THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Kentucky.
It was an ejectment brought by the heirs of Mary E. Fairbairn, to recover a half-acre lot in the city of Louisville, designated on the old plan as number 22, and on the new plan as number 31.
There were many questions in the case, but as the opinion of the court turned upon a single point, it is not necessary to state any except that one.
On the 12th of March, 1811, Mary E. Fairbairn, being the wife of Thomas H. Fairbairn, and the owner of the lot in controversy, subject to the dower interest of her mother, united with her husband and mother in executing a deed for the premises. She then resided in the city of Baltimore. It was alleged by her children and heirs that this deed was incompetent to pass her interest, being improperly executed.
They therefore brought an ejectment to recover it.
'This indenture, made this 12th day of March, in the year of our Lord 1811, between Elizabeth Henry, Thomas H. Fairbairn and Maria his wife, (daughter and heiress of Daniel Henry, deceased,) of the city of Baltimore, in the state of Maryland, of the one part, and Dr. Richard Ferguson, of the town of Louisville, in the county of Jefferson and state of Kentucky, of the other part, witnesseth: that the said Elizabeth Henry, and Thomas H. Fairbairn and Maria his wife, for and in consideration of the sum of eight hundred dollars, current money of the United States of America, to the said Thomas H. Fairbairn in hand paid, at and before the execution of these presents, the receipt whereof is hereby acknowledged, the said Elizabeth Henry, as tenant in dower, hath aliened, released, and confirmed, and by these presents doth alien, release, and confirm; and the said Thomas H. Fairbairn as tenant by the curtesy, and the said Maria his wife, as tenant in fee-simple, have granted, bargained, sold, conveyed, released, and confirmed, and by these presents doth grant, bargain, sell, release, convey, and confirm, unto the said Richard Ferguson, his heirs and assigns, forever, a certain lot of land, with all the appurtenances, situate, lying, and being in the town of Louisville aforesaid, and known on the plan or map thereof by the number ninety-one, (91,) containing half an acre, be the same more or less, on Main street, adjoining the northwardly side of the half-acre lot whereon the said Ferguson now lives, and between the same and Main street: to have and to hold the said half-acre lot number ninety-one, with all the appurtenances, unto the said Richard Ferguson, his heirs and assigns, to his and their only proper use and behoof forever. And the said Thomas H. Fairbairn and Maria his wife do covenant and agree, to and with the said Richard Ferguson, and his heirs and assigns, that they, the said Thomas and Maria, will, and their heirs, executors, and administrators, shall, warrant and forever defend the said lot of land numbered ninety-one, with all the appurtenances, unto the said Richard Ferguson, his heirs and assigns, against all and every person or persons whatsoever lawfully claiming or to claim the same.
'In witness whereof, the said Elizabeth Henry, Thomas H. Fairbairn, and Maria his wife, have hereto set their hands and seals, on the day and year first written.
THOMAS H. FAIRBAIRN, [L. S.]
MARIA ELIZA FAIRBAIRN. [L. S.]
'Signed, sealed, and delivered, in presence of––
'Baltimore county, state of Maryland, sct.:
'Be it known and remembered, that on this 12th day of March, 1811, Elizabeth Henry, and Thomas H. Fairbairn and Maria his wife, parties to the within and foregoing deed of conveyance to Dr. Richard Ferguson, come in their proper person before me, Edward Johnston, mayor of the city of Baltimore, in the state aforesaid, and signed, sealed and delivered said deed of conveyance, as and for their voluntary act and deed; and the said Maria, being privately examined by me out of the presence and hearing of her said husband, did, of her own free will and consent, again consent to and acknowledge the said deed of conveyance as and for her act and deed, the same being shown and explained to her; and also relinquished and released all her right, title, interest, and estate, and fee, of, in, and to the lot of land number 91, with all the appurtenances by the said deed conveyed, or intended to be conveyed.
'In testimony whereof, I have hereto set my hand, and caused the corporate seal of the city of Baltimore to be hereunto affixed, the day and year above written.
'EDW'D JOHNSTON, Mayor of the city of Baltimore.'
Upon the trial in the court below, the following instructions were given with reference to this deed.
'And in substitution of a number of instructions moved by the plaintiff, the court gave to the jury these instructions.
'Instead of the plaintiff's instruction No. 1, the court instructed the jury, that the deed of conveyance by Thomas H. Fairbairn, &c., of 12th March, 1811, to the defendant Dr. Richard Ferguson, whereof a copy was read in evidence by the plaintiff, was not in law the deed of the feme covert Maria E. Fairbairn, is not her deed of conveyance for any purpose whatever, and passed from her to Dr. Ferguson no estate whatever in the lot of land in controversy.'
The bill of exceptions brought up this instruction, amongst others:
The question was, whether the mayor of the city of Baltimore had a right to take the acknowledgment.
The act of Virginia, passed in 1776, which had been adopted by Kentucky, (4 Littell's Laws of Kentucky, 432,) allowed the mayor of a city to take an acknowledgment, where the grantor resided out of Virginia.
Two acts were afterwards passed by Virginia, one in 1785 and the other in 1796, prescribing other modes of taking acknowledgments in such cases, and the question was, whether these acts repealed that of 1776. The provisions of these acts are ...