Robert Trimble

“ Courts of justice are not obliged to modify the propositions submitted by counsel, so as to make them fit the case. If they do not fit, that is enough to authorize their rejection. We have already said, the evidence, taken all together, was sufficient to prove title in the lessors of the plaintiff. If any part of it was incomplete, the Court might, on a general motion to exclude the whole, have excluded such parts; but the Court was not obliged to do so. There is therefore no error in the decision of the Circuit Court, overruling the motion of the defendants ”

“ We now proceed to an examination of the questions arising out of the instructions given to the jury, on the motion of the plaintiffs, in relation to the deed of James Elliott and Sarah G. Elliott his wife, to Benjamin Elliott; set up by the defendants in their defence.
The general question involved in the first instruction, is, can the privy examination, and acknowledgment of a deed, by a feme covert so as to pass or convey her estate, be legally proved by parol testimony? We hold that they cannot.
By the principles of the common law, a married woman can, in general, do no act to bind her ”

“ No such supervising and controlling power can result to the Court, from the general relations which exist between a Court and its clerk; for in this case, the statutes confer upon the clerk, in his office, a distinct, independent, personal authority, to be exercised by him upon his own judgment and responsibility. We think, therefore, with the Circuit Court that the County Court had no jurisdiction or authority to order the after certificate of Mrs. Elliott's privy examination to be made and recorded. ”

“ A controversy had arisen, or was expected to arise, between the heirs of Mrs. Elliott, and the defendants, concerning the validity of the deed of Mrs. Elliott, made while she was a feme covert. But it does not appear, that any controversy had arisen, or was expected to arise, about who were her heirs. The lis mota, if it existed, was not, who were heirs, but, whether Mrs. Elliott's deed made a good title against the heirs, whoever they might be. ”

“ It is by construction of these last recited laws, that the clerks are held, in Kentucky, to be authorized to take the acknowledgments and privy examinations of femes coverts, in all cases of deeds made by them and their husbands. ”