Was the deed executed and acknowledged in conformity with the laws of Ohio, where the lands are situated? In other words, would the deed have conveyed the interest of Mrs. Sinclair if it had been executed and acknowledged in Ohio by the wife in her lifetime, but not acknowledged by the husband until after the death of the wife? If so, it may be that, under the Ohio Statute of 1831, the deed would be good as between the heirs of Mrs. Sinclair and Jones; for that statute declares that a conveyance of lands in Ohio will be valid if acknowledged in conformity either with the laws of the State in which it is executed, or in conformity with the laws of Ohio.

It was suggested, in a somewhat different form,
but not decided, in the case of Rorer v. Roanoke
Nat. Bank. It was there argued that if a mar-
ried woman's deed only became effectual when
duly admitted to record it would result that if
the wife died between the date of her acknow-
ledgment and the recording of the deed the in-
strument would be wholly void. But the court
said: "Not so, however; for as between the
husband and the grantee the deed would be valid
and binding, though as to the wife it would be
inoperative-ineffectual to pass her title-until
duly recorded, for it is only then that a married
woman's conveyance becomes a complete trans-
action. But it is useless to argue this proposition
as the pretended recordation in 1875 of the deed Upon examining the Statutes of Ohio-the
of 1861 was prior to Mrs. Rorer's death. It is controlling provisions of which have been re-
sufficient to say that, if the question were pre-ferred to-and, also, the decisions of the Su-
sented directly for decision, it would be an ex-preme Court of that State to which our attention
ceedingly interesting one, as the authority for has been called, we find nothing to justify us in
recordation at a time subsequent to the execu- holding that a deed for land, acknowledged by
tion and delivery of the deed seems to rest solely the wife, but not acknowledged by the husband
upon the presumption of the wife's continuing in the lifetime of the wife, will pass her estate
acquiescence; and in 2 Tuck. Bl. Com., Bk. 2, in the lands conveyed. In Ludlow v. O'Neil,
p. 268, the distinguished author significantly 29 Ohio St. 181, it was held-using the language
suggests the question whether recordation after of the syllabus-that "under the Statute of
the death of the wife would be effectual," February 22, 1831, it is not indispensable to the
validity of a deed executed by husband and
wife that they should acknowledge it before
the same officer or at the same time and place,
or that their acknowledgment should be certified
by a single certificate." Yet "the acknowledg
ment of the wife is not binding upon her until
the deed is executed and acknowledged by the
husband." "The husband," the court said,
"can render the wife every needed protection
by himself refusing to sign and acknowledge
the deed. If she acknowledged it before the
husband, it is presented to him with the wife's
signature and acknowledgment, and he has only
to refuse to acknowledge.' We are of opinion
that equally under the Ohio and Virginia Stat-
utes, a deed by the husband and wife, convey-
ing the latter's land, is inoperative to pass her
title unless the husband-she having duly ac-
knowledged the deed—should, in her lifetime,
and by an acknowledgment in the form pre-
scribed by law, signify his assent to such con-
veyance.

While it was not essential, under the Ohio [729] Statute, that the deed signed by Sinclair and wife be put upon record in Virginia, we are of opinion that upon her death the deed, previously signed and acknowledged by her, upon privy examination, but not acknowledged by the husband, prior to her death, became so far as the laws of Virginia are concerned-inoperative as a conveyance of her interest in the lands in controversy. Until the husband acknowledged it, and thereby in the only way prescribed by statute, gave his assent to her conveying away her interest, the deed was ineffectual for any purpose. While it may not have been necessary that they should acknowledge the deed at the same time, or upon the same occasion, or before the same officer, the Statute of Virginia, upon any fair interpretation of its words, and having regard to the policy which induced its enact ment, must be held to have required that the acknowledgment of the husband should occur in the lifetime of the wife, while she was capable of asking his consent to the conveyance of her lands. But that assent was of no avail after the death of the wife before the husband had, by acknowledgment of the deed, signified his will ingness to have her convey to Jones, under whom the defendant claims title. Upon her death the title passed to some one. It did not pass to Jones, for the reason that there was not then in existence any completed conveyance, sufficient, under the law, to transfer her estate to a grantee. It, therefore, must have passed to her heirs, and their title could not be devested by any subsequent act of the husband. The fourth section of the Virginia Statute, declaring certain conveyances to be valid and binding as between the parties and their heirs, has no application to conveyances by a wife in which the husband does not join, during her lifetime, by an acknowledgment in the mode prescribed by law. It results that, if the admissibility as evidence of the deed to Jones depends upon its validity, under the laws of Virginia, as a conveyance of Mrs. Sinclair's interest in these lands, the court erred in not excluding it from the jury.

For the reasons stated the judgment is reversed, with directions to grant a new trial, and for further proceedings in conformity with law and the principles of this opinion.

Mr. Justice Matthews took no part in the decision of this case.

[730]

FARMERS' LOAN AND TRUST COM- [649]
PANY, AND ELIJAH SMITH, Receiver
and Trustee, Appts.,

V.

HENRY L. NEWMAN, Trustee.

(See S. C. Reporter's ed, 649-661.)
Receiver of railroad-sale on foreclosure-pay-
ment of lien.

1. Where the receiver of a railroad company made
an agreement with a person having a lien upon a
part of the railroad, to pay such lien out of the
moneys realized from such part of said railroad
upon foreclosure sale, and induced the lienor to

This is an appeal from a final order setting aside a sale, made under a decree of foreclosure, of certain mortgaged railroad property, as well as the confirmation thereof, and requir ing the receiver, appointed in the foreclosure proceedings, to regain possession of the propCourts have no power to set aside their judg-erty, unless the purchaser, before the expiraments and decrees at a term subsequent to that at which they are rendered and passed, unless the right to do so is preserved by motion or otherwise.

The Lexington, Lake and Gulf Railroad Company was a Missouri corporation, with power to construct and operate a road from Lexington to the southern boundary line of that State. Having constructed the roadbed from Lexington to Butler, in Bates County, and procured ties sufficient for its line as far south as Pleasant Hill, and having also done some dredging, and being indebted to contractors for such work and materials—its liability therefor being evidenced by two notes, one held by Monroe & Co. for $10,682.74, and the other by Lawrence Dean for $2,000, each dated October 12, 1871, and bearing Kennedy v. St. Paul & P. R. R. Co. 2 Dill. interest at 10 per cent per annum from 448; S. C. 5 Dill. 519; Miltonberger v. Logans-date-the company, January 16, 1872, conport, C. & S. W. R. Co. 106 U. S. 286 (27:117); veyed its road, together with all its rights,

[650]

[651]

[652]

"And it is further ordered, adjudged and
On the 20th of February, 1877, Chapman, decreed that such certificates or debentures shall
trustee in the deed of January 16, 1872, sold be and they are hereby adjudged to be a lien
the mortgaged premises at public auction, after for the principal and interest thereof prior to
the required notice, to satisfy the debts secured all other liens or claims whatsoever upon that
by that deed, and Henry L. Newman, hold-portion of said defendant's railroad before men-
ing the note given to Monroe & Co., as trustee
for the benefit of himself and one Waddell,
became the purchaser. Chapman conveyed
to Newman, as trustee, the deed being ac-
knowledged August 22, 1877, and filed for rec-
ord August 5, 1878.

[653]

"It is further understood and agreed that when said quitclaim deed shall be delivered in escrow to said Noble that the note mentioned and described in the said trust deed to Moses Chapman, under which said Newman's claim arises, shall be delivered to said Noble also in escrow, and said trust deed shall also be delivered to him if in possession of parties, if not, as soon as practicable; and on the compliance of the Receiver with his part of this agreement said note and said trust deed shall be delivered to him, with the said quitclaim deed, as muniments of his title and as vouchers, said note to be canceled upon payment of said $17,750.00."

a few days after the order was made, namely, | said portion of said road, and is to constitute on March 12, 1880, Smith, "as Receiver of the no personal or individual claim against said Burlington and Southwestern Railway Com- Elijah Smith. pany, acting under authority of the Circuit Court of the United States," entered into a written agreement with Newman, representing himself and Waddell, in which it was stipulated, among other things: 1. That Newman should, by quitclaim deed, properly acknowledged and executed within twenty days, and placed in the hands of J. W. Noble in escrow, convey all the right, title and interest then held by or ves[654] ted in him "in and to the railroad and property, appurtenances and franchises of what was formerly known as the Lexington, Lake and Gulf Railroad Company, extending southwardly from the Missouri River, at Lexington, Missouri, by the way of Pleasant Hill, to a point south of Butler;" such conveyance to include all the rights and interest acquired by Newman and Waddell under the trust deed to Chapman, of January 16, 1872, and the sale made under it on the 20th of February, 1877. 2. That said Receiver be substituted to all claims of every kind held by Newman and Waddell against the Lexington, Lake and Gulf Railroad Company. This agreement contained the following provisions:

[655]

So far as the record discloses, all the stipulations in this agreement relating to Newman and Waddell were complied with by them. The required quitclaim deed was executed, and the same, together with said notes and trust deed, were placed in the hands of Noble, in escrow, and are now held by him in that way. On the 30th of November, 1880, the Linneus Branch road, including said property, franchises, rights, and premises of the Lexington, Lake and Gulf Railroad Company was sold, in gross, by a special master in the foreclosure suit, Elijah Smith, as trustee for the bondholders, becoming the purchaser, at the price of $1,000,000, paid entirely in mortgage bonds held by those whom he represented.

"And in consideration of the premises, said
party of the first part, as receiver, agrees to pay
said Newman, out of the moneys coming into
his hands from that part of said railroad here-
inbefore mentioned, or from the sale of re-
ceiver's certificates lately authorized by said
court to be issued by said Receiver, or from The present suit was commenced by petition
any earnings from that portion of said road, or of intervention filed in the foreclosure suit,
arising from the sale thereof under the decree March 7, 1881, by Newman, as trustee for him-
of said court, and within nine months from the self and Waddell. After referring to the efforts
eighteenth day of December, 1879, the sum of of Smith to have his purchase confirmed, he
seventeen thousand seven hundred and fifty prays that said contract and agreement be en-
dollars, it being recognized and admitted in forced, and that before any order is made con-
this settlement that the claim of said Newman firming and approving the sale, the Receiver
to the above amount is a first and prior lien be required to pay out of the proceeds of sale
upon said portion of said railroad, paramount the sum of $17,750, with interest at the rate of
to the mortgage to said Farmers' Loan and 6 per cent per annum, since September 18,
Trust Company; but this agreement is not to 1880, and for such other and further relief as
bind the Receiver in reference to any other may be just and proper. To this petition of
property or money coming into his hands, ex- intervention the complainants in the fore-
cept from or pertaining to that part of the prop-closure suit filed an answer, and subsequently,
erty aforesaid acquired from the Lexington,
Lake and Gulf Railroad Company.

"And it is further mutually agreed by and between the parties hereto that time is of the essence of this contract, and that in case said second party shall fail to comply on his part with the stipulations hereof said first party may have the right to have the same enforced specifically by the court in which said cause is pending or, at his option, declare this agreement absolutely null and void; and if said first party shall fail within said nine months from December 18, 1879, to pay said $17,750, said second party may apply to said court for the enforcement thereof, or, at his option, he may abrogate or abandon the same absolutely, and his rights in that event shall be the same as if this contract had not been made.

"And it is distinctly understood that this agreement is made by said Receiver under an order of said court, and refers to no other than said property before mentioned, and is to be paid out of no funds except such as arise from

July 5, 1881, obtained an order confirming the
sales, approving the deed to Smith as trustee,
which the master had previously submitted
with his report of sale, and directing that the
property be placed in his possession.

This order, however, contained the follow-
ing provision: "But the said deed of convey.
ance and the delivery of said property to said
grantee shall not be taken to affect any claim,
right, interest in or lien upon or to said prop-
erty sold and conveyed by said master's deed
not pending in this court, or in any state court
by leave of this court, but that said claim, right,
interest, or lien are hereby reserved, subject to
further order and decrees of this court, and the
power to make further orders, decrees and di-
rections in reference to said property in this
cause is hereby expressly reserved by the
court."

On the 9th of December, 1881, an amended answer was filed by the Farmers' Loan and Trust Company, and Smith, as receiver. The cause having been heard, a final decree was rendered whereby it was ordered and adjudged

[656]

[657]

that "there is justly due the intervener named | terms as he deemed best for the interests of the
the sum of seventeen thousand seven hundred parties concerned, "any rights or title so ac-
and fifty dollars, with interest thereon from the quired to be conveyed to him as receiver, for
20th day of November, A. D. 1880, at the rate the benefit of the parties in interest herein," the
of six per centum per annum until paid, and that parties here referred to being the holders of
said claim to the amount aforesaid was author- bonds under the mortgage for $1,600,000 and
ized by this court to be incurred by its Receiver the trustees in that mortgage.
in this cause and was by him so incurred, and
was to have been provided for and paid out of
the proceeds of sale of that railroad and prop-
erty described in the mortgage made to com-
plainants by the defendant, the Burlington and
Southwestern Railway Company, and which
was sold on the 30th day of November, 1880,
by order of this court, and the sale whereof was
conditionally confirmed on July 5, 1881; that
said claim not having been paid or provided for,
said sale of said railroad and property sold as
aforesaid, as well as the confirmation thereof,
is hereby set aside and for naught held, and said
Receiver of this court in this cause is hereby
ordered to take exclusive possession of said
railroad and property, with any additions or
appurtenances thereto absolutely necessary to
regain his original possession of all said prop-
erty in all things the same and with all the
powers in him as said Receiver heretofore
vested, at and upon the expiration of ninety (90)
days from the date of this decree, unless within
said last named period of ninety days the claim
of said intervener in the sum hereinbefore de-
termined be paid with interest and the costs
of this proceeding to said H. L. Newman,
trustee as aforesaid, by said Elijah Smith, as
trustee for bondholders, purchaser at said sale;
and if said claim be paid as aforesaid, then said
sale shall stand and said order of confirmation
be final as to said demand."

From that decree the present appeal is prosecuted.

From this history of the proceedings in the court below it satisfactorily appears:

1. That Newman, as trustee, had a lien upon the road south of Lexington-the same leased by the Lexington, Lake and Gulf Railway Company to the Burlington and Southwestern Railway Company for the benefit of the Linneus Branch of the latter corporation-prior and paramount to that created by the mortgage for $1,600,000.

4. That, under the authority of this order, the Receiver made, with Newman, as trustee, the agreement of March 12, 1880, whereby the latter agreed to convey to the former, as receiver, all bis right, title and interest in the leased premises, including any rights acquired under Chapman's sale in virtue of the trust deed of January 16, 1872; and whereby, also, the Receiver agreed to pay to Newman the sum of $17,750 within nine months from December 18, 1879, such payment to be made "out of any money coming into his hands from that part of said railroad herein before mentioned, or from the sale of receiver's certificates [then] lately authorized by said court to be issued by said Receiver, or from earnings from that portion of said road, or arising from the sale thereof under the decree of said court," such agreement "not to bind the Receiver in reference to any other property or money coming into his hands except from or pertaining to that part of the property aforesaid acquired from the Lexington, Lake and Gulf Railroad Company."

It is not disputed that the order authorizing the Receiver to acquire by purchase for the benefit of the parties interested in the foreclosure suit, any adverse lien upon the property decreed to be sold, was one that the court had power to make; nor is it claimed that the agreement made with Newman was beyond the authority conferred upon the Receiver by its order. And it is clear that the agreement gave Newman the right to be paid out of any proceeds arising from the sale of that part of the Linneus Branch covered by the deed of trust to Chapman and by the quitclaim to the Receiver. But, manifestly, this agreement, fairly interpreted, imposed upon the Receiver and the parties interested in the foreclosure suit the duty of obtaining trom the court (as might readily have been done) such modification of the decree of sale, passed in 1876, as would enable 2. That after the court passed the decree of the court and the parties to know how much foreclosure of May 19, 1876, the parties deemed was realized from a sale of that part of the it important to their interests that the road road upon which Newman's prior lien rested. south of Lexington be completed for traffic That result could have been reached only by before any sale took place under that decree, selling that part separately, or by selling the and to that end the Receiver, with their know- mortgage property subject to that lien. Instead [658] ledge and consent, obtained leave to borrow of having the sale made in one or the other of the money upon certificates, which should be a forms suggested, Smith, as agent for the mortlien, prior to all others, upon that portion of the gage trustees and bondholders-having induced Burlington and Southwestern Railway ac- Newman to surrender his claim and title-bid quired for its Linneus Branch under the con- in the property, as an entirety, including the tract of lease with the Lexington, Lake and leased premises upon which Newman had a parGulf Railroad Company of February, 1872, but amount lien, for $1,000,000, payable in mortupon no other property or funds in the posses-gage bonds. It is now said that there are no prosion of the Receiver.

3. That by the same order the Receiver was directed to settle and adjust, by payment or otherwise, any outstanding claims against the lessor company which might seem to be prior in right to the claims of the lessee company under said contract of lease, and to purchase in any outstanding or adverse lien or title to anv portion or all of the property, upon such

ceeds or moneys arising from the leased prem-
ises which can be awarded to Newman under
his agreement with the Receiver. In conform-
ity with that agreement he deposited with Mr.
Noble, not only his quitclaim deed to the Re-
ceiver, but the Chapman trust deed and the
note secured by it; and yet, according to the
contention of the appellants, his only remedy
is a separate, independent suit, asserting his

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