dissenting. — The original opinion of the majority, in this case, was based upon the points made by counsel in the canse; and. it held that the court could not correct the error in the deed. The following dissenting opinion was prepared to file in connection with that original opinion. The point that the acknowledgment was defective was never made by counsel, either in the court below, or in this court. The concluding paragraph of this dissenting opinion, presents my views upon that question. There is no controversy respecting the real facts of the case. In this opinion some of the- facts, omitted from the statement in the majority opinion, are- stated fully. The-facts are as follows: This is an action for-the recovery of real property, the east half pf the north east- quarter of section thirty-four, township seventy-eight, range two west. The land was entered by Peter Fryberger, May 22, 1839, who gave the same, by parol to his daughter, Bebecca Heaton, wife of Silas Heaton, prior to 1845, but did not convey the same to her till April 29th, 1853. The-defendant, who was a brother of Bebecca,purchased the land of Bebecca and Silas-. Heaton, and paid them therefor one hundred dollars, and at the same time they made to him a deed for it as follows: “This indenture made this 17th day of April, in the year 1845, between Silas H. Heaton, of the county of Muscatine and Iowa Territory of the first part and Moses Fryberger of the- county of Muscatine of the second part, witnesseth: That the said |party of the first part for and in consideration, etc., (being regular in form and with covenants of warranty, and concluding.) .In testimony whereof the said party of the first part Time- hereto set. their hands and seals on the day and year first above written.” This deed was duly signed and sealed by both Silas and Bebecca Heaton, and was also duly acknowledged by “ the persons whose names-are subscribed to the foregoing instrument as parties thereto,” and was also recorded the next day. Bebecca Heaton died in 185.7, and Silas Ii. died in 1869. Plaintiffs are their children, and claim the land as heirs of their mother.
The defendant, by answer, pleaded a general denial, and the statute of limitations, and for equitable defense set up a mistake in writing the- deed whereby the name of Bebecca Heaton *199was omitted from it. The testimony shows that the defendant was never a resident of.Iowa, but always of Ohio; that he took possession as owner of the .land directly after his purchase, began improvements thereon, and had occupied the same by his tenants by residence and cultivation of crops every year, and had paid taxes thereon up to the commencement of this action December 1,1869, claiming title thereto; that plaintiff’s ancestors lived near the land till they died, and never claimed any interest in it, but recognized it as defendant’s. There was a trial to the court, without á jury, the equitable defense was dismissed and judgment rendered for plaintiffs for possession) and for $373.35 damages. The defendant appeals. ■
The testimony in the case is all before us, and from it there is scarcely room for any reasonable doubt that the defendant purchased and paid for the land in controversy, and that it was the purpose and intent of both of the plaintiffs’ ancestors to convey'the same fully and absolutely to him, and that the name of Eebecca Heaton was omitted from the deed by reason of a mistake. The single question, therefore, presented upon the equitable defense, is, whether a court of equity, has the power to correct such a mistake in the deed of a married woman, made prior to the enactment of our statute, which declares that “a married woman may copvey her interest in real estate in the same manner as other persons.” (Eevision, § 2215). There is no controversy between counsel, respecting the sufficiency of the execution and acknowledgment of the deed by the wife, or that it would have conveyed the absolute title, fully and completely, if the name of the wife had been inserted in the deed immediately before or after the name of the husband.
At the common law, the legal existence' of the wife was so -completely merged in the husband as that she could make no contract, nor could she bind herself or property by any obligation. Hence her conveyance of her own real estate was absolutely void — a nullity. 'Under the influences of a higher civilization, the power or authority to convey with certain limitations and guards has been conferred upon the wife, and enlarged from time to time. Primarily, she was empowered *200to convey her real estate by a quasi judicial proceeding-, called a fine and recovery. In the states of this country, as a general rule, she was, by statute, empowered to convey by joining her husband in a deed, and acknowledging separate and apart from him, its execution to be her'free and voluntary act and deed. This was substantially the law in force here when the deed in controversy was executed, except that instead of joining her husband in a conveyance, it is provided that it shall be by deed “executed by herself and her husband.” Rev. St. 1843, ch. 54, §§ 24, 27 and 28.
s. conveyMonoi fao-u inentIedg It has been held with great uniformity and upon the soundest reasoning, that unless the deed was executed and acknowledged in the manner prescribed by statute, it did not convey her title or interest. Silliman v. Cummins, 13 Ohio, 116; McCann v. Edwards, 6 B. Mon., 208; Lane v. Dolick, 6 McLean, 200; Davis v. Bartholomew, 3 Ind., 485; Grove v. Zumbro, 14 Gratt, 501; Watson v. Bailey, 1 Binn., 470; Pierce v. Wanett, 6 Jones, (N. C.) 162; Stone v. Montgomery, 35 Miss., 83; Delassus v. Poston, 19 Mo., 425; Dewey v. Camgpau, 4 Mich., 565; Pratt v. Battels, 28 Vt., 685; Russell v. Rumsey, 35 Ills., 362; Lane v. Soulard, 15 Ills., 123; O’Ferrall v. Simplot, 4 G. 162; s c. 4 Iowa, 381. And with almost equal uniformity, and upon quite as cogent reasoning, it has been held that a failure to comply with the requirements of the statute, at least substantially, renders the deed inoperative as to the wife for any purpose, as well in equity as at law, and that it cannot be enforced as an agreement to convey, either as against her oilier heirs. Martin v. Dwelly, 6 Wend., 9; Wooden v. Morris, 2 Green’s Ch. 65; Butler v. Buckingham, 5 Day (Conn.) 492; Lane v. McKeen, 15 Maine, 304; King v. Mosely, 5 Ala., 610; Knowles v. McCamly, 10 Paige, Ch., 342. Where the wife had agreed to sell to one who took possession and then conveyed to another, the latter was required to convey to the former, and the note he g-ave to the wife ’in consideration for it was cancelled. Warner v. Sickles, Wright, (Ohio) 81; and, as respects the certificate of acknowledgment, it has been held, that if it was defective in form, it could not be corrected, *201even upon parol proof that the acknowledgment was in fact according to the statute. O'Ferrall v. Simplot, 4 Iowa, 381, supra, and cases therecited; and, in other cases it has been held that the certificate of the officer, of the acknowledgment is conclusive evidence of the facts it states. Baldwin v. Snowden, 11 Ohio St., 203; and again that it is only conclusive against a bona fide grantee. Louden v. Blythe, 3 Casey, 22; and also that it is only prima faeie true. Fleming v. Potter, 14 Ind., 486. And the deed of the wife is good if executed in the manner prescribed by statute, although no part of the consideration should go to her. McFerrin v. White, 6 Coldwell, 499; or, even if it is without consideration it- passes her title. Goundie v. Northampton Water Company, 7 Barr, 233.
Unless the deed contains such words as are necessary to pass the estate of the wife, it will not operate to convey her title or interest, even though she join in its execution and acknowledgment. McFarland v. Febiger, 7 Ohio, 194; Cincinnati v. Newell, 7 Ohio St. 37; Bruce v. Wood, 1 Mich. 542; Catlin v. Ware, 9 Mass. 218. And if she joins in- such deed which states that she relinquishes her right of dower, it will not affect her fee title therein.' Foster v. Dennison, 9 Ohio, 126; or her homestead right, Sharp v. Bailey, 14 Iowa, 387. See also, Mayo v. Feaster, 2 McCord, Ch. 137; Hughes v. Wilkinson, 21 Ala. 296; Payne v. Parker, 1 Fairf., (10 Me.) 178.
9.-: equianil wlfe.and And it has been a well settled rule under these statutes, that a mistake in the manner of the execution or acknowledging of deeds by the wife, cannot be corrected in equity. Martin v. Dwelly, 6 Wend. 9; Butler v. Buckingham, 5 Day, 492; Grapengether v. Fejervary, 9 Iowa, 163; Carr v. Williams, 10 Ohio, 305; McFarland v. Febiger, 7 Ohio, 194; Wilkinson v. Getty, 13 Iowa, 157. And this, for the plain reason that a mistake in the manner of executing or acknowledging a deed by a married woman, amounts to a failure to execute it at all. That is, unless she complies with the statute, she has not executed the deed, for she has no power or authority to execute it in any other way. A failure to *202execute a deed by a married woman on account of non-compliance with the' requirements of the statute, whether such failure occur by mistake or otherwise, is, in its legal effect, just like the failure of any other person to execute a conveyance. Suppose an adult male make an agreement in parol to execute a deed for certain real estate, and he takes his pen and prepares the instrument, but by mistake or oversight he fails to sign it, that is, to. execute it, could a court of equity correct this mistake of his, and create a conveyance which should bind him? Surely not; for he is not bound under his parol agreement, by reason of the statute of frauds, and he is not bound by his deed, for he has not executed it. And it makes nó difference whether his failure to execute it was the result of a mistake or a purpose. Until he does execute it, he is not bound by it. And a court of equity possesses no power to make a contract for him under the pretext of correcting a mistake, any more than it would under the pretext of correcting his purpose. Until he makes or executes a contract, he is not and cannot be bound by it. When he has executed it, a court of equity possesses plenary power to correct any errors or mistakes occurring therein.
It is upon this principle that courts of equity have ever refused to interfere and correct very manifest mistakes in the execution of conveyances by married women. They have, in substance, said, that a failure to comply with the mode prescribed by statute for the execution of such instruments by married women, whether it resulted from mistake, oversight, or purpose, was, in legal effect, a failure to execute it; and the instrument, not being executed by her, did not bind her, and 'there is no power in a court of equity to execute the contract for. her, or to compel her to execute one. She has power to execute it in a particular way, and until she does so execute it she has not executed it at all, and is not bound by it. But when she does execute it in the manner pointed out by statute, she is as effectually bound by it as an adult male. 'And, if in reducing the contract to writing, or in drawing it up, there has been a mistake, a court of equity possesses just as plenary ¡Dower to correct such mistake as it does to correct a mistake *203in any other contract executed by any other person having power to execute it. All valid contracts, made by persons having power to make them, stand, in this respect, upon the same looting, and the power of a court of equity to correct mistakes in any of them rests upon the same basis.
If, in' the case before us, the land had, by mistake, been described as the west half of the section, instead of the east half, the deed being otherwise complete, it seems to us there could be no reasonable doubt of either the power or the duty of a court of equity to correct the mistake. The right and duty of a court to correct the mistake in omitting the'name of the wife from the body of the deed, rests upon the same principle. The effect of either mistake is precisely the same, to-wit: no title passes to the grantee. The right to correct either mistake rests upon the most solid reason; and the duty to do it rests upon the most unquestionable equity. McGall v. McCall, 3 Day, 402.
There are no cases which have fallen under our observation, that are in direct conflict with the foregoing views, unless it may be the .case of Purcell v. Goshorn, 17 Ohio, 105, and the case of Moulton v. Hud, 20 Ills. 137; and in this last case the fact of mistake was denied by sworn answer, and no evidence of it was before the court, so that the question was not properly pu-esented; and besides this, the cases cited do not support the ruling. In the case of McFarland v. Febiger, 7 Ohio, 194, a suit in equity for dower, the wife, who was not owner of the fee, and whose name was not contained in the granting clause of the deed, nor was there any relinquishment of dower, joined her husband in its execution. In,answer to interrogatories by the grantee she testified “that she was apprized before she executed the deed, that it was insufficient to deprive her of her dower, and that she executed it in this belief, and would not have executed it at all had she considered it as extinguishing her rights.” The court held that the deed did not bar her dower. In a note to this case by the editor of a late edition, M. E. Curwen, Esq., it is said: “ The profession, I believe, have not generally been disposed to put so favorable a construction on the complainant’s case, here *204reported, as the judge who pronounced the opinion of the court. It seems to them that thé claim for dower was made under circumstances of great injustice; and after repeated efforts to break down the decision had failed,.the legislature provided that a court of chancery might thereafter correct mistakes in deeds made by husband and wife, as well as in other deeds. The immediate occasion of this law was the decision of Purcell v. Goshorn, 17 Ohio, 105.”
In the case referred to in the note, Purcell v. Goshorn, the court concludes its opinion with this sentence: “ But all this, we think, does not prove that here is only a clerical mistake which needs to be rectified.” And in the case of Carr v. Williams, 10 Ohio, 194, which was one of the efforts to break down the decision in McFarland v. Febiger, the court refused to correct the mistake on the ground that the mode prescribed by the statute for executing the conveyance had not been complied with, (p. 310). And while we regard that view of the case as quite too narrow, we confess that it puts the decision upon a very tenable basis.
The act of the Ohio legislature was passed April 17, 1857, and provided that the courts of the State “ shall be authorized and empowered to correct, amend and relieve against any errors, defects or mistakes occurring in the deed or other conveyance of any husband and wife heretofore or hereafter to be executed, and intended to convey or incumber the lands or estate of the wife, or her right of dower in the lands of her husband, in the same manner and to the same extent as the said courts are or shall be authorized or empowered to correct errors, mistakes, or defects in the deeds of conveyance of any other persons.” The act of the Iowa legislature became a law March 8, 1858, and is a literal copy of the Ohio act except the words “heretofore or,” as above italicised, are omitted. Rev., § 2257.
After the enactment of the Ohio statute, the same case came before the' Supreme Oour.t of that State, see Goshorn v. Purcell, 11 Ohio St., 641, and the chief, and really the only point considered by the court, was, the constitutionality of the retrospective clause of the act. The court held it constitu*205tional, and confirmed the rights of the grantee under the conveyance. This ruling was approved in Miller v. Hine, 13 Ohio St., 565, and was both approved and followed in Smith v. Turpin, 20 Ohio St., 478. The effect of these decisions is to give to the courts power to correct a defective execution of a deed for real estate, when the parties “intended to convey” it; a power which the courts did not otherwise possess, and which, but for the peculiar provisions of the Ohio constitution, Art. 2, Sec. 28, the legislature might not be able to make retroactive. But the general power to correct errors and mistakes in executed instruments- and the like was. not only originally inherent in courts of chancery, but the necessity for the judicial exercise of such power was among the leading causes which called such courts into being. Whenever a person has authority to make a contract or conveyance, either generally or within prescribed limits, and it has been executed pursuant to authority, the inherent power of a court of equity is adequate to the correction of any mistake in it, without legislative aid. But, since the legislature prescribes the mode and - manner, or the circumstances under which married women have authority to make contracts and conveyances, the power to correct errors and mistakes in the efforts to exercise the authority properly comes from the legislature. The district court, then, should have corrected the mistake in the deed, and. quieted the title in the defendant.
In this view, it becomes wholly unnecessary to notice the question made lipón the statute of limitations.
„ . appeal. It is a conceded fact, and indeed is expressly stated in the majority opinion, that the counsel on either side have not,. either in the court below or here, made any objection to the sufficiency of the acknowledgment of the deed by Mrs. Heaton, or of the officer’s certificate thereof. In my opinion, therefore, that question is not properly before us for determination. If to pass that question unnoticed, would lead to a grossly inequitable result, I might readily consent to an order for a re-argument, with a suggestion that the question of the sufficiency of the certificate of acknowledgment, had occurred to us, and probably might well deserve *206and receive the attention of counsel. But, in a case like this, where, by passing the question unnoticed, as counsel have done, a confessedly equitable and just result, in view of all the facts, could properly be reached, it seems to me to be a very g’reat violation of equity, as well as of the rules of practice, to take notice of it. By passing it unnoticed it will be remembered that the title of the land, would remain and be quieted in the defendant who purchased and paid for it in full in 1845, and who has been in the undisturbed possession of it, and has cultivated it by his tenants and paid taxes thereon as owner, each year, for the last twenty-five years. Under such circumstances, for an appellate court to originate a purely technical, question and one not made by counsel, for the purpose, or to the effect of depriving such purchaser, possessor and tax payer, of his land, is in my mind to do a wrong.
It seems also, to me, that if it' is determined to originate here such technical question in an equity cause, and upon which counsel have made no point, at least the cause should be set down for re-argument, and a fair opportunity allowed for the discussion of the question. This is especially so, under our rules requiring a printed abstract, since the omitted words may have been dropped for brevity or other cause, or, perhaps there is no defect, in fact, in the acknowledgment, and since no question was made upon it, no care or thought was taken as to the abstract of it. But further than this, and upon the question of practice, it seems to me that this court has no rightful authority to originate the question, and that it could not now be made even by counsel. The deed was offered in evidence by the defendant, and no objection thereto was made by the plaintiff. Having made none in the court below, none can be made here. The objection here raised by the court, goes'to the sufficiency of the execution of the deed, and by every rule of practice, that objection must be made when the instrument is offered in evidence. If not made then, it cannot afterwards be made even in the same court. The legal effect of the deed may afterwards be considered, but its execution cannot be questioned; and this objection here, raised goes only to the sufficiency of the execution 'of 'the deed by the wife. Hence this *207objection was waived, and cannot be raised here, even by counsel. And, finally, this court has repeatedly in direct and express language held-, that it will not consider questions which •are not 'raised in the court below. "We refer to some of the eases: Couch & Kinsman v. Barton, Morris, 354; The Western Stage Co. v. Walker, 2 Iowa, 504; McGregor, Laws & Blackmore v. Armill, Ib. 30; The State v. Groome, 10 Iowa, 308; Pigman v. Denney et al., 12 Iowa 396; McKinley v. Betchtel et al., Ib. 561; Bevan v. Hayden, sheriff, 13 Iowa, 122; Morgan v. Webster County, 15 Iowa, 595; Starry v. Starry, 21 Iowa 256, an equity cause and quite in point; Kinley v. Brown, 22 Iowa, 538; McNaught v. The C. & N. W. R'y Co., 30 Iowa, 336; Elder v. Littler, adm'r, 15 Iowa, 65; See also, Lattourett v. Cook, 1 Iowa, 1, and cases cited in note h in Cole’s edition. And it has also been often held by this court that questions relied upon to reverse a case must not only be presented in the brief, but they must also be argued by counsel, or they will not be noticed. Shaw v. Brown, 13 Iowa, 508, (i. e.) 515; The County of Dubuque v. Koch, 17 Iowa, 229; Clise v. Freeborn, 29 Iowa, 110, expressly in point; Bodwell v. Bragg & Bro., Ib. 232; Snyder v. Eldridge et al., 31 Iowa, 129, and other cases.
Eor these reasons I think it is wrong in equity and in law, to originate the technical question and decide the case upon it. -Upon the other ground the judgment should be reversed, and justice thereby done; but the majority say it must be
Affirmed.