Opinion of the court.

to have been done by the feme covert must have been exactly and specifically done.

It is objected that the parol proof tends to contradict the official certificate of acknowledgment, and cases are cited in support of this objection. But they have no application. Here is no attempt to aid a defective certificate of acknowledgment, as in some of the cases cited. Nor is it an attack,

by parol proof, upon a perfect certificate. It is simply proof of what the instrument was which was so acknowledged and certified; that it was not then the instrument which is produced by the complainant.

Mr. Justice NELSON delivered the opinion of the court. By the laws of Minnesota, an acknowledgment of the execution of a deed before the proper officers, privately and apart from her husband, by a feme covert, is an essential prerequisite to the conveyance of her real estate or any interest therein. And she is disabled from executing or acknowledging a deed by procuration, as she cannot make a power of attorney. These disabilities exist by statute and the common law for her protection, in consideration of her dependent condition, and to guard her against undue influence and restraint.

other

Now, it is conceded, in this case, that the instrument Mrs. Foster signed and acknowledged was not a deed or mort gage; that, on the contrary, it was a blank paper; and that in order to make it available as a deed or mortgage, it must be taken to have been signed and acknowledged with the design to have the blanks filled by the husband, or some person, before the delivery. We agree-if she was competent to convey her real estate by signing and acknowledging the deed in blank, and delivering the same to an agent, with an express or implied authority to fill up the blank and perfect the conveyance-that its validity could not well be controverted. Although it was, at one time. doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrum ent, the better opinion, at this day, is that the power is sufficient.

Opinion of the court.

But there are two insuperable objections to this view in the present case. First, Mrs. Foster was disabled in law from delegating a person, either in writing or by parol, to fill up the blanks and deliver the mortgage; and, second, there could be no acknowledgment of the deed within the requisitions of the statute until the blanks were filled and the instrument complete. Till then there was no deed to be acknowledged. The act of the feme covert and of the officers were nullities, and the form of acknowledgment annexed as much waste paper as the blank mortgage itself, at the time of signing.

It is insisted, however, that Mrs. Foster should be estopped from denying that she had signed and acknowledged the mortgage. The answer to this is, that to permit an estoppel to operate against her would be a virtual repeal of the statute that extends to her this protection, and also a denial of the disability of the common law that forbids the conveyance of her real estate by procuration. It would introduce into the law an entirely new system of conveyances of the real property of feme coverts. Instead of the transaction being a real one in conformity with established law, conveyances, by signing and acknowledging blank sheets of paper, would be the only formalities requisite. The consequences of such a system are apparent, and need not be stated.

There is authority for saying, that where a perfect deed has been signed and acknowledged before the proper officer, an inquiry into the examination of the feme covert, embracing the requisites of the statute, as constituting the acknowledg ment, with a view to contradict the writing, is inadmissible; that acts of the officer for this purpose are judicial and conclusive. We express no opinion upon the soundness of this doctrine, as it is not material in this case. The case before us is very different. There is no defect in the form of the acknowledgment, or in the private examination. No inquiry is here made into them. The defect is in the deed, which it is not made the duty of this officer to write, fill up, or examine, and for the legal validity of which he is no way responsible. The two instruments are distinct. The

Opinion of the court.

deed may be filled up without any official authority, and may be good or bad. The acknowledgment requires such autho rity. The difficulty here is not in the form of the acknowledgment, but that it applied to a nonentity, and was, therefore, nugatory. The truth is, that the acknowledgment in this case might as well have been taken and made on a separate piece of paper, and at some subsequent period attached by the officer, or some other person, to a deed that had never been before the feme covert. The argument in support of its validity would be equally strong.

Our opinion is that, as it respects Mrs. Foster, the mortgage is not binding on her estate.

We may regret the misfortune of the complainant from the conclusion at which we have arrived; but it seems to us impossible to extend the relief prayed for by the bill of foreclosure, without abrogating the protection which the law for ages has thrown around the estates of married women. Losses of the kind may be guarded against, on the part of dealers in real estate, by care and caution; and we think that this burden should be imposed on them, rather than that a sacrifice should be made of the rights of a class who are dependent enough in the business affairs of life, even when all the privileges with which the law surrounds them are left unimpaired.

DECREE AFFIRMED.

N. B. A decree made below, on a cross-bill ordering the mortgagee to cancel the wife's name on the mortgage, was affirmed here. The cross-bill set up, substantially, the facts disclosed in the answer to the original bill; and the proofs taken in each

case were the same.

MILES V. CALDWELL.

1. The established rule, that where a matter has been once heard and determined in one court (as of law), it cannot be raised anew and reheard in another (as of equity), is not confined to cases where the matter is made patent in the pleadings themselves. Where the form of issue in the trial, relied on as estoppel, is so vague (as it may be in an action of ejectment), that it does not show precisely what questions were before

Statement of the case.

the jury and were necessarily determined by it, parol proof may be given to show them.

2. The reasons which rendered inconclusive one trial in ejectment, have force when the action is brought in the fictitious form practised in Eng. land, and known partially among ourselves; but they apply imperfectly, and have little weight, when the action is brought in the form now usual in the United States, and where parties sue and are sued in their own names, and the position and limits of the land claimed are described. They have no force at all in Missouri, where the modern form is prescribed, and where, by statute, one judgment is a bar.

3. A State statute, enacting that a judgment in ejectment-provided the action be brought in a form which gives precision to the parties and land claimed-shall be a bar to any other action between the same parties on the same subject-matter, is a rule of property as well as of practice, and being conclusive on title in the courts of the State, is conclusive, also, in those of the Union.

MILES brought ejectment against Caldwell, in the Circuit Court of Missouri; the action being brought, not in the fictitious form, still sometimes used in the United States, but in the form now more frequent with us, in which the parties actually suing appear in their proper names, as Thomas Miles against William Caldwell, and where the land claimed is described as by metes or bounds, or by both; the action being entitled, in Missouri, “trespass in ejectment." Both parties in the present suit claimed under one Ely, who, in 1837, and prior to that time, was owner of the land; Caldwell claiming under a mortgage made by Ely to Gallagher in that year; and a subsequent release by Ely;* Miles, under a mortgage of 1838, by Ely to Carswell and McClellan, and a foreclosure and sale founded on it. The defendant, Caldwell, in that ejectment, contended that his own title, under the mortgage to Gallagher, was good; and that the title of Miles, under the mortgage to Carswell and McClellan, was bad, as having been made in fraud of creditors. Miles, the

*The mortgage to Gallagher was never foreclosed. The mortgagee had obtained a judgment against Ely on a note which the mortgage was given to secure, and under an exccution issued on that judgment the land was sold, and by several mesne conveyances the complainant became invested with such title or claim as that sale could confer. Having some doubts of the validity, under the laws of Missouri, of this title, Caldwell procured from Ely, the mortgagor, the release above mentioned.

Statement of the case.

plaintiff, on the other hand, contended that the mortgage to Gallagher had been satisfied; and that his own mortgage was not fraudulent, but given for a valid debt. Both these points-that is to say, the point whether Gallagher's mortgage had or had not been paid, and whether that of Carswell and McClellan was fraudulent or was good-were submitted to the jury, who, on instructions from the court, passed upon them, finding a verdict for the plaintiff, Miles. Indeed, as to the question of fraud, there was an express agreement, now before this court, that the mortgage to Carswell and McClellan was, in the action of ejectment, impeached for fraud; and the record of that suit also established the fact that the question, whether the mortgage to Gallagher had been paid off in full, was submitted to them. But neither of these points were points put in issue by the pleadings themselves; nor, indeed, was it practicable so to put them in issue in the action,—that of ejectment.

In this state of the facts, Caldwell, wishing, as he represented, to have his title "quieted," filed his bill on the equity side of the court, where the judgment at law had been obtained, to enjoin execution on the judgment, and to prevent Miles's taking possession of the land.

The grounds of the complainant's application were these: 1. That his title was good and valid, founded on the senior mortgage; and, being the true legal title, should prevail.

2. That the mortgage to Carswell and McClellan was fraudulent, because made for the purpose of hindering and delaying creditors; and that a court of equity should decree it to be void, and prevent its being used to the injury of complainant.

3. That he had made valuable improvements, in good faith, on the land, supposing it to be his own, for which he was entitled to compensation before it was taken from him. It is necessary here to say, that in Missouri one of the Revised Statutes enacts, that in ejectment, as in other actions authorized by it, a judgment, except one of nonsuit, "shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject-matter."