Williams v. Robson.

proof to the contrary, we will presume that the attestation is true. That the certificate of the justice of the peace taking the acknowledgment of the deed is sufficient, although it fails to state that he read or otherwise made known to the wife the contents of the deed, is settled in Chestnut v. Shane's Lessee, 16 Ohio, 599, and Card v. Patterson, decided at the last term of this court, and not yet reported.

*But it is contended, by complainant's counsel, that the [514 husband and wife should both have been present at the time they acknowledged the deed, and that a joint as well as a separate acknowledgment by the wife, is necessary to give the deed validity so far as she is concerned. And in this case no such joint acknowledgment appears, to have been made. The only acknowledgment by the wife was at a subsequent time, and when the husband was not present.

We can see nothing in the phraseology of the law which requires a joint acknowledgment of the deed by husband and wife. The language of the second section, which regulates acknowledgments by husband and wife, is identical with the language of the first section, which regulates acknowledgments generally. In both, the words are,"such signing and sealing shall be acknowledged by them, in the presence of two subscribing witnesses, . . and also be acknowledged before a judge," etc. As well may it be contended, that, where there are two grantors, not husband and wife, their acknowledgment must be joint, and must be certified accordingly, as to apply the same rule to husband and wife. There is equal warrant (so far as the language of the statute is concerned) for either claim. The argument for a joint acknowledgment of the deed, by husband and wife, must rest upon some ground of policy or rule of law other than the letter of the statute.

Is there any such rule either of policy or law?

The wife's separate deed is void. To give it effect, the husband must join in it. For what purpose, but to express his assent to the conveyance? And his assent is expressed no more completely by appearing, together with his wife, to acknowledge the deed before a magistrate, than it is by acknowledging it separately. It is enough that he joins in it as grantor.

To give effect to the wife's deed, she must also acknowledge it *separately from her husband. We can see no other possible [515 object of this provision of our law, but to protect the wife from the

Williams v. Robson.

influence of the husband. And such is the plain declaration of the statute, which requires her to acknowledge that she executed the deed" without fear or coercion of her husband."

And this end is quite as effectually accomplished where the acknowledgment of the husband and wife is taken separately, as when the acknowledgment of both is first taken jointly, and then that of the wife separately.

The officer taking the acknowledgment in this case, literally complied with the requirements of the statute, in certifying the acknowledgment of the wife, together with that of the husband, on the same sheet on which the deed was written or printed, etc.; and we can see no reason, either in the language or policy of the statute, why a joint as well as a separate acknowledgment should be required. And, in this view of the case, we are supported by the cases of Montgomery v. Hobson, Meigs, 437, and Ford v. Gregory's Heirs, 10 B. Mon. 175, both of which present strong proofs of analogy to the present case.

2. In the second place, it is alleged, by the complainant, that she was fraudulently entrapped into the signing of the deed to Pearson; that she never did, in fact, acknowledge it in any manner; and that the certificate of acknowledgment is false and fraudulent.

On this point it is only necessary to say that the proof does not satisfy us of the truth of these allegations. Britt, one of the witnesses to the deed, swears, in effect, simply that he does not recollect the execution of the deed by any one, nor the attestation by himself. Having never seen the deed, after its execution, and it not being before him at the time his testimony was taken, his forgetfulness, after the lapse of so long a time, is in no way remark516] able. *A daughter of the complainant undertakes to impeach the attestation and acknowledgment, by a somewhat minute detail of facts and conversations occurring more than thirty years prior to the time her testimony was taken, and the manner of her testimony is not such as to strengthen our confidence in the accuracy of her memory. The fact, too, that the complainant slept on her claim some eighteen years after the death of her husband, affords at least some ground of presumption against its validity.

The conclusion of law and fact, to which we have already arrived render it unnecessary to examine the other questions made in the argument. Bill dismissed. BARTLEY, C. J., and SWAN, BOWEN, and SCOTT, JJ., concurred.

Reynolds v. Tucker and wife.

DANIEL H. REYNOLDS v. CHARLES H. TUCKER AND CYNTHIA TUCKER, HIS WIFE.

1. In an action of slander for words spoken against the chastity of the plaintiff's wife, it is competent for the defendant, under the general issue, in mitigation of damages, to prove that the wife and an unmarried man had lived together alone in one house, where a knowledge of such mode of living had come to the defendant before the speaking of the words.

2. If the court refuse to permit competent testimony to go to the jury, the error in such refusal is not cured by the consent of the adverse party afterward to go into the inquiry proposed by the rejected evidence.

THIS cause comes into this court upon a petition in error to reverse the decision of the district court of Lorain county, made at the September term, 1855. The original action was case for slanderous words, and was commenced in October, 1852.

*The actionable words charged in the declaration were, that [517 said Cynthia was a whore, and defendant could prove it by Thomas Goman, and that she was Thomas Goman's concubine. That she was a whore before she came from Vermont, and was still a common whore for anything that came along.

The general issue was pleaded, and the case tried before a jury, and a verdict of six dollars rendered in favor of defendants in error, on which the district court gave judgment.

After the plaintiffs below had given proof of the speaking of the words, the defendant offered to prove that plaintiffs had lived. together alone in one house before they were married; which fact was well known to the defendant below, at the time they so lived together, which was eight or nine years ago; to which evidence the plaintiffs below objected, and the court sustained the objection (but subsequently, while the same witness was under cross-examination, the plaintiffs below offered to go into the inquiry, which was declined by the defendant), and refused to allow the evidence to go to the jury. The court held that the defendant below could not prove particular acts of misconduct on the part of the plaintiff, unless they were such as related to the circumstances connected with the words spoken by the defendant, but must be confined in his proof to general reports of her character for chastity in the neighborhood, and to general reports of her having lived with her husband under

Reynelds v. Tucker and wife.

suspicious circumstances before marriage; and that defendant could not prove, as a fact, that she had lived with her husband under suspicious circumstances before her marriage, no circumstance connected with that having been referred to by the defendent in the words spoken by him.

To the refusal of the court to admit this evidence, the defendant below excepted.

518] *Stevenson Burke, for the plaintiff in error:

The court below erred in ruling out the evidence offered by defendant below, and also in restricting the defendant below in his proof, to the showing of general reports, etc. The following cases are in point: Haywood v. Foster, 16 Ohio, 88; Bush v. Prosser, 1 Kernan, 347; DeWitt v. Greenfield, 5 Ohio, 325; Knobell v. Fuller, Peakes' additional cases, 137; Williams v. Miner, 18 Conn. 464; Rigdon v. Wolcott, 6 Gill & Johnson, 413; also Wilson v. Apple, 3 Ohio, 270.

H. D. Clark (with whom was J. Myres), for defendant in error, cited 21 Pick. 404; 13 Johns. 475; 1 Pick. 1; 2 Ib. 376; Miller v. Spencer, Holt's Nisi Prius cases, 535; 3 Eng. Com. Law, 177.

BOWEN, J. For the purpose of mitigating damages it was competent for the defendant, under the general issue, to prove facts, connected with the speaking of the words, which were from the nature of them, calculated to induce the belief, on his part, that the plaintiff's was wife guilty of the impropriety imputed to her, provided such proof did not establish a justification. If an unmarried man and woman live alone in the same house, it may and very likely would raise an inference unfavorable to the latter's chastity. It may induce a belief that adultery has been committed by her, while holding that relation. Still, however, it does not convict her of the act. Such mode of living may be entirely innocent and proper, adopted and continued for the most upright purpose. The whole reason for the rule for admitting such evidence, is to relieve the defendant from the consequences which attach to malice, in the speaking of the words. He may show particular acts of the plaintiff which, unexplained, gave him just reason to believe in the truth 519] of the declarations which he uttered; but when explained and understood, may be found to be compatible with the plaintiff's

Reynolds v. Tucker and wife.

innocence. It is permitted upon the ground that the proof, when introduced, may serve to show that the defendant, in making the charge, was mistaken-that he misconstrued the act or conduct of the party, by supposing it to be criminal, while, in fact, it was not. When the testimony can have no other effect than to make apparent the plaintiff's guilt, and prove the truth of the words spoken, its introduction to the jury must necessarily tend to justify the speaking, and not to mitigate damages, by showing the absence of malice. To be competent for the former purpose, the facts relied on must be plead specially, and can not be given in evidence under the general issue. Such is the rule in Wilson v. Apple, 3 Ohio, 270; DeWitt v. Greenfield, 5 Ohio, 225; Haywood v. Foster, 16 Ohio, 88. The fact which the defendant offered to prove, was erroneously excluded from the jury.

The evidence having been improperly rejected by the court below, was the error cured by the offer of the plaintiffs, while the witness was on cross-examination, to go into the inquiry which the defendant's question proposed?

The error of the court consisted in ruling against the competency of the evidence. The consent of the party in whose favor the ruling was made, afterward to admit the evidence, could not relieve the party from the effect of the erroneous decision of the court. The jury would receive it with knowledge that the court had pronounced it incompetent, and it would go to them under the stamp of judicial disapproval. It can hardly be said, in such case, that the party would derive the same benefit from it that he would have done, had he been allowed to examine the witness, as of right, upon the subject, by the sanction of the judges. When the court had expressed its opinion that the evidence should not be considered by the jury, the latter would scarcely give it any consideration, [520 when admitted by the mere favor of the other side.

The consent of the plaintiffs to go into the examination, which was proposed by the defendant, could not restore the latter to the same condition before the jury, that he would have sustained, if the court had permitted him, as of right, to make the inquiry of the witness.

Judgment reversed, and cause remanded.

BARTLEY, C. J., and SCOTT, J., concurred.