cary, clerk of the court of the county aforesaid, in the State aforesaid, do hereby certify that Wm. Robins and Thomas Smith and Peyton R. Nelson, Esquires, whose names and seals are affixed to the within certificates of acknowledgments, were, at the time of subscribing the same, justices of the peace in and for the county aforesaid, duly commissioned and qualified, and that due faith and credit may and ought to be given to all their acts as such.

"In testimony whereof I have hereunto subscribed my name as clerk aforesaid and affixed the seal of the said county this 14th day of May, 1840, in the 64th year of the Commonwealth. "[L. s.] JOHN R. CARY, C. G. C.

"STATE OF VIRGINIA, Gloucester County, to wit:

"I, Wm. Robins, presiding justice of the court of the county aforesaid, do hereby certify that John R. Cary, who has given the certificate below, is clerk of the said court, and that his attestation is in due form.

"Given under my hand this 14th day of May, 1840.

"WM. ROBINS, Sen'r. [SEAL]"

The plaintiffs objected to the admission of the conveyance in evidence, upon the ground that, as it was not acknowledged or

VOL. CXXVII-46

Opinion of the Court.

proven by John Sinclair until after the death of his wife, it was not sufficient and valid, as a conveyance of the latter's interest, either under the laws of Virginia, where it was executed, or under the laws of Ohio, where the land is situated. This objection was overruled and the deed admitted in evidence, to which the plaintiffs excepted. The defendant offered in evidence deeds conveying to him whatever title Cary S. Jones had, and admitted that he was in possession of the premises in controversy.

No further evidence being offered, the court charged the jury that the deed of September 10, 1837, was a valid conveyance and passed to the grantee Jones all the interest of Margaret Ann Sinclair in the premises; that the defendant, by subsequent conveyances, had become the grantee of that interest; and that he was entitled to a verdict. To this charge the plaintiffs excepted.

The act of the general assembly of Ohio, passed February 21, 1831, entitled "An act to provide for the proof, acknowl edgment, and recording of deeds and other instruments of writing," was in force both when Mrs. Sinclair acknowledged the deed to Jones - September 10, 1837-and when it was acknowledged, in 1840, by her husband. Its fifth section is in these words: "All deeds, mortgages, powers of attorney, and other instruments of writing, for the conveyance or incumbrance of any land, tenements or hereditaments, situate within this [that] State, executed and acknowledged, or proved in any other State, Territory or country, in conformity with the laws of such State, Territory or country, or in conformity with the laws of this State, shall be valid as if executed within this State in conformity with the foregoing provisions of this act." 29 Ohio Statutes, 346; 1 S. & C.

458, 465.

The statute of Virginia applicable to the case was the act of February 24, 1819 (Revised Code, Va., 1819, p. 361), entitled "An act to reduce into one the several acts for regulating conveyances and concerning wrongful alienations."

Its first section provides:

"That no estate of inheritance or freehold, or for a term of

Opinion of the Court.

more than five years, in lands or tenements, shall be conveyed from one to another unless the conveyance be declared by writing sealed and delivered; nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her or their act, before the court of the county, city or corporation in which the land conveyed or some part thereof lieth, or in the manner hereinafter directed, and be lodged with the clerk of such court to be there recorded."

The fourth section provides:

"All bargains, sales and other conveyances whatsoever of any lands, tenements or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for a term of years, and all deeds of settlement upon marriage wherein either lands, slaves, money or other personal things shall be settled or covenanted to be left or paid, at the death of the party or otherwise; and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void, as to all creditors and subsequent purchasers 'for valuable consideration without notice,' unless they shall be acknowledged or proved and 'lodged with the clerk to be' recorded, according to the directions of this act; but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration,' shall nevertheless be valid and binding.”

The fifteenth section makes specific provision for the execution and acknowledgment of deeds by husband and wife. It is as follows:

"When a husband and his wife have sealed and delivered a writing, purporting to be a conveyance of any estate or interest, if she appear in court, and, being examined privily, and apart from her husband, by one of the judges thereof, shall declare to him that she did freely and willingly seal and deliver the said writing, to be then shown and explained to her, and wishes not to retract it, and shall, before the said court, acknowledge the said writing, so again shown to her, to be