delivered the opinion of the Court—
The questions that first present themselves for our determination in these cases, arise upon the evidences of title introduced and relied upon, on the trial, by the plaintiff in the court below.
The deed from Speed to B. Beall, dated in August, 1803, having been proved before the clerk of the Mercer County Court, by the subscribing witnesses thereto, and recorded, on his certificate of that fact, in the County Court of Bracken, where the land was situated, was not duly authenticated, as a recorded instrument. A clerk of a County Court, prior to the passage of the act of 1810, to amend the acts regulating conveyances, had no power to take the acknowledgment or proof of the execution of a deed for land that did not lie in his county. But although the deed was not admissible in evidence as a recorded instrument, yet as the original, and not merely
We do not deem it necessary to decide whether the deed to the plaintiff, executed by the commissioners under the act of the Legislature passed in 1817, vested the title to the land in her, or was efficacious for any purpose. Be this as it may, it was competent evidence not only to show the extent of the boundary claimed by her, but also to prove the important fact, that the purchasers from her husband acquired and held the possession of the land in controversy under her title. The deed from her husband, as well as the bond he executed, under which the defendants claimed, referred to this commissioners’ deed, as the foundation of his title, and proved conclusively that the land he sold belonged to his wife. The purchasers from the husband, having entered under the title of the wife, cannot deny her title, and consequently it was immaterial whether the commissioners’ deed was valid or not.
But it is contended that the plaintiff was precluded, by the proceedings had in the County Court*after the death of her husband, from asserting any right to so much of the land in dispute as was included in the bond he executed in his lifetime, and for which a deed of conveyance was made by the County Court Commissioners. If those proceedings were in all respects regular — and whether they were or not we do not deem it necessary to depide — still, nothing passed by the commissioners’ deed, as the obligor in the bond had no title which could descend to his heirs. The acts which authorize County Court Commissioners to convey lands, merely provide for the conveyance of the title which has descendedlo the heirs of a deceased vendor by executory contract. The plaintiff does not claim the land under her husband, nor had he any title which descended to his heirs, and con
Her name is not contained in the body of the deed as one of the grantors, but she signed and sealed it, in conjunction with her husband, and relinquished her right of dower in the land before two justices of the peace. The husband is the sole grantor in the deed; it purports to be a sale -and conveyance of his land, and not the land of hi3 wife, and does not contain any language indicating an intention that she was to convey" her right of inheritance to the land. Indeed, it may be inferred, from the manner in which the deed was drawn, executed, and certified, that a relinquishment of dower on the part of the wife, was all that was intended to be done by her.
The act of 1840 only applies to such deeds as the wife has executed jointly with her husband, for the conveyance of her right of inheritance to the land subsequently sued for by her or her heirs. The object of the Legislature in the passage of the act, was to place a limitation upon such suits, where it appeared that the deed executed by the wife would have been effectual to pass her title to the land, if the officer before whom it was acknowledged by her, had certified in proper form, and not merely that she had relinquished her right of dower.
From an examination of this provision, as well as of all the other statutes regulating conveyances, it is evident, that to enable the wife to convey her title to land, she-must join with her husband in a deed containing apt words of grant, and purporting to be a conveyance by her, as well as by her husband. The instrument of writing must “be shown and explained to her,” so that she may fully understand the effect of its execution. This requisition of the law demonstrates conclusively that she is to be one of the grantors in the deed, and that its language must import a sale and conveyance by her. This deed then would not, in its present form, have conveyed to the grantee the wife’s right of inheritance in the land, even if it appeared that it had been executed for that purpose. But the manner of its execution, as well as the certificate of the justices of the peace, indicate that no such intention existed, and that a relinquishment of dower merely was contemplated by the parties.
The instruction therefore, of the court below, that the plaintiff could not recover the land embraced by
Wherefore, the judgment appealed from by the plaintiff in the court below is reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.
The judgment appealed from by the defendants, Hobbs and others, is affirmed.