Wehrle v. Price

Poffenbarger, Judge,

(dissenting):

I am unable to concur in this decision. No authority justifies abrogation of the statutory requirements pertaining to conveyances by married women, by holding them to be directory or otherwise. It is not to be assumed that, because the legislature has greatly relaxed the rigid law of this subject, it intended further relaxation. Nor is it the province of the courts to extend the policy of relaxation and simplicity, adopted by the legislature, in such manner and to such extent as wholly to dispense with anything the legislature has seen fit to require as a matter of substance. Sec. 3, ch. 73, Code, prescribes a form of acknowledgment for single persons, and sec. 4 of the same chapter, for husband and wife. The latter form prescribes a recital of the relation between them, saying the certificate shall be in form or effect as therein set out. In all other respects, the two forms are the same. If this recital is not matter of substance; the second form is useless, and prescription thereof by the legislature was a vain and idle act. If it is immaterial, mere formality, and may be ignored, the first form may always be used and the relation proved by extrinsic evidence. That it is matter of substance necessarily results from the enactment of the two forms, one omitting it and the other adopting it. Few in-stancés can be found in legislation-, in which the purpose to make a phrase material and substantive is more clearly in*672dicated. Upon what other theory can the use of the two forms be explained? Was the second prescribed for mere convenience of the parties, the certifying officer or the public? Such is not the import of the legislative terms. They say, when a husband and wife have signed a writing purporting to convey real estate, they may acknowledge the same together, and, if they do, the certificate of their acknowledgment shall be in form or effect as prescribed. They are literally mandatory. The mandatory form is strengthened and emphasized by the phrase reciting the relation. It is the sole addition to the preceding form, prescribed for acknowledgments by single persons. To make the form mandatory, it was unnecessary to employ a negative, or to say the acknowledgment should be certified in that form and not otherwise. Morris v. Board of Canvassers, 49 W. Va., 554, 569; Mears v. Dexter, 88 Va., 828. If the thing directed to be done, is of the essence of the thing required, the statute giving the direction is mandatory. The thing directed here is not a mere part of some larger thing required. It is the only thing required in the second form. Omission thereof is omission of all that is really required by sec. 4 of the chapter.

These words in the statute must be allowed some effect. “It is not to be presumed that the legislature intended any part of the statute to be without meaning.” Bank v. County Court, 36 W. Va. 341; State v. Harden, 62 W. Va. 313, 315, 339; Lewis’ Suth. Stat.. Con. sec. 497. The form of the legislative expression is not controlling. The intent governs. A mere recital is as efficacious as a positive and formal affirmation or direction, if, taken in connection with its context and subject matter, it manifests legislative purpose. Ches. & Pot. Tel. Co. v. Manning, 186 U. S. 238; Stanley v. Colt, 72 U. S. 119; Georgia etc. Co. v. Smith, 128 U. S. 174; Ches. & O. Ry. Co. v. Pack, 6 W. Va. 397; Cecil v. Clark, 44 W. Va. 659. But this is not a recital. The direction is to certify certain facts and the relation of husband and wife is one of them, notwithstanding the adjective use and form of the phrase in question.

The expediency, utility or necessity of the requirement was matter for legislative, hot - judicial, discretion. Authority *673need not be cited for the proposition that courts cannot legally cut out or ignore legislative terms or requirements merely because they do not see any good reason for their insertion, or because they can see something else would have operated just as well or better than the provision adopted.

Deeming the decision in Shumate v. Shumate, unsustained by the law, I did not concur in it. It is in direct conflict with Bennett v. Pierce, 45 W. Va. 654. But, if sound, it is no authority for the view here adopted by my associates. The parties to the instrument upheld in it were living separate and apart. These parties were not.

In Morgan v. Snodgrass, 49 W. Va. 387, 395, Judge Bran-non suggested necessity of identification of the parties, or recital of the relation, which is the same thing, by the certificate, and cited Merritt v. Yates, 71 Ill. 636, expressly so holding. The certificate disapproved in the cited ease was made under a statute requiring a separate examination, but that is immaterial. We have dispensed with such examination, but not with the requirement of a certificate of the relation of the parties. Whether we should do so or not, is 'a question for the legislature. - a