overreaches the deed to C. and the acknowledgment of the deed to B. is not a fraudulent act. On the first Suppose A. makes a bona fide deed to B. for valuable consideration, on the 30th of May. of June A. commits an act of treason. of June he acknowledges the deed to B. not forfeited by the treason of A. If an indictment had been found for forging this deed, and to support the indictment, evidence had been given of the forgery of the acknowledgment only, would that have supported the indictment? If a declaration upon this deed, stating it to have been made on the 14th of June, had been drawn, would it have been supported by producing in evidence this deed signed, sealed and delivered on the 30th of May? This deed intends to convey choses in action and personal effects as well as lands. As to the former, the deed is good without acknowledgment; for as to the choses in action, the deed without acknowledgment is an equitable assignment, and if acknowledged it would have amounted to nothing more. But if the assignees are entitled, they must take the bankrupt's estate subject to all the equity of others. 2 Vesey, sen. 585. 633. Cooke's Bankrupt Law, 203. Taylor v. Wheeler, 2 Vern. 564. Courts of law will protect equitable rights; as in the case of Winch and Keeley, 1 Term Rep. 619. where the plaintiff having assigned his right of action to Searle, and having become bankrupt, was still held able to support the action for the benefit of Searle, notwithstanding the assignment of his effects under the bankrupt laws. *And by the authority of ex parte Byas, 1 Atk. 124, if the assignees had received the money due to Robb, the bankrupt, they would have been obliged to pay it over to Wood, the plaintiff in error, instead of receiving it from him. The deed is not fraudulent in se; and would not now be questioned if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an absolute deed, nor was it made on any secret trust, or for his own benefit. The only thing which can be alleged against it is, that it gives a priority to Wood V. Owings. *246 Wood v. Owings. *247 some of his creditors, and this he had a clear right to do both in law and equity. It was not made in secret; it holds up no false colours; it enables him to receive no false credit. He might have sold the property for ready money, and paid any one of his creditors in full. But making a deed of trust, he has prevented a sacrifice of his property, whereby it is competent to satisfy a greater number of his creditors, and he is himself rendered more able to pay the residue of his debts by his future industry. The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly. It ought not to be extended beyond the letter of the law. Cooke's B. L. 67. Cowp. 409. 427, 428. 5 Term Rep. 575. 7 Term Rep. 509. Fowler v. Padget. But however fraudulent the deed might have been, yet it was no act of bankruptcy, under the act of congress; because not executed after the 1st of June; unless the acknowledgment can be considered as the making of the deed. And if it was not an act of bankruptcy, the title of the defendants in error fails. Harper, contra. The act of bankruptcy charged, is the making a fraudulent deed after the 1st of June, 1800. The counsel for the plaintiff in error having abandoned the second point which was made, and strongly contended for, in the court below, the only question now to be considered is, whether the deed was made before or after the 1st of June. *A deed at common law is an instrument in writing, signed, sealed and delivered. If it be signed and sealed, but not delivered, it is no deed; and the reason is, that until the last act of volition is performed, there is still a power of recalling it. The cases from the English books respecting the sta tute of enrolments are not applicable to the law of Maryland respecting acknowledgment. The English laws only protect creditors and purchasers without notice. But the law of Maryland is intended to protect the maker of the deed himself, to prevent forgeries and fraud, and to give a further solemnity, that the grantor may have more time to reflect, and to secure himself from being suddenly entrapped. The law therefore superadds to signing, sealing and delivery, a further act of volition. It is said that a court of equity will set up such a deed; true, it would, in certain cases; but not because it is a paper signed and sealed; but because it is a contract for a valuable consideration. But this deed would never have been supported in a court of equity, if it had not been completely valid at law. Suppose Robb had refused to acknowledge it; and application had been made to chancery to carry the deed into effect; it would have been refused. Can a deed be said to be made when it is not complete? It was not complete on the 30th of May; something was still to be done, of which it would have been necessary to apply to a court of chancery to compel the performance. If acknowledgment is necessary by statute law, it is the same as if necessary by common law. The one is as binding as the other. They are both derived from the same source, but evidenced in different modes. Signing, sealing and delivery only are necessary by the common law, but acknowledgment also is necessary by the statute. The deed of land was an act of bankruptcy, and prevented the operation of the deed as a deed of personal estate. The deed for the land and for the chattels was executed eodem instanti. *CHASE, J. The effect of an acknowledgment is to prevent the grantor from pleading non est factum. Harper. By the law of England acknowledgment is not necessary. By the law of Maryland it is a necessary part of the conveyance, and can no more be dispensed with than the signing, sealing and delivery. Having signed and sealed, the grantor may refuse to deliver; so, having signed, sealed and delivered, he may refuse to acknowledge, and in either case it is no deed. The deed, therefore, was not made till the 14th of June. Martin, in reply. Acknowledgment is absolutely necessary in England, before enrolment. Viner, tit. Enrolment, p. 443. "No Wood V. Owings. * 248 Wood V. 249 deed, &c. can be enrolled, unless duly and lawfully acknowledged, cites Co. Litt. 225. b." The acknowledgment is the warrant for the enrolment. An acknowledgment in Maryland has no greater effect than in En gland. There was an enrolment at common law, for safe custody, it makes an estoppel, and the party cannot plead non est factum. Per Holt, Ch. J. Comb. 248. Smart v. Williams, cited in Viner, tit. Enrolment, p. 444. And in p. 445. it is said, "Enrolment of a deed is to no other purpose but that the party shall not deny it afterwards," and cites Br. Faits Enrol. pl. 4. And in Sav. 91. Holland v. Downes, cited in Viner, tit. Enrolment, p. 446, 447. it is said "the sealing and delivery is the force of such deeds, as deeds of bargain and sale, &c. and not the enrolment." And again, in the same case, Bonds, indentures and deeds take their force by the delivery; so there is a perfect act before the conusance is taken, and before any enrolment. The enrolment could not be made upon proof by witnesses. The acknowledgment was the only authority. Harper. 66 The ac The enrolment is the act of the grantee. knowledgment is the last act of volition of the grantor. It is wholly voluntary; he may refuse; and if he does, the deed has no effect. In England, the acknowledgment is *a regulation of the courts, not a provision of the statute of enrolments. That statute is different from the act of Maryland; the latter expressly requires the acknowledgment, and no estate passes at law without it. It therefore becomes as much a requisite of a deed as sealing or delivery. It is not only an absolute requisite that the deed should be acknowledged, but the courts of Maryland have been very strict in requiring it to be done precisely in the mode prescribed. In the case of Hall v. Gittings, decided in the court of appeals in Maryland, the case was, that the grantor resided in Anne Arundel county, but the deed described him as a resident of Baltimore county, where the lands were situated. The acknowledgment was made in Prince George's county. This acknowledgment was decided by the court of appeals not to be good, and the cause was lost upon that ground, although the deed was twenty-five years old, and possession had been quietly enjoyed under it. The error was discovered by the court themselves, and had not been suggested by the counsel at the trial. It has also been decided that the acknowledgment of a feme covert must be precisely in the form prescribed by the act. This shows the great importance of acknowledgments in Maryland. Martin, in reply. The acknowledgment in England is not a regulation of the courts only, but is a principle of the common law relative to enrolment, which existed before the statute of enrolments. It was known, at the time of enacting that statute, that by the common law, an acknowledgment was a prerequisite to enrolment. It was not necessary, therefore, that it should be expressly prescribed by sta tute. Acknowledgment and enrolment was a proceeding well known and understood, and was not originated by the statute of 27 Hen. VIII. The statute only applies the process to new cases, or makes it necessary where before it was only voluntary. As to the case of a feme covert, she could not, by the *common law, convey her land, except by fine and recovery. But the law of Maryland authorized her to do it in a certain mode. That mode must, therefore, be strictly pursued. March 1st. The Chief Justice delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the fourth circuit sitting at Baltimore, in the following case. On the 30th of May, 1800, William Robb, who was then a merchant, carrying on trade and merchandise, in the state of Maryland, signed, sealed and delivered to Gabriel Wood, an instrument of writing, purporting to convey to the said Gabriel his real and personal estate, in trust, to secure him from certain notes and acceptances made by him, on account of the said Robb, and afterwards, in trust for other creditors in the deed mentioned. This deed was acknowledged on the 14th of June; and was then enrolled according to the laws of Maryland. |