Constantine v. Van Winkle.

loke and Ann his wife, to acknowledge this indenture, to be their acts and deed this 19th of February, 1711. Attested per me, Jno. Blanchard." The deed was held to be valid, and the certificate or memorandum sufficient proof of its execution, especially under the colonial act of 1771, notwithstanding the defect in form. The above form certainly cannot claim to be any higher or more satisfactory evidence of the execution of a deed, than proof by the subscribing witnesses. And even supposing, in this case, there had been an acknowledgment of Jane Van Winkle, before a competent officer, without a private examination, and that a certificate to that effect had been endorsed on the deed-which it is admitted, by the counsel for the defendant in error, would have been a full compliance with the usage of the colony, prior to the act of 1771-would such certificate be a more safe and reliable medium of proof than the testimony of the subscribing witnesses? Or could the court, upon such certificate, come to a more satisfactory conclusion as to the free consent of the wife? I think not. For, in the examination of the subscribing witnesses, all the facts and circumstances attending the execution could be inquired into, and any coercion of the husband most probably detected. No greater security, at best, would be likely to result from a certificate of the simple fact of acknowledgment. There is, I believe, no dispute, that deeds of persons other than married women could be proved without acknowledgment; and so long as the private examination of the wife was dispensed with and deemed to be unnecessary, I can see no good reason why her estate should not pass in the same manner as that of her husband.

From all the knowledge or information, therefore, which I have been able to obtain on the subject, it seems clear to my mind that the mode of proving the execution of deeds, as well of femes covert as other persons, by the subscribing witnesses, prevailed in the colony without interruption, at least from the repeal of the act of 1691, until the year 1771; and the better evidence seems to be that such was the only mode in use previous to the charter of liberties in 1683. This mode, certainly, as well as others, is recognized by the act of 1771 as "an ancient

Constantine v. Van Winkle.

practice" and is equally entitled to be upheld. The present case is also analogous to Lloyd v. Taylor, (1 Dall. Rep. 17.) There the question arose whether the deed under which the defendant claimed title, having been executed by a feme covert in conjunction with her husband, without acknowledgment, was valid under the colonial law of Pennsylvania; and, in answer to the objection raised by counsel, the language of the case is as follows: "But it appearing in evidence that it had been the constant usage of the province formerly for femes covert to convey their estates in this manner, without an acknowledgment or separate examination; and that there were a great number of valuable estates held under such titles, which it would be dangerous to impeach at this time of day, the court gave a charge to the jury in favor of the defendants, founded on the maxim communis error facit jus." I consider this decision entitled to great weight, and in all respects applicable to the present case.

I am aware that, accustomed as most of us are to our present statute mode of conveyancing, we are at first sight led to believe that all conveyances of married women are defective without a proper acknowledgment before a public officer. But when we look at the situation of the colony in its early settlement, and consider the sparseness of its population, the cheapness of land, and the defect of legal learning among its inhabitants, besides the inconvenience of access to public officers competent to perform the duties now required in this respect, much of the difficulty disappears, and we can easily account for the loose, and, to us, unsatisfactory mode of conveying estates which then prevailed. Were we required to hold the same strictness in relation to conveyances then made, as to those executed under our present statute regulations, interminable litigation would arise, and great injustice would be done to the holders of estates under such titles; in fact, there would be no end to the hardships and injustice growing out of such a state of things. Lands which have received all and even twice their value from improvements made under such titles, would be swept away from the present occupants, and the descendants of the grantors would in many instances receive the benefit, not only of the

Constantine v. Van Winkle.

full consideration of the original purchase, but of all the labor and earnings of succeeding generations.

From the best consideration I have been able to give the subject, I am of the opinion that the deed in question, if executed in good faith and for a valuable consideration, was valid, notwithstanding any want of acknowledgment; that the defendant below was entitled to prove the execution of the same by the subscribing witnesses, or any other competent evidence; and that any question of fact raised at the trial upon the insufficiency of the proof to establish the deed, should have been submitted to the jury.

Another objection is taken to the deed, viz., that it purports to convey only the life estate of John Van Winkle.

The deed purports to have been made between John Van Winkle of Saddle river, in the county of Bergen, in the eastern division of the province of New-Jersey, yeoman, and Jane his wife, of the first part, and Jacob Van Winkle of Ackqueckenong, in the county of Essex, in said eastern division, cordwainer, of the second part; and then goes on to witness, that the said John Van Winkle, (by and with the voluntary consent and good liking of Jane his said wife, testified by her being a party hereunto, and signing and sealing these presents,) for and in consideration of the sum of one hundred and fifteen pounds to him in hand paid, &c., hath granted, bargained, sold, released and confirmed, and by these presents doth grant, bargain, sell, release and confirm, unto the said Jacob Van Winkle, his heirs and assigns forever, lot No. 7, [being the premises in question,] together with all and singular the rights, liberties and privileges to the same belonging or in anywise appertaining, and also all the estate, right, title, interest, possession, claim and demand whatsoever, either in law or equity, of them the said John Van Winkle and Jane his wife, of, in or to any part or parcel thereof; with the usual habendum, to the said Jacob Van Winkle, his heirs and assigns forever.

Thus far, the grant, in terms, proceeds from John Van Winkle alone, notwithstanding Jane is a party to the deed, and by that means gives her voluntary consent to the acts of her hus

Constantine v. Van Winkle.

band; and did the grant end here, it might be very questionable whether the estate of the wife would pass under it, although such might have been the intention of the parties. But immediately after the habendum, under the separate grant of the husband, follows the joint grant of the parties of the first part, in the following words: "And the said John Van Winkle and Jane his said wife, for themselves, their heirs, executors and administrators, and for every of them, do grant and grant to and with him, the said Jacob Van Winkle, his heirs and assigns, that he, the said Jacob Van Winkle, shall and may at all times, and from time to time forever hereafter, peaceably and quietly have, hold, possess and enjoy the above granted lot of land and premises, without any let, suit, trouble, denial or interruption of them the said John Van Winkle and Jane his wife, their heirs or assigns, or any other person or persons claiming by, from or under them and any of them." Next follows the usual clause of warranty by John Van Winkle, and the deed purports to be subscribed, sealed and delivered, in the ordinary manner, in the presence of two attesting witnesses.

This second or joint grant of the husband and wife seems merely to come in aid of the first, and, I think, leaves no doubt of the intention of the wife to convey her estate. And "where there is sufficient matter to guide the intent of the party, in such manner that lay persons may understand it; or sufficient matter is contained in the deed to show the intent; there the deed, and the words therein, shall be taken so as to make the deed good rather than destroy it." (1 Shep. Touch. 253, note (1) Am. ed. of 1808.) Also, in construing a deed according to the intent, the construction must be upon the whole deed, and not one part taken and another left out; and a deed ought to be so expounded that all parts of it may stand together. (Id.; 2 Bl. Comm. 379.). It is true, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected. (2 Bl. Comm. 380.) But in this deed I can see no such repugnancy. All parts of it harmonize sufficiently, and apt words are used in the grant to pass the estate. I think also the deed imports a suffi

Downer v. Thompson.

cient consideration. It is true, the receipt of the money purports to have been by the husband alone. But to this I can see no particular objection, as the money would undoubtedly have passed into his hands under any circumstances; for he had the legal right to control it.

In my opinion, therefore, the judgment of the supreme court should be reversed, and a venire de novo awarded, with costs to abide the event.

ROOT and SCOTT, Senators, also delivered opinions in favor of reversing the judgment of the supreme court, holding that the deed to Jacob Van Winkle, of May 5th, 1760, was sufficient to convey all the estate of Jane Van Winkle, notwithstanding she had never acknowledged it.

On the question being put, "Shall this judgment be reversed?" all the members of the court present who heard the argument, twenty-one in number, voted for reversal.

Judgment reversed.

DOWNER vs. THOMPSON.

The plaintiff, having received an order from the defendant to forward two hundred and fifty barrels of cement, sent by a carrier two hundred and sixty barrels, which the defendant refused to receive, saying, among other things, that there was more than he had ordered, and that the quality was not good; whereupon the carrier took the cement away and stored it. Afterwards a letter was written to the plaintiff by the defendant, in which he placed his refusal to receive the cement on the sole ground that the quality was not good, but admitted that the order had been complied with as to the number of barrels. The plaintiff then brought an action for the value of the two hundred and fifty barrels of cement, declaring as for goods bargained and sold, and for goods sold and delivered; but he was nonsuited at the trial because the number of barrels ordered had been delivered to the carrier as part of a larger number, without being counted out or separated, and that therefore no sale had taken place. Held, that the nonsuit was erroneously granted, and that the case should have been submit.