Barrett v. Tewksbury

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The defendant, Emily S. Tewksbury, was the owner of certain premises in the city of San Francisco, as her separate property. A sale of this property was negotiated by her husband with James Barrett, one of the plaintiffs. A warranty-deed, from Mrs. T. to Mrs. B., was drawn up by an attorney, and executed and acknowledged by Mrs. T. This deed was satisfactory to James Barrett and Jacob M. Tewksbury, who were in the office when it was drawn. All parties supposed the deed sufficient. The acknowledgment was not in the form required by statute. The purchase-money, three thousand dollars, was j>aid; after-wards, the defect was discovered, and defendant, Jacob M. Tewksbury, repeatedly promised to execute, with his wife, a quit-claim-deed, but as often deferred it, and finally refused. This bill was then filed to compel him to join in the separate deed of his wife, under date of June 21st, 1852. The Court below decreed that defendant, Jacob M. Tewksbury, join in the execution of the deed of Emily S. Tewksbury, and duly acknowledge the same before a proper officer. From this decree the defendants appealed.

The deed, not being properly acknowledged, is insufficient. It is not in the power of a Court of Equity to compel a married woman to correct an insufficient acknowledgment. Her consent must be perfectly free. She can make no contract to bind her, except in the manner prescribed by the law. The provisions of the statute must he strictly pursued. She must be examined separate and apart from her husband. Whether the husband must join in the deed, we do not now determine.

If we had the power to enforce mere moral obligations, we should compel the defendants to execute and deliver a good deed. It is a hard and unconscionable case; but we can give no relief.

The decree of the Court below is reversed, and the hill of plaintiffs dismissed.