T
HIS Caufe came before the Court for a determination on a fpecial Verdict which found, That the Defendant's late Wife Sarah, before her Marriage, with the Defendant, fhe and her Hufband joined in a conveyance to two Truftees and their Heirs," Habendum to them and the Survivor of them and his Heirs for
"ever, in truft neverthelefs to and for the proper Ufe and Behoof of
"the faid P. Turner and S. his Wife, for and during their joint
"Lives and from and after the Deceafe of either of them, ten to
"and for the fole and proper Ufe and Behoof of the Survivor of
"them and his or her Heirs for ever." That the faid P. Turner and
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S. his Wife appeared before W.P. Efquire, then one of the Juftices of his Court of Common Plens, for the County of Philadelphia, and acknowledged the faid Indenture to be their Deed, and that the faid Sarah was then and there, fecretly and apart from faid Hufband, examined by the faid W.P. and on fuch private examination did declare, that fhe did fign, feal and execute the fiad Indenture with her full free and voluntary Confent, which acknowledgement and examination were then indorfed by the faid W.P. under his hand and feal, upon the Indentured. The Fpecial Verdict goes on and finds, that for fifty Years and upwards, it had been the conftant practice and ufage of the Province of Pennfylvania, in cafes where Baron and Feme have been defirous to fettle, fell and difoofe of the Eftate of the Feme, for the Baron and Feme to join in a Deed of Deeds, and for the Feme in private and apart from her Hufband, refpecting her figning and executing fuch Deed, and to interrogate her whether fhe became a Party to and executed fuch Deed with her full and free confent, and on her declaration that the freely confented, for the Juftice to certify the fame under his hand and feal. And that a great number of Titles to valuable Eftates in this Province, were held under, and did depend upon Deeds executed by Baron and Femes Covert and their Hufbands had always been allowed to be given in evidence in Courts of Juftice ; that Scriveners had generally conducted themfelves by this Ufage, in transferring Eftates, and that only two Fines had ever been levied in this Province for conveying the Eftates of Femes Covert. The Jury further found that the faid Sarah died without having any (illegible text)born alive, and the Plaintiffs Wife was one of her Heirs at Law.
The principal queftion, was, whether this mode of conveyance of the Eftates of Femme Covert could be fupported by the Ufage, as found by the Jury.
On the Part of the Plaintiff it was urged, that by Law a Femme Covert cannot convey her Eftate but by fine, in which fhe muft be examined by Writ ; that the Ufage in this cafe was not fufficient to alter the Law, to be under the coercion of her Hufband ; and for this purpofe Godb I. 43. was cited.– That fuppofing the cuftom good, the Deed in the prefent cafe was variant from the cuftom as found in the fpecial Verdict ; for that the Ufage ratified this kind of Conveyance only in fuch cafes, where the Feme was willing and defirous to convey, and were the declared fhe becamea Party to the Deed freely ; and that it is not found the Femme in this cafe was willingly and defirous, and had declared fhe became a Party thereto ; for though it is fet forth, that fhe declared fhe executed the Deed freely, yet it does not appear the Deed was read, or the contents made known unto her,
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without which fhe could not be faid to become a Party. Another variance infifted on was, that the examination required by the Cuftom muft be by a Juftice of the Peace, and in this Cafe W.P. is not faid to be a Juftice of the Peace, but a Juftice of the Court of Common Pleas.–It was further urged, that the Deed in this Cafe was void, for two reafons: 1ft Becaufe, though the Conveyance is to Truftees, yet the Ufe is to the Baron and his Heirs, which, by the Statue of Ufes, vefts the legal Eftate immediately in the Baron, and fo is no other than a Conveyance from the Feme to the Baron which is void. The 2d reafon, was, that the Deed wanted a Confideration, there being none mentioned but marriage and five fhillings. That the Marriage was paft, and a paft confideration is no confideration, and the Hufband, fo no confideration to her.
On the Part of the Defendant it was anfwered, that though by the Law of England a Feme Convert cannot convey her Eftate without an examination by Writ, yet in this country a different manner of examination has obtained from the firft fettlement of the Province, in fubftance the fame as an examination on a Fine, which probably in early days could not be levied here for want of fkill in the Profeffors of the Law ; and that now the greater part of the Titles in the Province depend, in fome link of the chain, upon this kind of Deeds, it would be highly inconvenient, and would introduce the utmoft confufion, to overfet them. That Common Recoveries have their validity from ufage, and that if this be an Error, it is within the maxim, Communis Error ƒacit Jus. As to the reafonablenefs of the ufage Brook. tit faits.§ 14.15 was cited to fhow an Examination of Feme Covert before the Lord Mayor in London was good without a Fine. And to fhow the force and extenfion of the maxim, Communis Error ƒacit Jus, many authorities were cited. Certh 283. 4. Sid..190. 2 Mod. 238. ₣ank, 162.250. Anderfon 49.2 Ab. Eq. Ca. 200. Hob. 83. Salk. 33. Col .Litt. 112. Shepherds Touchftone 516 Comb. 320. 342. Stiles 320. As to the variance between this Cafe nd the Ufage, it was faid the Feme had declared the executed the Deed with her free Confent, and that it muft be taken, the Magiftrate did his Duty in making her acquainted with the Contents. As to the other variance, it is notorious that a Juftice of the Common Pleas is a Juftice of the Peace, in this Province, being appointed to both Offices in one Commiffion, and the Court with ex Officio take notice of fo general a practice. As to the objections againft the validity of the Deed, it was anfwered that though a Deed would be void immediately from Baron to Feme, yet it would be good when made to Truftees to the Ufe of the Feme. Co. Litt. 112. And the confideration in the eye of the Law.
BY THE COURT after advifement : Thefe Deeds, and this mode of examination of Femes Covert on conveying their Eftates, having generally prevailed in this Province, from its firft fettlement, and underfone from time to time the
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notice of the Courts of Juftice, it would be very mifchievous now to overturn them. The maxim Communis Error ƒacit Jus cannot operate more properly than in this Cafe ; and the Court unanimoufly adjudge the Law to be with the Defendant.