Roger B. Taney

“ Its true reading is, that the justice certifies his having examined the wives separate and apart from their husbands; and, on that examination, the wives, thus being separate and apart from their husbands, made the acknowledgment. Privy examinations in court and in the country have been long practised. The terms are technical. It is against the influence of the husband that the wife is protected; and an examination is privy or private, within the statute, when he is not present. The casual presence of others would not vitiate it ”

“ It is a general principle of American law, that all deeds of married women, without a privy examination, are void; 2 Lomax's Dig. 18; and that all acts not conformable to acts of Assembly are void; ibid. 52. Some States provide, simply, that there shall be a private examination upon the execution of a deed by a feme covert, and leave every thing else to the integrity and intelligence of the offieers authorized to conduct it ”

“ The claim of title set up by two of these females, now that they are married to other husbands, is sustained by the most refined and technical reasoning. The printed argument of Mr. Johnston affords a specimen of this.
It is not denied, that, to bind a married woman by a deed executed with her husband during coverture, she must have acknowledged it in substantial conformity with the terms of the statute. The requisites are,--
1. A previous acknowledgment made by her, on a private examination, apart from her husband. ”

“ It does not appear from the certificate in this case, that the acknowledgment of the married women was taken on a private examination, which is required by the statute.
In the first sentence of the certificate, the husbands and their wives all appear and act together; in the second, the wives all appear and act together. ”

“ A lease, which is void as to a remainder man, cannot be set up as a defence to an action of ejectment brought by him, although it be proved that he received rent, or suffered the tenant to make improvements. ”

“ The law will not put them in the predicament of saving their private rights by faithlessness to their trust, or losing their private rights by a faithful performance of the duties of executorship or administration. ”

“ The deed was acknowledged by them, and their relinquishment made privily, with full explanation, and the deed was of record.
2. The tenement on the premises was destroyed by fire, and they, free from disability, stood by and permitted the grantees of their husbands and themselves to erect buildings thereon, at a cost far exceeding the purchase-money, without interposing, by any warning that the title made was objected to and its confirmation denied; such acts, on the part of persons free from disability, ought to be regarded as confirmatory of a defective bon a fide conveyance ”

“ The deed, also, is inoperative as to their title to the land. In the premises of this instrument, it is stated to be the indenture of their respective husbands in right of their wives, of the one part, and of the grantees, of the other part,-the husbands and the grantees being specifically named ”

“ Crittenden, for the defendants in error.
Mr. Mason; for the plaintiffs in error, stated the case, and then proceeded.
I. The title, bond, and deed were admissible in evidence. The common law imparted to the husband, as a necessary incident to the seisin he acquired of the wife's freehold estate by the marriage, a power, by alienation, of converting her interest in it to a mere right. Hence a conveyance by him of the fee operated a discontinuance, and ejectment would not lie; although, by the statute of 32 Hen. 8, ch. 28, § 6, explained by the statute of 34 and 35 Hen. ”

“ That on the 14th day of September, 1835, on the delivery of said deed, the said Holton and Barlow executed, acknowledged, and delivered to the said heirs and their several husbands a deed of mortgage on said land, to secure the payment of said notes according to said contract, and the said notes and mortgages were accepted by said heirs and their husbands. ”