Drury v. Foster

U.S. District Court

Decided July 1, 1862

U.S. District Court · decided 1862-07-01

In this cause, which was a bill filed by the mortgagee. Drury, in 18G3, to foreclose a mortgage made by the defendants, Foster and wife, the defence was, in substance, that the mortgage, when executed and acknowledged, contained several material blanks, which were afterwards filled up without the knowledge of the wife, who never assented to or ratified the instrument as thus perfected.

Decided 1862-07-01

¶1An elaborate opinion was delivered (after-wards affirmed by the supreme court of the United States,—Drury v. Foster. 2 Wall. [69 U. S.] 24), in which it was held (dismissing the bill as to the wife) by

NELSON, District Judge.

¶21. Under the statute of Minnesota, above copied, a certificate of the officer as to the due acknowledgment of a deed or mortgage is not conclusive; and parol evidence may be received to show that when the instrument was executed and acknowledged by the wife, there were material blanks left therein, which were after-wards filled up.

¶32. Under the statute of Minnesota, above mentioned, a married woman can pass her real estate or bar her dower only by executing and acknowledging the deed; and a deed void when acknowledged by the wife by reason of containing material blanks, cannot be ratified by subsequent consent on her part, unless given in accordance with the statute, viz.: by a re-acknowledgment of the instrument