real rights of these parties, and that the husband alone might, notwithstanding, be seized of a fee. A wife may, without the intervention of a court, convey away her estate to a stranger or to her husband by circuity; but chancery will scrutinize the act closely, to see that she has not been circumvented, coerced, defrauded, or unduly influenced. On the 28th May, 1790, husband and wife, for a nominal consideration, conveyed the estate of the wife to G. F., who, by deed dated the next day, also for a nominal consideration, conveyed the property to the husband in fee. Deed recorded. Afterwards the husband alone made long leases, still living in harmony with his wife, and she, with others, executed certain articles dated in Feb. 1809, in which there was a recital and declaration recognizing the fee in the husband; there was nothing to show but the act was a free will offering by the wife; the transaction had been suffered to stand for about forty-five years unquestioned and undisturbed; and both husband and wife were dead: Held, a valid deed. PRIOR to the twenty-eighth day of May, one thousand seven hundred and ninety, Mrs. Catharine Harsen, the wife of Jacob Harsen, was seized in fee of certain real estate. 1842. MERIAM v. HARSEN. April 28 29: May 3, 4, 1842. The bill in this suit was filed to set aside a deed of it made the twenty-eighth day of May in the said year one Deed. thousand seven hundred and ninety, (for the consideration Acknowof five shillings,) by the said Jacob and Catharine Harsen ledgment. Statute. to Gabriel Furman and, in that way, also, destroy a deed Estoppel. dated the day after (the twenty-ninth day of May, 1790,) Husband whereby the said Gabriel Furman, in consideration of ten and wife. shillings, reconveyed to the husband only, Jacob Harsen, the said property in fee. The principal grounds taken against the first mentioned deed from the said Jacob Harsen and Catharine his wife, were, that she, Catharine, had not properly acknowledged it under the then statute; and, that her genuine signature was not to it; or, if to it, that some fraudulent means had been used to obtain it. There was likewise a seeming attempt to affect the will of Jacob Harsen. It was also made a strong point in the suit that Mrs. Catharine Harsen could not, by the above means, during coverture and for a mere nominal or no consideration, thus make, in effect, a gift of her estate to her husband. The certificate of acknowledgment upon the deed of the twenty-eighth day of May, one thousand seven huudred and ninety, (executed by Catharine Harsen and her husband,) was in these words: "Be it remembered, that on the twenty-ninth day of May, in the year of our Lord one thou 1842. MERIAM V. HARSEN. sand seven hundred and ninety, before me, John Ray, one of the masters in chancery for the State of New York, personally appeared Jacob Harsen and Catharine his wife; and the said Jacob Harsen acknowledged he sealed and delivered the within written indenture as his voluntary act and deed for the uses and purposes within mentioned; and the said Catharine, being examined by me privately and apart from her husband, acknowledged she executed the same without any fear, threat or compulsion of her husband; and I having perused the said indenture and finding therein no material errors or interlineations (except the words 'feet six' on the fifty-eighth line, same page interlined) do allow the same to be recorded." "JOHN RAY." This deed was recorded the twenty-fourth day of May, one thousand seven hundred and ninety. Catharine Harsen died on the eighth day of May, in the year one thousand eight hundred and thirty-five; and her husband Jacob Harsen departed this life on the twenty-fourty day of July, in the same year. The bill insisted that the said Catharine Harsen never acknowledged she executed the said deed freely, as was required by the then law of the state. A partition suit, in which the said Jacob Harsen and Catharine his wife were parties, was attempted to be made to bear upon the present proceedings, so far as to raise a presumption of understood ownership in Mrs. Harsen, after the date of the said deed to Gabriel Furman; and certain articles of agreement, having reference to the partition property, was used to negative the presumption of her after ownership. All this sufficiently appears in the opinion of the court. A mass of testimony was taken in the suit, but, as the only two interesting points were, as to the sufficiency of the acknowledgment under the then statute, and how far the wife, Catharine, could thus pass over her estate to her husband, it is deemed unnecessary here to do more than merely (with the above explanation) give the opinion of the court. Mr. W. S. Johnson, for the complainant. Mr. George Wood, for the defendants whose interests were identified with those of the complainant. Mr. J. W. Gerard, for the defendant Jacob Harsen. THE VICE-CHANCELLOR.-The first question to be considered is, as to the sufficiency of the acknowledgment by Catherine Harsen, the wife, of the deed of conveyance from herself and husband to Gabriel Furman, of the twentyeighth day of May, one thousand seven hundred and ninety, to pass her estate ? The statute of one thousand seven hundred and eightyeight, then in force, (2 Greenl. 99,) declares, that no estate of a feme covert shall thenceforth pass by her deed, without a previous acknowledgment by her, on a private examination apart from her husband, that she executed such deed freely, without any fear or compulsion of her husband, endorsed on the deed conveying the same, and signed by the person before whom such acknowledgment shall be made. The certificate of John Ray, a master in chancery, endorsed on this deed, states, that, on the twenty-ninth day of May, one thousand seven hundred and ninety, the parties personally appeared before him, Jacob Harsen, (the hus-band,) acknowledged that he sealed and delivered the instrument as his voluntary act and deed for the uses and purposes therein mentioned, and the said Catherine (the wife) being examined by him privately apart from her husband, acknowledged she executed the same without any fear, threat or compulsion of her husband; and that he (the master) having perused the deed, and finding therein no material erasures or interlineations (except one noted) did allow the same to be recorded; and the deed was accordingly put on record in the month of August following. The omission of the word "freely" in the master's certificate of acknowledgment presents the only objection to it. Every thing else is there that the then statute required. VOL. IV.-10 1842. MERIAM V. HARSEN. April 17, 1843. 1842. MERIAM V. HARSEN. The private examination of the wife-her confession that she executed the deed without any fear or compulsion of her husband, and, moreover, without a threat of any sort from him and all this endorsed on the deed and signed by the master, appears. But it does not appear that she was asked whether she executed the deed "freely;" or if she was, and so acknowledged, the master has omitted to certify it in terms. Is this omission material? In the absence of fear, threat or compulsion, must it not be implied that it was a free and voluntary act within the meaning of the statute? The statute prescribed what the certificate should purport-not the form of it, nor the exact words it should contain; and an act done without fear, threat or compulsion seems to carry with it freedom from restraint, coercion or undue influence. How far a married woman may be influenced by motives of generosity or affection towards her husband, or by a desire to promote his interests in parting with or incumbering her real estate for his benefit, is not the question under this provision in our statutes. Such motives and inducements may exist, and probably tend to actuate married women in a great majority of instances where they consent to dispose of or incumber their estates, or are called upon to join with their husbands in executing conveyances; but, so long as it is the policy of the law to allow them to do so at all, the law must admit such motives or inducements to prevail to a considerable extent. I can hardly think it was or is the object of the statute to guard women against the influence of such generous motives, because they are not thereby necessarily disqualified as free agents from exercising the power of refusal, when they are not perfectly satisfied that it will be for their own or their husband's interest to dispose of their property by deed. The word freely, therefore, as used in the statute, must have reference to something else than this natural or habitual influence which a husband may be permitted to acquire over his wife, and against which she stands in need of no protection. It must have reference to that which amounts to restraint upon a wife's actions-to coercion by undue means-to over persuasion, or some im proper influence brought to bear upon her mind, which leaves her no longer the freedom to act as she may think proper; and the absence of all such improper means may well enough be inferred when a wife, removed from the immediate presence of her husband, and having an opportunity to express a dissent, or having a reluctance to join in the deed, is, not only silent, but acknowledges she is laboring under no fear, nor influenced by any threat or compulsion. Our courts have not been strict in requiring a very close adherence to the words of the statute in certificates of acknowledgment of deeds and mortgages, lest it might involve much litigation and tend to disturb or unsettle many titles. They have been disposed to take some things for granted which did not appear, and to allow what seemed to have grown into a usage or settled practice of judges and other officers authorized to perform this duty to have great weight in giving effect to and fixing the construction of the statute; and where there has been a substantial compliance with its form, it has been held sufficient: Troup v. Haight, Hopk. R. 239; Jackson v. Gumaer, 2 Cowen, 552; Thurman v. Camerra, 24 Wend. 87. There are a great number of deeds on record where the word "freely" is omitted in the certificate of acknowledgment. Some hundred of instances are produced in evidence in this cause, to show the practical construction which has been given to the statutes, in former times, by judges of eminence in their day, and men of great experience and of correct business habits, who were then entrusted with the performance of this duty. Besides, it is a fair presumption that those who have been appointed to guard the rights of married women against the improper conduct of their husbands, when they come to acknowledge deeds, and which acknowledgments are essential to the validity and effect of the instruments, have performed that duty honestly and correctly, by requiring such an acknowledgment as the statute requires, although in the certificate endorsed a word may be wanting. In Jackson v. Gilchrist, 15 Johns. R. 89. Mr. Justice Thompson, in delivering an opinion, held, that the court would presume, after a considerable lapse of time, that the officer taking an acknowledgment of 1842. MERIAM v. HARSEN. |