Defective acknowledgments: Curative acts. This is a suit by Mrs. Johnson, the appellant, for assignment of dower in lands which she had joined with her husband in conveying to one Wyley in 1859. The conveyance was in form a warranty deed in which the wife joined as a grantor. It was recorded soon after its execution. There is no clause relinquishing dower -in the body of the deed, nor any mention of it in the officer’s certificate of acknowledgment. It is conceded that the acknowledgment was not in the form prescribed by statute for the relinquishment of dower, and that the widow is not barred of her right according to the previous decisions of this court, (Myers v. Gossett, 38 Ark., 377, and cases cited,) unless the subsequently passed curative acts have made the conveyance effective for that purpose. The court decreed against the widow in so far as the deed controls, and the effect of the statutes referred to, is the only question we need consider. The first of these provisions is the sixth section of the act of March 8th, 1883, entitled, “An Act for the better quieting of titles,” which was substantially re-enacted under the same title in 1885, (see Acts of 1885, p. 190,) and is as follows: “All deeds and other conveyances recorded prior to the first day of January, 1883, purporting to have been acknowledged before any officer, and which have not heretofore been invalidated by any judicial proceeding, shall be held valid to pass the estate which such conveyances purport to transfer, although such acknowledgment may have been on any account defective.” The second is the act of March 14th, 1883, entitled: “An Act to cure defective acknowledgments,” viz: “All conveyances and other instruments of writing authorized by law to be recorded, or which have been heretofore recorded in any county of this State, the proof of the execution whereof is insufficient because the officer certifying such execution omitted any words in his certificate, **'*'* shall be valid and binding as though the certificate of acknowedgment or proof of execution was in due form.”
Relinquishment of dower.
Application of curative acts. In the case of Johnson v. Richardson, 44 Ark., 365, we ruled that these provisions of the statute validated a previous-1 y defective acknowledgment of a relinquishment of dower,, and that no vested right was disturbed thereby. In that case,, however, the certificate of the officer showed that the wife had made an ineffectual effort to relinquish dower, and the curative acts were permitted to supply the defect in the certificate; while here, no mention is made of dower either in the deed or in the officers certificate of acknowledgment, and the question is, is the acknowledgment “defective” within the meaning of the first act, or “insufficient because the officer certifying such execution omitted any words in his certificate,” within the meaning of the second? The officer certifies that the husband acknowledged the instrument “to' be his act and deed and that the wife being privily examined separate and apart from her said husband, declared that she did freely and willingly sign and deliver said * * * without any fear or compulsion from her said husband as her act and deed.” The certificate is imperfect as to both parties inasmuch as it omits all mention of the “purposes and'consideration” for which the deed was executed. Little v. Dodge, 32 Ark., 453. With the addition of these words in their proper connection, the acknowledgment would be good as that of grantors to the fee. It is not pretended that the curative statutes do not supply them, but the contention is, that their operation should slop there and leave the certificate as in perfect form for the conveyance of the fee by both husband and wife. The argument is, that as the wife has not manifested an intent to relinquish dower, there 'is no defect in that respect to be cured; and not being bound by the covenants in the deed on account of her coverture, she is not barred of her recovery of dower. If there had been a clause in the deed expressing the purpose thereby to relinquish dower, unquestionably the effect of the statute would be to supply any defect in the acknowledgment which prevented the deed from having that effect; otherwise the clearly pressed intent of the parties to vest an estate in their grantee, freed from the wife's contingent right of dower, would be feated by the lack of form in the ceremony of execution, which was the very consummation the legislature intended to prevent. But, when the acknowledgment is in form for that purpose, the fact that the wife joins in the deed with her band, as grantor, is sufficient to bar her dower even though there is no clause in the deed expressly relinquishing it. It was so determined in Dutton v. Stewart, 41 Ark., 101. II she joins with her husband in the conveyance as a grantor, her estate passes; if she has no estate, but only the ity of dower, for what purpose, asks Judge English in case last cited, does she join in granting the estate except tc relinquish her right to dower? The deed is sufficient to pass her title, right or interest whatever it may be, provided only the requirements of the statute as to the acknowledgment are observed. A deed of general warranty purports to convey enunciate Relinquish- ment of claw-er. Applica- tion of cura- tive acts. which the conveyance purports to transfer does not "pass to use the language of the statute merely because the officer's certificate of ac knowledgment is not in the form prescribed by the statute then the acknowledgment is on that account defective; and "the proof of the execution is insufficient because the office~ certifying to it has omitted words" which were necessary ir the acknowledgment to give full legal effect to the terms o the conveyance. The application of the statute has hereto fore been made only to obvious omissions of words from th certificate of acknowledgment; and particular instances o this nature may have given rise to the legislation in question but the terms employed are comprehensive and enunciate general rule applicable to all cases in which the acknowledgment is insufficient to give full legal effect to the terms of the conveyance.
The evil of the one case is as great as that of the other. As was said by the supreme court of Ohio in Goshorn v. Purcell, 11 Ohio St., 641, in construing a statute which authorized the courts to correct “errors, defects and mistakes” in the deeds of married women, “we should look rather to the principle of justice and right which the rule was intended to enforce by an application to past transactions, than the particular instances to which a like application had been made, though historically connected with the adoption of the rule.” And in that case it was said that the statute would apply to a conveyance perfect in form if it did not comply with the obvious intent of the parties. Our statutes were designed to operate upon the ceremony of the execution of conveyances — a subject wholly within the control of the legislature; and, as was said in Mrs. Richardson’s case, supra, the power which prescribed the form to be observed in the execution of a conveyance has said that a non-compliance with it shall be excused in order that the contract made by the parties shall have effect according to its purport. If that effect is given to the conveyance made by Mrs. Johnson in this case, it will bar her right of dower as effectually as though the officer had certified that upon privy examination she had acknowledged that she had signed the relinquishment of her dower for the purpose set forth in the deed.
The court did not err, therefore, in refusing the prayer of the complaint and the decree is affirmed.