The court does not hesitate to concur in holding the deed to be ineffectual to pass the estate of Mrs. Malloy in the land, for want of a due acknowledgment and privy examination on her part.
As the commission which issued was directed to a single commissioner, and with authority to him, alone, to receive her acknowledgment and take her private examination, there can be no pretence (nor was there any made upon the argument) that the probate was valid under the third and fourth sections of the act of 1751 (Rev. Stat., ch. 37, §§ 10 and 11), in which provision is made for taking the probate of the deed of a married woman, who, by reason of her infirmity, is unable to travel to the court: for the express direction of the statute in such case is, that the commission shall issue, and the authority confided in, not less than two commissioners.
The only other provision, at that time made, for the probate of deeds of femes covert before the county courts, was that contained in the second section of the same act (Rev. Stat., ch. 37, § 9); and contrasted with it, the mode of proceeding with the deed in question was fully as defective and inoperative as under the sections first referred to.
The provisions of this section 'were all brought under review in Burgess v. Wilson, 2 Dev., 306, and the construction which was then put upon it, lias been ever since accepted by the courts and the bar as the true one. It was there held essential, in order to convey the lands of a married woman capable of attending the court, that her deed should be first personally acknowledged by both her husband and herself in open court, and that her private examination should be then and there taken, within the verge of the court, by some one sitting as a member thereof; that it was intended that the acknowledgment and the examination should be taken together (or rather as one continuous transaction), the former in the hearing of the whole court, and the latter"within its precincts; but that neither should ever be taken by a single justice, and as a matter in pais.
*309The reason of ail this particularity was said to be to avoid, as far as possible, giving any opportunity for collusion between the husband and the justice who might be appointed to conduct the examination.
It is plain that the deed of the wife in this instance was never acknowledged by her, or her consent thereto ascertained, except before a single justice, and at her own home, admitted to be eighteen miles from where the court was sitting. True, the cleric's commission recites an acknowledgment as having been made by her before the courtj but the records as made at both January and April terms — the one preceding and the other succeeding the taking of her private examination — positively contradict this, and put it beyond dispute that the only acknowledgment which was made in court was that of the husband alone; and in the case just cited it was distinctly said, that wherever the certificate of the clerk was contradicted by the record, it must be controlled thereby. It is evidently impossible, under such circumstances, and when the defect in the proceeding so plainly appears of record, to give any force to the maxim, omnia preesu-muntur rite esse acta. To do so, would be to close our eyes to the well established truth, and to adhere to falsity simply because of its antiquity.
The court can perceive no error in the judgment of the court below, and the same is therefore affirmed.
No error. Affirmed.