The authorities are almost unanimous that a deed by a married woman improperly acknowledged is void. (1 Bish. Married Women, § 589; Knowles v. McCamly, 10 Paige, 342; Steele v. Thompson, 14 Binn. 84; Baxter v. Bodkin, 25 Ind. 172; Barry v. Donley, 25 Tex. 737; Willes v. Gattman, 53 Miss. 721; Marriner v. Saunders, 5 Gilm. 125; Barrett v. Tewksbury, 9 Cal. 13; Ewald v. Corbett, 32 Cal. 493; McLeran v. Benton, 43 Cal. 467; Morrison v. Wilson, 13 Cal. 498; Leonis v. Lazzarovich, 55 Cal. 52, and cases there cited.)
If the deed is void, it certainly cannot be reformed as against Anna Ainsworth and her grantees, either at law or in equity.
Besides the cases cited supra, the following are in point: Leftwitch v. Neal, 7 W.Va. 569; Hamar v. Medsker, 60 Ind. 413; Martin v. Davelly, 6 Wend. 1; Wentworth v. Clark, 33 Ark. 432; Callahan v. Callahan, 4 Tex. 61; Butler v. Buckingham, 5 Day, 492; Lane v. McKeen, 15 Me. 304; Russell v. Ramsey, 35 Ill. 362; Dickinson v. Glenney, 27 Conn. 104; Selover v. A.R. Co. 7 Cal. 266; Barrett v. Tewksbury, 9 Cal. 13; Leonis v. Lazzarovich, 55 Cal. 52.
As regards the admission of parol evidence, the following authorities are directly in point; all holding that a defective acknowledgment of a married woman's deed cannot be helped by parol evidence. ( Russell v. Ramsey, 35 Ill. 362; Trimmer v. Heagy, 16 Pa. St. 484; Hayden v. Wescott, 11 Conn. 129; Elliott v. Peirsol, 1 Peters, 328; Elwood v. Klock, 13 Barb. 50; O'Ferrall v. Simplot, 4 Iowa 381; Wilkinson v. Getty, 13 Iowa 157; Looney v. Adamson, 48 Tex. 619; Jourdan v. Jourdan, 9 Serg. & R. 268; 1 Bish. Married Women, § 591; Landers v. Bolton, 26 Cal. 408.)
In all dealings with married women the maxim caveat emptor must be applied, and the doctrine of estoppel in pais does not apply. ( Morrison v. Wilson, 13 Cal. 495.)
OPINION
PER CURIAM.
The certificate of acknowledgment was defective, in that it did not state that the notary, upon an examination without the hearing of her husband, made the married woman acquainted with the contents of the instrument. Section 1186 of the Civil Code requires that such separate examination must embrace as well the making her acquainted with the contents of the instrument as the acknowledgment by her; and section 1191 gives the form of the certificate in very plain language. The court, therefore, did not err in sustaining defendants' objection to the admission of the mortgage in evidence.
When the acknowledgment is properly made, but defectively certified, a party interested may have an action to correct the certificate. ( § 1202, Civ. Code.) We see no objection to the joining this action with the action for foreclosure. The court should have permitted plaintiff to amend her complaint and prove, if she could, that the acknowledgment was actually taken in compliance with the statute, and have judgment correcting the certificate.
Judgment and order reversed and cause remanded for proceedings in accordance with this opinion.