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403." "The result of my opinion, therefore, is, that in the present case the execution issued against the plaintiff was only voidable, and until set aside affords a good justification. The verdict must, of course, be set aside." Livingston, Spencer, and Tompkins, JJ., concurred. Reynolds v. Church and Douglas, 3 Cai. 274, immediately succeeds the above in the same volume of reports. It differs from it in one particular, which occasioned the plaintiff to be nonsuited in the circuit court. In the supreme court, "Per curiam, delivered by Thompson, J. There can be no grounds for the application to set aside the nonsuit in this case, for the reasons urged in the preceding cause. But in addition thereto, the execution being deemed voidable, the defendant must be considered as having waived the error, and affirmed the execution, by availing himself of his imprisonment under it, for the purpose of obtaining the benefit of the act for the relief of debtors with respect of the imprisonment of their persons." Spafford and Tileston v. Beach, 2 Doug. 150, was a motion to set aside an execution and a sale that had taken place under it. Spafford and Tileston obtained a judgment in the circuit court against Beach, on which a fi. fa. was issued November 14, 1837; and at the May term, 1838, the fi. fa. was returned levied upon real estate of the defendant, which had been advertised for sale, and remained unsold for want of bidders. In October, 1839, an alias fi. fa. was issued on the same judgment, by virtue of which other real estate of the defendant was levied upon, and in March, 1840, sold to the plaintiffs." And it was argued, in support of the motion, that the alias fi. fa. was void; and that, the execution plaintiffs being the purchasers, the sale to them was, at all events, void. But the court said: "A levy on real estate is not, as is a levy on personal property, a prima facie satisfaction." "The issuing the alias fi. fa., while there was a levy, by virtue of a former execution on real estate, which remained undisposed of, was, therefore, a mere irregularity." "The errors complained of, being mere irregularities, should have been taken advantage of in due time by motion. Here the motion was made in January, 1845; the sale was in 1840. The motion comes too late."

The principle to be extracted from these authorities is, that an execution merely voidable may be set aside on motion of the defendant; but if not so set aside, all acts done under it are valid, as well in relation to the execution plaintiff as to strangers. The execution defendant may waive the errors, and if he do not procure the process to be set aside, he will be presumed to have

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waived them. And if he does waive them, the process should not be set aside, even on motion. In the present case, if Burditt and Calvert, for the purpose of avoiding the expense, perhaps, of a scire facias, see Arnold v. Fuller's Heirs, 1 Ohio, 458, at any rate, of some proceeding to get rid of the former invalid levy, expressly waived all objection to the issuing of the alias fi. fa., we can see no justice in permitting their grantee, or the grantee of either of them, now to object that that fi. fa. was erroneous. Whether they did make such waiver, or what were the circumstances under which that fi. fa. issued, can not be ascertained in a collateral proceeding.

It follows from what we have said that the sale in question was not void for the reasons alleged in this suit against it, and the judgment of the court below must be reversed.

It is proper to remark that this case does not extend to irregularities committed by the sheriff in proceeding under an execution. Whether the same rule will apply as to them in regard to purchasers with or without notice, is not a question for our consideration here.

The judgment is reversed, with costs. Cause remanded, etc.

LEVY, WHAT CONSTITUTES: See Weatherby v. Covington, 49 Am. Dec. 621 note 626, where other cases are collected.

PURCHASER UNDER VOIDABLE EXECUTION will be protected in his title Ingram v. Belk, 47 Am. Dec. 591.

LEVY, WHEN A SATISFACTION: See Walker v. McDowell, 43 Am. Dec. 476 note 480, where other cases are collected. The principal case is cited in Barret v. Thompson, 5 Ind. 458, and in Lindley v. Kelley, 42 Id. 307, to the point that a levy on property of sufficient value is presumed to be a satisfaction of the judgment until the property is disposed of; and in Law v. Smith, 4 Id. 58, and in Applegate v. Mason, 13 Id. 79, to the point that a levy is but prima facie satisfaction, and may be shown to have proved not an actual one.

EXECUTION MERELY VOIDABLE MAY BE SET ASIDE ON MOTION, but until set aside, all acts done under it are valid: Soule v. Champion, 16 Ind. 167; Ewing v. Hatfield, 17 Id. 514; Culbertson v. Milhollin, 22 Id. 364, all citing the principal case.

THE PRINCIPAL CASE IS CITED in Hutchins v. Hanna, 8 Ind. 537, to the point that a levy on property that does not belong to the defendant in execu. tion is futile, and may be properly abandoned by the officer who makes it.

JORDAN V. COREY.

[2 INDIANA, 385.]

MARRIED WOMAN'S CERTIFICATE OF ACKNOWLEDGMENT MUST SHOW that she was examined without the hearing of her husband, or the deed, as to her, will be invalid.

MISTAKE IN CERTIFICATE OF ACKNOWLEDGMENT MAY BE CORRECTED at any time by the officer that made it.

CERTIFICATE OF ACKNOWLEDGMENT DOES NOT DEPEND FOR ITS VALIDITY upon its being made matter of record, but a deed can not be recorded without such a certificate as the statute requires.

CERTIFICATE OF ACKNOWLEDGMent of MarriED WOMAN MAY BE AMENDED by inserting therein, by the officer who made it, a statement of the fact that her acknowledgment was made without the hearing of her husband; and the certificate, when so amended, will have the same effect as if it had been properly made at first.

APPEAL from the Tippecanoe court of common pleas. The opinion states the case.

Z. Baird and S. A. Huff, for the appellant.

G. S. Orth and E. H. Brackett, for the appellee.

By Court, BLACKFORD, J. This was an action of assumpsit brought by Corey against Jordan on the indorsement of a promissory note. The note was made by one Bean to the defendant for the payment of three hundred and seventy-three dollars, on the fifteenth of September, 1848, at the Lafayette branch of the State Bank of Indiana. The declaration alleges that the note was made without consideration. The defendant pleaded the general issue. Verdict and judgment for the plaintiff.

It appears that in May, 1847, the defendant executed to said Bean a general warranty deed, purporting to convey to him eight undivided tenths of two certain tracts of land, in consideration of one thousand three hundred and seventy-three dollars. One thousand dollars of the price were paid down, and the said note was given from the residue. It also appears that the defendant had no title to three of those eight tenths of said lands, except what he derived from a conveyance executed in February, 1847, by John Burns and Eleanor, his wife, Thomas Murphy and Mary, his wife, and William Coon and Margaret, his wife. The said married women having each a title by descent to one of those eight tenths.

The plaintiff contends that the last-mentioned conveyance is invalid as to said married women, because the certificates of their acknowledgments are defective. These certificates state that those married women were examined separate and apart from their husbands, as required by law. The objection made to the certificates is, that they do not state that the married women were examined without the hearing of their husbands.

The statute is as follows: "Sec. 40. The acknowledgment of the execution of any deed or conveyance by which a married

woman releases, etc., or by which the husband and wife convey the real estate of the wife, may be taken before any officer, etc.; but such acknowledgment shall not be taken by such officer, unless he shall first make known to her the contents and purport of such deed or conveyance, and she acknowledge, on a sep arate examination, separate and apart from him, and without the hearing of her husband, that she executed such deed or conveyance of her own free-will and accord, and without any coercion or compulsion from her husband; all of which shall be certified by such officer in his certificate of such acknowledg ment." "Sec. 42. No dower estate or interest whatever of ary married woman shall be barred, passed, or conveyed by any deed or conveyance purporting to be executed by her, unless the same shall be acknowledged, and such acknowledgmert certified as above provided:" R. S. 1843, p. 421.

There can be no doubt, we think, but that under this statute of 1843, the certificate of the acknowledgment of a married woman as to her execution of a deed, must show, by the facts stated in it, that she had been examined in the manner proscribed by the statute, or the deed, as to her, will not be valid. The certificates in question are defective for not showing that the married women were examined without the hearing of their husbands.

The defendant refers us to the case of Stevens v. Doe, 6 Blackf. 475. But that case was governed by the statute of 1824, whick differs materially from that of 1843, above cited. The case of Elevens v. Doe is, therefore, not applicable.

The transcript shows the following admissions of the defend ant, namely, "Three of the grantors in said deed C (the deed last above mentioned), viz., Margaret Coon, Mary Murphy, and Eleanor Burns, when said deed C was executed, and delivered to defendant Jordan, owned each in their own right, as heir at law of William Jordan, deceased, one undivided tenth of the fee-simple estate in said lands; and their estate in the same was and is, unless the same is conveyed by deed C, of more value than the amount of the note and interest sued on; and they were each and every of them at the date, acknowledgment, and delivery of said deed C, femes covert; and they are now living."

As the said estates of said married women were worth more than the amount of said note, it follows that if those estates were not conveyed to the defendant, and by him to Bean, the note was given without consideration.

According to the face of said certificates, the said estates of

said married women were not conveyed to the defendant. It appears that the court decided that they could not (the plaintiff objecting) allow the officers who made said certificates to insert in them at the trial the fact that the acknowledgments were made by said married women without the hearing of their husbands. We think that the officers had the right, and indeed that it was their duty, to correct at any time any mistake in their certificates. Such a certificate is an act in pais, which may be altered at any time by the officer who made it: Elliott et al. v. Peirsol et al., 1 Pet. 328. The certificate does not depend for its validity upon its being made matter of record. A deed without such a certificate as the statute requires can not be recorded. If the acknowledgments were really made by said married women without the hearing of their husbands, that fact might have been inserted in the certificates, at the trial, nunc pro tunc, by the officers who made them. The certificates, after such amendment, would have had the same effect, as respects this cause, as if they had at first been properly made.

The decision of the court below, therefore, relative to the amendment of said certificates, is erroneous.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded for further proceedings. Costs here.

AMENDING AND PERFECTING CERTIFICATE OF ACKNOWLEDGMENT.—The acknowledgment of a deed, executed by a person who is under no disability, is not essential to the validity of the deed. The execution and delivery of such a deed will pass the title just as effectually without as with an acknowl. edgment, and such execution and delivery may be proved by any competent evidence. The acknowledgment of a deed so executed is generally required to entitle it to be recorded. But it has reference merely to the proof of the execution, not to the force or effect of the instrument: Jackson v. Allen, 30 Ark. 110; Gray v. Ulrich, 8 Kan. 112; Dole v. Thurlow, 12 Met. 157; Gibbs v. Swift, 12 Cush. 393; Ilarrison v. McWhirter, 12 Neb. 152; Brown v. Manter, 22 N. H. 468; Elwood v. Klock, 13 Barb. 50; Knight v. Leary, 54 Wis. 459.

BUT THE DEED OF A FEME COVERT, NOT ACKNOWLEDGED in the mode prescribed by the statute, is absolutely void: Jourdan v. Jourdan, 11 Am. Dec. 724; Doe v. Howland, 18 Id. 445; note to Tiernan v. Poor, 19 Id. 230; Martin v. Dwelly, 21 Id. 245; Barnett v. Shackleford, 22 Id. 100; Payne v. Parker, 25 Id. 221; Carr v. Williams, 36 Id. 87; Dickinson v. Glenney, 27 Conn. 104; Hamar v. Medsker, 60 Ind. 413; Pribble v. Hall, 13 Bush, 61; Dodge v. Hollinshead, 6 Minn. 25. The common law rendered her incapable of conveying or of contracting to convey her interest in real estate, except by a written instrument duly acknowledged by her: Knowles v. McCamly, 10 Paige, 342. The certificate of acknowledgment of a deed of a married woman is, therefore, an essential part of its due execution, and unless there is a substantial compliance with the requirements of the statute, no title passes by such deed: Mason v. Brock, 12 Ill. 273; S. C., ante, 490; Elwood v.

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