[637]

ers, and a copy of the petition was served on
them.

The Attorney-General of Louisiana appeared
and filed an exception to the proceeding by
mandamus, claiming that the petitioner could
only have relief by a plenary suit, via ordinaria;
and that it was, in fact, a suit against the State,
which could not lie without its consent, and
that the State declined to be made a party to
the proceeding.

The recorder of mortgages appeared, and contended that he could not be required to cancel the inscription of the mortgages until it had been judicially declared that they were not valid and existing securities, by proceedings via ordinaria by way of citation contradictorily had with the parties claiming the benefit of the mortgages.

The holders of the state bonds, Denis and others, appeared, and denied the allegations of the petition, and pleaded that the court had no jurisdiction of the demand of the relator, because receivers had been appointed to the Consolidated Association of Planters by the Circuit Court of the United States, and that court only could entertain jurisdiction of the matter. The receivers of the association, appointed by the circuit court, did not appear, and offered no objection to the proceeding.

The cause was tried and the civil district court, for some reason not shown, dismissed the petition. The case was then appealed to the Supreme Court of Louisiana, which, on the first hearing, affirmed the judgment; but, on a rehearing, reversed it and granted a mandamus as prayed.

On the question of jurisdiction raised by the plea of the bondholders, the court said: "The point made that this court is without jurisdiction because receivers have been appointed for the Consolidated Association by the United States Circuit Court is untenable, when the object of the proceeding is to erase from the mortgage book of the State an incumbrance created by the law, and which the Circuit Court of the United States would have no authority to order."

an order of the circuit court, made December
29, 1883, in a cause in which William Cressey
was complainant and the Consolidated Associ-
ation of Planters were defendants, for an in-
junction and the appointment of receivers, en-
joining the defendants from disposing of the
association's assets or property; and appointing
John Calhoun, T. J. Burke and George W.
Nott as receivers in the cause, and directing
them forthwith to take possession of all the
property and assets of the said association and
proceed to administer the same under the di-
rection of the court, and collect all accounts
due said association, and all parties having pos-
session of assets, securities, books, papers,
vouchers or effects of said association be or-
dered to deliver up the same to said receivers,
and that said receivers be vested with all the
rights and powers of receivers in equity in this
cause.

A subsequent order, a copy of which was al-
so annexed to the petition for writ of error, con-
tinued Calhoun and Burke as receivers, and
specified more minutely their powers and du-
ties, not materially differing from the above.
By another order, made in June, 1884, a copy
of which was also annexed to the petition,
Burke was relieved and Calhoun was continued
as sole receiver.

The other defendants having declined to join in the writ of error, the court made the following order on the application for writ of error: "Order.

"The exceptions filed by Forstall's Sons and Denis to the jurisdiction of the district court were filed after the general issue had been pleaded. They do not appear to have been urged in the lower court, as no evidence was offered to show jurisdiction in the Fifth Circuit Court, Eastern District of Louisiana, and were not passed upon, as the judgment of the lower court dismissed the application on a question of proceeding. On appeal no allusion was made to them, and no action of the appellate court was asked on them.

"The acceptors have taken a chance for a
decision in their favor on the merits. After
getting one against them they cannot be al-
lowed the relief now sought. Mays v. Frit
ton, 87 U. S. 20 Wall. 414 [22: 389].

"The application for the writ is refused.
"New Orleans, March 26, 1895.

"E. BERMUDEZ, Chief Justice."

We think that copies of the orders made by the circuit court, which were annexed to the petition for a writ of error, were produced in the case altogether too late to constitute any ground for importing a federal question into the cause, although we do not perceive that it would have made any difference in the result if they had been presented regularly in the court of first instance.

As this presents the only federal question
raised in the case, we have no occasion to con-
sider any other. If the state court had juris-
diction of the proceedings, its judgment cannot
be impeached on the present writ of error, for
that is the only objection made to it on federal
grounds. The objection is that the court has
no jurisdiction because the United States Court
had appointed receivers of the association.
The simple fact that the said court had appoint-
ed such receivers is the only fact disclosed in
the record, so far as the proceedings in the Cir-
cuit Court of the United States are concerned,
until after final judgment had been rendered
in the Supreme Court of Louisiana; and this
fact only appeared by the statement of the de-
fendants Forstall and Denis in their answer.
After final judgment of the supreme court was Taking the case, then, as it stood when the
rendered, John Calhoun, who had become sole final decision of the Supreme Court of Louisi-
receiver, together with Denis, one of the state ana was made, we have simply to decide wheth-
bondholders, presented to the supreme court a er the single fact that the circuit court had ap
petition for an order to call on the other defend-pointed receivers of the association deprived
ants to join them in an application for a writ the state court of all jurisdiction of the peti-
of error in this court, and if they refused, then tion for mandamus. We have seen that the
that such writ be allowed to the petitioners Supreme Court of Louisiana decided that it
alone. To this petition was annexed a copy of I did not, and we have seen the reason why they

[638]

[639]

supposed it did not, namely, that the circuit | diction of the case, and the judgment of the Su-
court had no authority to order an erasure of a preme Court is affirmed.

mortgage on the records of the State.

We should hesitate to concur with the state

court in the opinion that the Circuit Court of

Err.,

v.

JACOB M. HAYMAKER.

(See S. C. Reporter's ed. 719-730.)

Virginia law as to deed of wife-death of wife-
assent of husband-descent to heirs-Ohio Law.

the United States would have no authority to J. HAIRISTON SEWALL ET AL., Piffs. in [719]
order the erasure of an incumbrance from the
mortgage book of the State. The courts of
the United States, in cases over which they have
jurisdiction, have just as much power to effectu-
ate justice between the parties as the state courts
have. But we do not suppose that the jurisdic-
tion of the state court in the present case depends
on the incapacity of the circuit court to afford re-
lief; but on its own inherent powers, and the
fact that such jurisdiction has not been taken
1. The acknowledgment and recording of con-
away by the proceedings in the federal court. veyances by husband and wife, of lands in Virginia,
We held in a number of cases, that the jurisdic-in the mode described by the laws of that State, is
tion of the state courts over controversies be- essential to pass the estate of the wife in such land.
2. A deed of lands signed and acknowledged by
tween parties, one of whom was proceeded a wife in Virginia, but not acknowledged by her
against under the late national bankrupt law, husband prior to her death, became, upon her death,
was not taken away by the bankruptcy pro-ative as a conveyance of her interest in the lands.
so far as the laws of Virginia are concerned, inoper
ceedings; although a suit against the bankrupt
might be suspended by order of the bankruptcy
court until he obtained or was refused a dis-
charge. See Eyster v. Gaff,91 U.S. 521 [23:403];
Claflin v. Houseman, 93 U. S. 130 [23:833];
Mays v. Fritton, 87 U. S. 20 Wall. 414 [22:389];
McHenry v. La Société Francaise, 95 U. S. 58
[24:370]. In the case of Bank of Bethel v.
Pahquioque Bank, 81 U. S. 14 Wall. 383 [20:
840], we decided that suit might be brought in
a state court against a national bank, although
it had made default in paying its circulating
notes, and a receiver of the bank had been ap-
pointed by the Comptroller of the Currency.
A fortiori, a company may be sued whose as-
sets have been placed in the bands of a receiver

in an ordinary suit in chancery.

It is objected, however, that no action can be commenced against receivers without permission of the court which appointed them; and reference is made to Barton v. Barbour, 104 U. S. 128 [26:674], and Davis v. Gray, 83 Ú. S. 16 Wall. 203 [21:447]. This is not an action against the receivers, but against the Consolidated Association and the recorder of mortgages. The receivers were notified of the proceeding by being served with a copy of the petition, so as to give them an opportunity of objecting if they saw fit to do so. They did not appear, and [640] made no objections. The state bondholders were made parties, and they did appear. We are not concerned, however, with the proceedings, or the merits of the case, but only with the question of the jurisdiction of the court. Of this we have no doubt. Perhaps the circuit court, on application of the receivers, might have interfered to prevent the petitioner from proceeding in the state court, had they thought proper to make such an application; but they did nothing of the kind.

This was not the case of a proceeding in the state court to deprive the receivers of property in their possession as such. That would have been a different thing, and the state court would not have had jurisdiction for such a purpose. This was only a case for enforcing the right of the petitioner to have canceled on the books of the recorder a mortgage which had been satisfied and paid,-not interfering in any way with the possession of the receiver.

We are satisfied that the state court had juris

3. Until the husband acknowledged it, and thereby, in the only way prescribed by statute, gave his assent to her conveying away her interest, the deed was ineffectual; and such assent was of no avail after her death.

4. The land, in such case, passed to the heirs of the wife; and their title could not be devested by any subsequent act of the husband.

5. Under both the Ohio and Virginia Statutes, a deed by the husband and wife, conveying the latter's land, is inoperative to pass her title, unless the husband (she having duly acknowledged the deed) did,in her lifetime and by an acknowledgment in the form prescribed by law, signify his assent to such conveyance.

[No. 244.]

Argued April 20, 1888. Decided May 14, 1888.

IN ERROR to the Circuit Court of the United

States for the Southern District of Ohio, to
review a judgment in favor of defendant in an
action to recover land in Ohio. Reversed.
The facts are stated in the opinion.
Mr. C. B. Matthews, for plaintiffs in error:
The deed has not been executed in accord-
ance with the statute, and is therefore void.

Schoul. Hus. & W. § 175; Trimmer v. Heagy,
16 Pa. 484; Dunham v. Wright, 53 Pa. 167;
Glidden v. Strupler, 52 Pa. 400; Warner v.
Crouch, 14 Allen, 163; Gerrish v. Mason, 4 Gray,
432; Palmer v. Paine, 9 Gray, 56; Dodge v.
Hollinshead, 6 Minn. 25; Annan v. Folsom, Id.
500; Lane v. Soulard, 15 Ill. 123; Mariner v.
Saunders, 10 Ill. 113; Cole v. Van Riper, 44 Ill.
58; Grapengether v. Fejervary, 9 Iowa, 163;
Miller v. Wetherby, 12 Iowa, 415.

This deed was not capable of being made a valid conveyance by the acknowledgment of the husband after the death of the wife.

Jackson v. Stevens, 16 Johns. 110; Doe v. Howland, 8 Cow. 277; Smith v. Shackleford, 9 Dana, 453; Shoenberger v. Zook, 34 Pa. 24; Leggate v. Clark, 111 Mass. 308; Lawrence v. Heister, 3 Har. & J. 371; Dewey v. Campau, 4 Mich. 565; Dow v. Jewell, 21 N. H. 470; Kottman v. Ayer, 1 Strobh. L. 552; Stiles v. Probst, 69 Ill. 382; Rhea v. Rhenner, 26 U. S. 1 Pet.105 (7:72); ELliott v. Peirsol, Id. 328 (7:164).

The Statute of Limitations does not begin to
run until the death of the husband.

Koltenbrock v. Cracraft, 36 Ohio St. 585;
Thompson v. Green, 4 Ohio St. 217; Clark v.
Clark, 20 Ohio St. 128.

(No counsel appeared for defendant in error.)

Mr. Justice Harlan delivered the opinion of the court:

This was an action to recover forty-two undivided one hundredth parts of a tract of land, in the County of Fayette, State of Ohio. The answer denied that the plaintiffs, or either of them, have any estate, title, or interest in or to this land, or to any part thereof. The defendant also pleaded that no cause of action accrued to the plaintiffs or to either of them against him, within twenty years prior to the filing of the petition.

| of the peace in the county and State aforesaid,
do hereby certify that John Sinclair, a party to
a certain deed bearing date the 10th day of
September, 1837, and hereunto annexed, per-
sonally appeared before us in our own county
aforesaid, and acknowledged the same to be his
act and deed, and desired us to certify the said
acknowledgment to the clerk of the counties
of, in the State of Ohio, in order that the
said deed may be recorded.

"Given under our hands and seals this 14th
of May, 1840.

[SEAL.]
[SEAL.]

"WM. ROBINS.
"THOMAS SMITH.
"STATE OF VIRGINIA, Gloucester County, to
wit:

The bill of exceptions shows that the plaintiffs in error, after offering in evidence a patent of the United States covering the land in controversy, made proof tending to establish the following facts: The patentee, William Green "I, John R. Cary, clerk of the court of the Munford, died intestate, leaving as his only county aforesaid, in the State aforesaid, do hereheirs, Robert Munford, John Munford, Stan- by certify that Wm. Robins and Thomas Smith hope Munford, William Green Munford, Eliza- and Peyton R. Nelson, Esquires, whose names beth Munford, and Mary Munford. Three of and seals are affixed to the within certificates of these heirs-Stanhope, William Green, and acknowledgments, were, at the time of subscrib[720] Elizabeth-died early in the present century, ing the same, justices of the peace in and for the unmarried, childless, and intestate; the other county aforesaid, duly commissioned and qualthree inherited the patented lands in equalified, and that due faith and credit may and shares. Margaret Ann Munford, the only heir ought to be given to all their acts as such. of Robert Munford, who also died intestate, "In testimony whereof I have bereunto was born in the year 1800, and in 1819 inter- subscribed my name as clerk aforesaid and afmarried with John Sinclair. She died intestate fixed the seal of the said county this 14th day September 13, 1837, having inherited one third of May, 1840, in the 64th year of the Commonof the property in controversy. Her husband wealth. died August 3, 1875. The original plaintiffs are her only heirs, and J. Hairiston Sewall is the grantee of some of the original plaintiffs for whom he was substituted as a party.

This was the case made by the plaintiffs in error who were plaintiffs below.

The defendant, to maintain the issues on his part, offered in evidence a certain deed, purporting to be a conveyance to one Cary S. Jones of the interest of John Sinclair and Margaret Ann Sinclair, his wife, in this land.

That deed is dated September 10, 1837-three days before the death of Mrs. Sinclair-and purports to be signed by the grantors-Sinclair and wife, of Gloucester County, Virginia-and to have been "signed, sealed and delivered in presence of Wm. Robins, Richard S. Jones, and Pet. R. Nelson." Attached to it are the following certificates:

"GLOUCESTER COUNTY, to wit:

"We, William Robins and Peyton R. Nelson, Justices of the peace in the county aforesaid, in the State of Virginia, do hereby certify that Margaret Ann Sinclair, the wife of John Sinclair, parties to a certain deed bearing date on the 10th of September, 1837, and hereunto annexed, personally appeared before us, in our county aforesaid, and, being examined by us privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said Margaret Ann Sinclair, acknowledged the same to be her voluntary act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it.

"Given under our hands and seals this 10th day of September, 1837.

SEAL.

"WM. ROBINS. [SEAL.] "PET. R. NELSON. [SEAL.] [721] "STATE OF VIRGINIA, Gloucester County, to wit: "We, Wm. Robins-Thomas Smith, justices

"[L. S.]

JOHN R. CARY, C. G. C.
"STATE OF VIRGINIA, Gloucester County, to
wit:

"I, Wm. Robins, presiding justice of the
court of the county aforesaid, do hereby certi-
fy that John R. Cary, who has given the certi-
ficate below, is clerk of the said court, and that

his attestation is in due form.

Given under my hand this 14th day of
May, 1840.
WM. ROBINS, Sen'r. [SEAL.]"

The plaintiffs objected to the admission of
the conveyance in evidence, upon the ground
that, as it was not acknowledged or proven by
John Sinclair until after the death of his wife, it
was not sufficient and valid, as a conveyance
of the latter's interest, either under the laws of
Virginia where it was executed, or under the
laws of Ohio, where the land is situated.
objection was overruled and the deed admitted
in evidence, to which the plaintiffs excepted.
The defendant offered in evidence deeds con-
veying to him whatever title Cary S. Jones had,
and admitted that he was in possession of the
premises in controversy.

This

No further evidence being offered, the court charged the jury that the deed of September 10, 1837, was a valid conveyance and passed to the grantee Jones all the interest of Margaret Ann Sinclair in the premises; that the defendant, by subsequent conveyances, had become the grantee of that interest; and that he was entitled to a verdict. To this charge the plaintiffs excepted.

The Act of the General Assembly of Ohio, passed February 21, 1831, entitled "An Act to Provide for the Proof, Acknowledgment, and Recording of Deeds and Other Instruments of Writing," was in force both when Mrs. Sinclair acknowledged the deed to Jones-September 10, 1837-and when it was acknowl

[722)

[723]

724]

edged, in 1840, by her husband. Its fifth sec- | and if, before any two justices of the peace, for
tion is in these words: "All deeds, mortgages,
powers of attorney, and other instruments of
writing, for the conveyance or incumbrance of
any land, tenements or hereditaments, situate
within this [that] State, executed and acknowl-
edged or proved in any other State, Territory
or country, in conformity with the laws of said
State, Territory or country, or in conformity
with the laws of this State, shall be valid as if
executed within this State in conformity with
the foregoing provisions of this Act." 29 Ohio
Stat. 346; 1 S. & C. 458, 465.

The Statute of Virginia applicable to the case was the Act of February 24, 1819 (Rev. Code, Va. 1819, p. 361), entitled "An Act to Reduce into One the Several Acts for Regulating Conveyances and Concerning Wrongful Alienations."

Its first section provides:

"That no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another unless the conveyance be declared by writing sealed and delivered; nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her or their act, before the court of the county, city or corporation in which the land conveyed or some part thereof lieth, or in the manner hereinafter directed, and be lodged with the clerk of such court to be there recorded."

The fourth section provides:

any county or corporation, in any State' or
Territory of the United States or of the Dis-
trict of Columbia,' such married woman, being
examined privily and apart from her husband,
and having the writing aforesaid fully ex-
plained to her, shall acknowledge the same to
be her act and deed, and shall declare that she
had willingly signed, sealed and delivered the
same, and that she wished not to retract it, and
such privy examination, acknowledgment and
declaration shall be certified, by such justices,
under their hands and seals, by a certificate an
nexed to said writing, and to the following ef
fect, that is to say: County or Corporation, Sc:
We, A. B. and Č. D., justices of the peace in
the county (or corporation) aforesaid, in the
State (or Territory or District) of
hereby certify that E. F., the wife of G. H.,
parties to a certain deed, bedring date on the
day of
and hereunto annexed, per-
sonally appeared before us in our county (or
corporation) aforesaid, and being examined by
us, privily and apart from her husband, and
having the deed aforesaid fully explained to
her, she, the said E. F., acknowledged the
same to be her act and deed, and declared that
she had willingly signed, sealed and delivered
the same, and that she wished not to retract it.
Given under our hands and seal this
day of

~, do

A. B. [Seal.] C. D. [Seal.]; and such certificate shall be offered for record to the clerk of the court in which such deed ought to be recorded; it shall be the duty of such clerk to record the said certificate accordingly, along with the deed to which it is annexed; and when the privy examination, ac "All bargains, sales and other conveyances knowledgment and declaration of a married whatsoever of any lands, tenements or heredita- woman shall have been so taken in court and ments; whether they be made for passing any entered of record, or certified by two magisestate of freehold or inheritance, or for a term trates, and delivered to the clerk to be recorded, of years, and all deeds of settlement upon mar- and the deed also shall have been duly acknowriage wherein either lands, slaves, money or ledged or proven, as to the husband, and delivother personal things shall be settled or cove-ered to the clerk to be recorded, pursuant to the nanted to be left or paid, at the death of the directions of this Act, such deed shall be as efparty or otherwise, and all deeds of trust and fectual in law, to pass all the right, title and intermortgages whatsoever, which shall hereafter be est of the wife, as if she had been an unmarried made and executed, shall be void, as to all woman: Provided, however, that no covenant [725] creditors and subsequent purchasers 'for valu- or warranty, contained in such deed hereafter able consideration without notice,' unless they executed, shall in any manner operate upon shall be acknowledged or proved and 'lodged any feme covert and her heirs, further than to with the clerk to be recorded, according to the convey effectually, from such feme covert and directions of this Act; but the same, as between her heirs, her right of dower, or other interest the parties and their heirs, and as to all subse-in real estate, which she may have at the date quent purchasers, with notice thereof, or with- of such deed." out valuable consideration,' shall nevertheless be valid and binding.

"

The fifteenth section makes specific provision for the execution and acknowledgment of deeds by husband and wife. It is as follows:

"When a husband and his wife have sealed and delivered a writing, purporting to be a conveyance of any estate or interest, if she appear in court, and being examined privily and apart from her husband, by one of the judges thereof, shall declare to him that she did freely and willingly seal and deliver the said writing, to be then shewn and explained to her, and wishes not to retract it, and shall, before the said court, acknowledge the said writing, so again shown to her, to be her act, such privy examination, acknowledgment and declaration shall thereupon be entered of record in such court;

The first section of the Ohio Statute of 1831 (1 S. & C. 458), as modified by the subsequent Acts of January 29, 1833 (Id. 470), and February 17, 1834 (Id. 694), provides that when any man, or unmarried woman, above the age of eighteen years, "shall execute within this State, any deed, mortgage, or other instrument of writing, by which any land, tenement or hereditament shall be conveyed, or otherwise affected or incumbered in law, such deed, mortgage, or other instrument of writing, shall be signed and sealed by the grantor or grantors, maker or makers, or [and] such signing and sealing shall be acknowle lged by such grantor or maker in the presence of two witnesses, who shall attest such signing and sealing and subscribe their names to such attestation, and such signing and scaling shall also be acknowledged

[726]