dissented, and gave the following reasons :
I agree that a substantial compliance with the statute, in taking the acknowledgment and giving the certificate, is sufficient. In this case, I do not think there has been such a compliance. A married woman is incapable of conveying her lands, or releasing her dower, except as she is authorized by the statute, and then it must be done in the mode directed by the Legislature, and in no other. There are two sections of our statute which authorize a married woman to join in a conveyance with her husband. The first is the 17th section, which authorizes a married woman to join with her husband in conveying her fee simple interest in lands. The other is the 21st section, which authorizes her to release her dower. These sections require different examinations to be made by the officer, and different certificates to be given, in order to give effect to the act of the wife; and I conclude that the Legislature intended to make a substantial difference, or else both cases would have been provided for in the same section, and in the same language. It seems to me that the Legislature did intend that the acknowledgment should be taken with more care, and that the certificate should be in a different form in the one case than in the other. The first requires that the officer shall certify, “ that the contents were made known and explained to her.” The other only requires the officer to certify, “ that she was made acquainted with the contents thereof;” that the expressions, “ the contents were made known and explained to her,” and “ she was made acquainted with the contents,” are the same in substance, is undoubtedly true; but the addition of the words “ and explained to her,” which are required by the 17th section to be in the certificate, is something more, in substance. The officer is not only required to make known, but he must explain the contents of the deed. And there is a substantial reason for this. In the one case, she is conveying a present, substantial existing title; in the other, she is releasing an uncertain, contingent expectancy, which is no estate whatever in the land. Blain vs. Harrison, post. The form of the conveyance may be the same; the effect, however, is very different, and this is what the Legislature intended the officer should explain. It was not done in the present case. There is another reason for this difference, which will be alluded to hereafter.
In other respects these two sections materially differ in the certificate required, according to the object to be effected by the conveyance. The section authorizing the wife to convey her fee, provides that “if such woman shall, upon such examination, acknowledge such deed or conveyance to be her act and deed, that she executed the same voluntarily and freely, and without compulsion of her husband, and does not wish to retract the same” said judge, &c., shall certify “said acknowledgment.” Now, what is she to acknowledge ? First, that she executed the deed; second, that it was voluntary, and third, that she does not wish to retract. It seems to me clear that these three things are substantive requirements of the statute, and if they are not in the certificate there is a substantial omission. I do not say they must be there in the words of the statute, but something equivalent to each must be there, or the law has not been complied with. The first two are in the past tense, because they refer to the execution of the deed, which had been already done. The third is in the present tense, because it refers to the present condition of her mind, which it is deemed important to ascertain, and commemorate in the acknowledgment, which the statute requires shall set forth “ the examination and acknowledgment aforesaid.” This I understand to mean the substance of the whole acknowledgment. If the officer may omit one part, then he may another, and thus we may fritter away the whole statute. This is a statute loosening the securities of the common law, by which the wife’s estate was guarantied to her, and should not be extended beyond its manifest intent.
The other section, providing only for the release of dower, is different in form and substance, and less particular in its requirements. The Legislature, with good reason, considered the release of dower of less importance than the conveyance of her estate, and has required less solemnity and deliberation in the act. This last section provides, that ££ if she acknowledge that she executed the same, and relinquishes her dower in the lands and tenements therein mentioned, voluntarily and freely, and without the compulsion of her husband, such Judge,” &c., shall certify that ££ she acknowledged such deed as aforesaid.” In this certificate, the effect of the act, that is the release of dower, is mentioned, and there is nothing said about her wish to retract. Here we may see another reason why the officer is not required to explain the deed, for the very form of the examination and certificate explains to the woman that it is only her right of dower that she is parting with. The acknowledgment before us is precisely and technically in the form required by the statute, for the release of dower; and yet it is held sufficient to pass the wife’s estate- If the acknowledgments may he the same, why are these two sections so widely variant ? It is said that the object of the first section is, to prohibit the officer from making the certificate, when the wife volunteers the information that she then wished to retract, although she had previously executed the deed voluntarily. I would inquire whether the officer would be justified in making the certificate, in case of a release of dower, where the wife stated that, although she had voluntarily executed the deed, she had changed her mind, and then wished to retract, and that she appeared before the officer only through fear of her husband ? Such, I imagine, would not be held to be the law so long as we hold the deed inoperative as to the wife, until a voluntary acknowledgment and certificate are made. I believe the Legislature intended this additional circumspection and solemnity, in case of the conveyance of the wife’s estate, should be substantially observed. There is a reason for it, and I think the statute enjoins it. I do not think it necessary to go into an examination of the decisions of other Courts which may tend to support my view of the case, or to review those which are supposed to sanction a more loose construction. In none of them, as it seems to me, has the intention of the Legislature been so manifestly departed from, with such unerring lights to determine what that intention was. With consequences I have nothing to do, where I think the law is manifest. It may be, and I presume is most generally the case, that the insufficiency of acknowledgments are attributable to the ignorance or carelessness of the officer, rather than the unwillingness of the wife to part with her interest, and yet it may sometimes happen that the wife’s estate will be illegally and unjustly taken from her. Her inexperience in business, her desire for domestic peace, her liability to he persuaded by a misplaced confidence, her dependant position, her exposure to imposition, and the constraining influences with which she is surrounded, all conspire to render it peculiarly proper that both the Legislature and the Courts should protect her interests against deception or coercion.
In this very case it may not be improbable, that both Mrs. Lane and the officer supposed that she was only doing what she professed to do, that is, releasing her dower. In one of the tracts of land mentioned in the deed, she had but a dower interest, and as to that, the deed was effectual, hut as to the other, I think it was inoperative. This would give full effect to the acknowledgment, so far as it professed to operate, and makes it mean precisely what it says. I am of opinion that the judgment should be affirmed.