Drury v. Foster

¶1A paper, executed, under seal, for the husband’s benefit, by husband and •wife, acknowledged in separate form by the wife, and meant to be a mortgage of her separate lands, but with blanks left for the insertion of the mortgagee’s name and the sum borrowed,-and to be filled up by the husband, is'no deed as respects the wife, when afterwards filled up by the husband and given to a lender of money, though one bond fide and without knowledge of the mode of execution. The mortgagee, on cross-bill to a bill of foreclosure, was directed to cancel her name.

¶2Foster, of Minnesota, being about, to- engage in some enterprise, and wanting money, asked bis wife, wbo owned, in ber separate right, a valuable tract of land in tbat State, to mortgage it for bis benefit. - "Wbat exactly was said or promised did not appear. However' Foster afterwards went to a notary, wbo exercised, as it seemed,.tbe business of a scrivener also, and directed bim to draw a mortgage of tbe property, with bimself and wife as mortgagors, but leaving the .name of the mortgagee, and the sum for which the land was mortgaged, in blank. This tbe magistrate did. Foster acknowledged the: deed, at the magistrate’s office, in this shape, and tbe magistrate then took tbe instrument to Mrs. Foster, at ber husband’s bouse, tbat she might sign and acknowledge it in tbe same shape. When tbe magistrate took the. mortgage to her thus to executé, Mrs. Foster said, “she was fearful tbat tbe speculation which ber husband was going into would not come out .right; that she did not like to mortgage that place, but that be wanted to raise a few hundred dollars, or several hundred dollars, or something to tbat effect,” — tbe magistrate, wbo was the witness that gave tbe testimony, did not recollect tbe exact expression which she used, — - “ and tbat she did not like to refuse bim, and tbat so she consented to sign tbe mortgage.” Mrs. Foster, having signed tbe instrument in this blank shape, tbe notary, under bis band and seal, certified, in form, tbat tbe husband and wife, “the signers and sealers of tbe foregoing deed,” bad personally appeared before bim, and acknowledged the signing, and sealing thereof to be their voluntary act and deed, for tbe. uses. *25and purposes expressed;” and that the wife, “being examined separate and'apart from her said husband, and the contents of 'the foregoing deed made known to her by me, she then acknowledged that she executed the same freely, and without fear or compulsion from any one.” ■ Such form of separate acknowledgment, it may be well.to say, is required by statute, in Minnesota, to .give any effect to a feme covert's deed. After taking the wife’s acknowledgment, the notary gave the instrument to her husband. He, finding the complainant, Drury, willing to lend as much as $12,800 upon the property, himself -filled up the blanks with the name of Drury, as mortgagee,- and with the sum just mentioned as the amount for which the estate was mortgaged. In this, form the instrument was delivered to Drury, who, knowing nothing of the facts, advanced the money in go$>d fait]}, and put his mortgage on record. There was no evidence that the wife derived any benefit from the ’money advanced, or that she ever knew that such a large sum was advanced.

¶3On a bill of foreclosure brought four years afterwards by Drury against Foster and wife, in the Federal Court for Minnesota, the defence was, that the mortgage was not the wife’s deed; á defence which the court below thought good as to her. It accordingly dismissed the bill as regarded her, giving a decree, however, against the husband. ■ The correctness of its action as regarded the wife was the question, ón appeal, here.

¶4Mr. Peclchamfor Drury, themortgagee:

¶5All 'Will admit that it .is not easy to conceive of. a case 'addressing itself more to a sense of .equity. Drury, without a circumstance to excite suspicion, and relying upon a mortgage regular upon Its face, advanced a large sum in perfect, good faith. • He supposed, too, as was natural, that the mortgagors were acting in equal good faith. Mrs. Foster deliberately, and with understanding, put it into the power of her husband to obtain the loan. Will she be permitted, at this late day, in conjunction with her husband, to disavow her acts, and thus, in effect, defraud an innocent third party whom she has been *26chiefly instrumental in bringing into his present position ? Even if Mrs. Foster were entirely innocent’in the premises, and was the victim of the fraud of her husband, yet either she or the plaintiff must suffer loss in the present case; and no principle is better settled than that where loss must fall upon one of two innocent parties,- it must be borne by that one who is most in fault. There is no reason for exempting the wife from the operation of this rule. On the contrary, in transactions between the husband and wife and third parties, there is the strongest reason for applying the principle. It would be public policy · Case Law">against public policy, and expose transactions relative to real estate to hazard, to allow a married woman, to screen herself from the consequences of her own acts under the circumstances of the 'present case. Such a doctrine would subordinate all other interests to those of married women.

¶6Viewed on legal principles, the conclusion is to the same effect. It is of no pertinence to cite, in 'this day and this country, “ technical dogmas,” as Grier, J., calls them,* out of Shepherd’s Touchstone, or Perkins. These- old books may, indeed, declare, “that if a man. seal and deliver an empty piece of paper or parchment, albeit he do therein withal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed.”† But such doctrines have been exploded, even in England, these two hundred years. Certainly the-contrary, as respected a bond, was adjudged in ZoucTi v. Claye, 28 and 24 Charles II, in the days of. Norman French and of black-letter law. Levinz thus reports the case :‡

¶7“ Det sur obligation. Le case fuit tiel. A. and B. seal and deliver le bond a C., et puis per le consent de tout's les parties le ■nom et addition de D. fuit interline, et il auxy seal l’obligation et c'eo deliver. Et si I’obligation per cest alteration fuit faet void vers A. and B. fuit le question. Etper Hale et totam curiam adjudge que nemy.”

¶8*27“ Debt on bond. The ease was this. A. and B. seal and deliver a bond to.C- i and then, with-the consent of all parties, the name and addition of D. was interlined; and he also sealed the bond and delivered it. The question was whether, owing to this alteration, the bond was void as respected A. and B. And by Hale, and the whole court adjudged that it was not.”

¶9. Texira v. Evans, cited in Master v. Miller, and reported by Anstruther,* A.D. 1798 (Nerd Mansfield’s, time), did but affirnpi this old adjudication. There, Evans wanted to borrow £400, or so much of it as his credit should be able to raise. For this purpose he' executed a bond, with blanks for the name and sum, and sent. an agent to. raise money on the bond. . Texira lent £200' on it, and the agent accordingly filled up the blanks with the sum and Texira’s name, and delivered the bond to him. On non est factum pleaded, Lord Mansfield held it a good deed.

¶10The principle was early enunciated in America. .Chief Justice Parsons, in delivering the judgment in Smith v. Orooker†where a bond had been executed by a surety before bis name had been inserted in the body of the instrument, and his name being afterwards inserted therein in his absence, holding, the instrument valid, remarks: “ The party executing the bond, knowing that there are blanks in it to be filled up by inserting' particular names or things, must be considered as agreeing that the blanks maybe thus filled after he has executed the bond.” Ex parte Kerwin‡is a later case, one in New York. It was there held, that an appeal bond drawn in blank as to the recital of the judgment, and executed by the. appellant and his surety, the former giving parol authority to his surety to' ascertain from the justice the amount of the judgment, and fill up the blank accordingly, and deliver, the bond for both, and which was done, was a good bond. This is similar to the case at bar, in the respect that the agent for the insertion of the blanks and delivery of the instrument was one of the co-obligors. *28Many other American, cases are to the same-point.* This relaxation of ancient technicality is universal in our new Western States'.. There people déal with lands as they do with oxen; and pass a fee simple to á hundred acres with •as' much facility as they do the title to a plough or a cart.†

¶11We assert, and the cases just cited prove, that a paper under seal, executed with blanks, becomes, when those blanks are filled up, and the instrument is afterwards delivered, the party’s deed. And it is difficult to see why a contrary view should be entertained. Parol authority is confessedly sufficient for the mere- delivery of a deed. But delivery is the. act of acts. It is the act by which each and all of the other acts necessary to' thé execution of the deed become operative and effectual. By it the signing, the sealing; and the acknowledgment take effect, if, therefore, delivery can be made 'under parol authority, why may not blanks be filled in, and alterations and interlineations made in deeds before their delivery by like .authority ? Neither of these things •constitute the execution of a deed, but are merely acts ne-. cessary to be performed in the execution thereof;, acts consummating and giving effect to the execution.

¶12The fact that the. party making this deed was a feme covert is unimportant.' What'an ordinary person may do without examination, a, feme covert may do when separately examined. If an ordinary person, without examination, may execute a deed with blanks, a feme covert may execute a similar deed, provided she be separately examined, know, fully what she does, and it be plain that it was such akleed she wished and meant to execute. Why not? Certainly she could convey her. whole estate, if it were conveyed by deed, whose blanks were filled. Why may she not convey a portion whose extent remains undefined, if she has wished and meant so to do ?. Her real wishes, her perfect knowledge of what she is *29doing, her entire freedom from the husband’s coercion and compulsion, these are the points to which the law looks; and these 'being settled, her capacity is as great as if dis-eovert. In this ease, when separate and apart from her husband, Mrs. Foster gave her voluntary consent to a sealed instrument, with blanks; in that same manner, she authorized these blanks to be filled at the discretion of her husband, to whom she knew it would be handed over.

¶13But even if not her deed, Mrs. Foster-is estopped from asserting- that she did not execute the mortgage. The mortgage in question was- duly sighed, sealed, acknowledged, and certified to, with the name of the grantee and the amount of the ‘mortgage debt in blank, and was, when so signed, sealed, and acknowledged, well known to both grantors to contain these blanks. The conclusion, therefore, is, that the blanks were designedly left by both grantors to facilitate the negotiation of the loan, which was t-he avowed object of the. execution of the mortgage, well known to and understood by Mrs. Foster, as appears by her' own declarations made to the notary public at the time, and because the amount .and terms of the loan which her husband might succeed in effecting, and the party of whom he might make it, were at the time unknown to^ either grantor. The mortgage having been thus deliberately, -and with understanding, executed in such form and for such purposes by both parties, was, with the full- knowledge and deliberate consideration of Mrs. Foster, delivered by her to the notary, to be by him delivered to the other grantor, her husband, which was accordingly .done; and this mortgage, with all the blanks filled in, and in all respects -perfect, was delivered by Foster to Drury, the complainant. The doctrine of estoppel in pais, thus laid down by Lord Denman,* applies to such a case: “ The' rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own -previous position, the *30former is concluded from averring against the latter-a differ ent state of things as existing at the same time.”

¶14There is yet another ground why this decree, as respécts the wife, should be reversed. Evidence was introduced by Mrs Foster,.for the purpose of showing that, at the time of the signing, sealing, and acknowledgment of' the mortgage, there were blanks in it; and this evidence was introduced upon the theory that, there being such' blanks at such. time in the mortgage, this deed was no deed, at least so far as defendant, Mrs. Foster, was concerned. This evidence tended to contradict, and was introduced for the purpose of contra•dicting, the certificate of acknowledgment, and showing the same to be false; whereas, on the highest ground of public policy, such certificates are held to be conclusive evidence of the matters they contain, and they can neither be aided nor disproved by parol testimony, except, perhaps, in eases of fraud or imposition. In Jordan v. Jordan,*. Tilghman, C. Jl, recognizing this principle, said: “ There would be no certainty to titles if that kind of evidence were permitted. The law directs the magistrate to make his certificate in writing, and he has made it. To that the world is to look, and to nothing else.” The case of Jamison v. Jamison,† subsequently decided by the same court, is nearly parallel to the one at bar. It was the case of a mortgage executed by husband and wife, of the separate estate of the wife to secure the debt of the husband;, and in which there was an offer to prove, by the testimony of the justice of the peace before whom the acknowledgment was taken, that his certificate thereof was false. The court held that the certificate of the judge or justice to the acknowledgment of a deed by a married woman, is to be judged of solely by what appears on the face of the certificate itself; and that parol evidence of what passed at the time .of the acknowledgment is not admissible for the purpose of contradicting the certificate.

¶15Mr. Carlisle, contra:

¶16Whatever interest 'the husband had, passed, we concede, by the decree. What we assert is, that *31Mrs-. Foster’s estate in tbe land was never conveyed. Sbe never executed any deed in tbe premises. Sbe sighed, sealed, and acknowledged, but -never delivered, a blank form of a deefl of mortgage, containing no name of tbe grantee, or mortgagee, no statement or recital of tbe sum of money to be secured, or tbe time of payment; or, in short, of any of tbe matters indispensable to make tbe deed operative, except tbe names of tbe grantors and tbe description of tbe pro-, perty. It was an instrument wbicb conveyed nothing, because there was no grantee. It Was an unfinished mortgage in form; but it was no mortgage at all, because there was no mortgagee and no debt,' recited, described, or in any manner indicated. .It consists, in natural reason^ as well with Mrs. Foster’s ^declaration at tbe time sbe signed it, that it was intended to-be a security for “ a few hundred dollars,” as with the complainant’s claim for $12,|85; and it might as well have turned out a mortgage for a million of dollars. And because it was thus absolutely wanting in certainty, and might be anything, or nothing, when it was signed and acknowledged by Mrs. Foster, it was not, and could not become, her deed in law..

¶17To say that Mrs. Foster is estopped from denying that sbe executed tbe mortgage, because sbe signed, sealed, and executed it, is a petitio prineipii, simply.

¶18Tbe fact that Mrs. Foster was a married woman does make a potential element of tbe case. Observe tbe statement-of tbe case !■ “ Sbe, was fearful that tb.e speculation wbicb her husband was going into would not come out right-: sbe did not like to mortgage that place;” her paternal property, perhaps, tbe home of her own childhood. “ But he” — her bus-band — wanted to raise money, and “ sbe did not like to refuse ■him, and so sbe consented to sign.” Tbe case is an affecting illustration of tbe extent to wbicb a woman becomes, in marriage, “subdued to the very quality of her lord.” .Her woman’s fears had foreseen what her husband’s intelligence, never suspected; but like a woman, lovely and confiding, she-yielded everything to him. This court will surely remember tbe language of Marshall, C. J., in Sexton v. Whea-ton:*32* “ All know and feel tbe sacredness of the connection between husband and wife. All know that the sweetness of social intercourse, the harmony of society, the happiness of families, depend upon that mutual -partiality which they feel, or that delicate forbearance which they manifest towards each other.” Does any one doubt, if this' magistrate — the great offender in the cáse — had done the duty which the laws' of the State from which he derived his commission put ■ upon' him; that is to say, had refused to take any acknowledgment till the blanks in the deed were filled with $12,800, and its contents, in fact and in truth and spirit made known1' to the.lady — that however Mrs. Drury might have “so consented,” not “ liking to refuse him,” the magistrate could never have certified that she executed it “ freely.” ' This separate examination, if faithfully made — this certificate, itself a certificate of quasi judicial, approbation to what she does — if conscientiously given; given, as with the body of our higher magistracy we may hope that it only is given-; is the protection with which the law hedges the gentle nature of a woman— her crowning grace and glory — from the dangers, and perhaps the ruin, which, without the lawis protection, it is certain in many cases to- bring upon her. The argument which' treats her as an independent person, and would approximate her actions to those of our own sex — which would say that all that a man- may do without examination, she may do- if examined —violates the central' germ of truth úpsn the subject, the law of the inherent moral differences of our natures; the true and fine conception of the case, which gives to characters, thoughts, pássions, sentiments, and all things within, their sex. A certificate in blank is an absurdity, as' respects a married woman, if we look to the wise reasons of the law. By law, such a woman has no power to convey her estate at all. The law gives it to her on condition that she be examined separately, and consent fully and freely to the exact thing which 'she does. The certificate must-have been in fact,, and when made-a true certificate; and everything certified *33to'bave been done by the feme covert must have been exactly and specifically done.

¶19It is objected that the parol proof tends to contradict the official certificate of acknowledgment, and cases are cited in support of this objection. But they have no application. Here is nó attempt to aid a defective' certificate of acknowledgment, as in some of the eases cited. Nor is it an attack, by parol proof, upon a perfect certificate. It is simply proof of what the instrument was which was so acknowledged and certified; that it was not then the instrument which is produced by the complainant.