grantor making the acknowledgment, he made the contents known to her by reading or otherwise. An act was afterwards passed which provided that "any deed heretofore executed pur- [* 377] suant to* law, by husband and wife, shall be received in evidence in any of the courts of this State, as conveying the estate of the wife, although the magistrate taking the ac- knowledgment of such deed shall not have certified that he read or made known the contents of such deed before or at the time she acknowledged the execution thereof." This statute, though with some hesitation at first, was held to be unobjectionable. The deeds with the defective acknowledgments were regarded by the legislature and by the court as being sufficient for the purpose of conveying at least the grantor's equitable estate; and if sufficient for this purpose, no vested rights would be disturbed, or wrong be done, by making them receivable in evidence as conveyances. Other cases go much farther than this, and hold that, although the deed was originally ineffectual for the purpose of conveying the title, the healing statute may accomplish the intent of the parties by giving it effect.2 At first sight these cases might seem 1 Chestnut v. Shane's Lessee, 16 Ohio, 599, overruling Connell v. Con- nell, 6 Ohio, 358; Good v. Zercher, 12 Ohio, 364; Meddock v. Williams, 12 Ohio, 377; and Silliman v. Cum- mins, 13 Ohio, 116. Of the dissent- ing opinion in the last case, which the court approve in 16 Ohio, 609-610, they say: "That opinion stands upon the ground that the act operates only upon that class of deeds where enough had been done to show that a court of chancery ought, in each case, to render a decree for a conveyance, as- suming that the certificate was not such as the law required. And where the title in equity was such that a court of chancery ought to interfere and decree a good legal title, it was within the power of the legislature to confirm the deed, without subjecting an indefinite number to the useless expense of unnecessary litigation." See also Lessee of Dulany v. Tilgh- Todd, 41 Md. 633. But the legis lature, it has been declared, has no power to legalize and make valid the deed of an insane person. Routsong v. Wolf, 35 Mo. 174. In Illinois it has been decided that a deed of re- lease of dower executed by a married woman, but not so acknowledged as to be effectual, cannot be validated by retrospective statute, because to do so would be to take from the woman a vested right. Russell v. Rumsey, 35 2 Lessee of Walton v. Bailey, 1 Binn. 477; Underwood v. Lilly, 10 S. & R. 101; Barnet v. Barnet, 15 S. & R. 72; Tate v. Stooltzfoos, 16 S. & R. 35; Watson v. Mercer, 8 Pet. 88; Carpenter v. Pennsylvania, 17 How. 456; Davis v. State Bank, 7 Ind. 316; Dentzel v. Waldie, 30 Cal. 138; Es- tate of Stickuoth, 7 Nev. 227; Gos horn v. Purcell, 11 Ohio, N. 8. 641. In the last case the court say: "The 3 to go beyond the mere confirmation of a contract, and to be at Rumsey, 35 Ill. 362; Alabama, &c. 2 In Gibson v. Hibbard, 13 Mich. 215, a check, void at the time it was given, for want of a revenue stamp, was held valid after being stamped as permitted by a subsequent act of Congress. A similar ruling was made in Harris v. Rutledge, 19 Iowa, 389. The case of State v. Norwood, 12 Md. 195, is still stronger. The curative statute was passed after judgment had been rendered against the right claimed under the defective instrument, and it was held that it must be applied by the appellate court. See post, p. 381. 8 Foster v. Essex Bank, 16 Mass. 245. See also Lycoming v. Union, 15 Penn. 166, 170. away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case."1 The operation of these cases, however, must be carefully restricted to the parties to the original contract, and to such other persons as may have succeeded to their rights with no greater equities. A subsequent bona fide purchaser cannot be deprived of the property which he has acquired, by an act which retrospectively deprives his grantor of the title which he had when the purchase was made. Conceding that the invalid deed may be made good as between the parties, yet if, while it remained invalid, and the grantor still retained the legal title to the land, a third person has purchased and received a conveyance, [379] with no notice of any fact which should * preclude his acquiring an equitable as well as a legal title thereby, it would not be in the power of the legislature to so confirm the original deed as to divest him of the title he has acquired. The position of the case is altogether changed by this purchase. The legal title is no longer separated from equities, but in the hands of the second purchaser is united with an equity as strong as that which exists in favor of him who purchased first. Under such circumstances even the courts of equity must recognize the right of the second purchaser as best, and as entitled to the usual protection which the law accords to vested interests.2 1 State v. Newark, 25 N. J. 197. Compare Blount v. Janesville, 31 Wis. 648; Brown v. New York, 63 N. Y. 239. In New York, &c. R. R. Co. v. Van Horn, 57 N. Y. 473, the right of the legislature to validate a void contract was denied on the ground that to validate it would be to take the property of the contracting party without due process of law. The cases which are contra are not examined in the opinion, or even referred to. 2 Brinton v. Seevers, 12 Iowa, 389; Southard v. Central R. R. Co., 26 N. J. 22; Thompson v. Morgan, 6 Minn. 292; Meighen v. Strong, 6 Minn. 177; Norman v. Heist, 5 W. & S. 171; Greenough v. Greenough, 11 Penn. St. 494; Le Bois v. Bramel, 4 How. 449; McCarthy v. Hoffman, 23 Penn. St. 508; Sherwood v. Flein ing, 25 Tex. 408; Wright v. Hawkins, 28 Tex. 452. The legislature cannot validate an invalid trust in a will, by act passed after the death of the testator, and after title vested in the heirs. Hilliard v. Miller, 10 Penn. St. 338. See Snyder v. Bull, 17 Penn. St. 58; McCarthy v. Hoffman, 23 Penn. St. 507; Bolton v. Johns, 5 Penn. St. 145; State v. Warren, 28 Md. 338. The cases here cited must not be understood as establishing any different principle from that laid down in Goshen v. Stonington, 4 Conn. 209, where it was held competent to validate a marriage, notwithstanding the rights of third parties would be incidentally affected. Rights of third par ties are liable to be incidentally affected more or less in any case in which a defective contract is made good; but If, however, a grantor undertakes to convey more than he possesses, or contrary to the conditions or qualifications which, for the benefit of others, are imposed upon his title, or in fraud of the rights of others whose representative or agent he is, so that the defect in his conveyance consists not in any want of due formality, nor in any disability imposed by law, it is not in the power of the legislature to validate it retrospectively; and we may add, also, that it would not have been competent to authorize it in advance. In such case the rights of others intervene, and they are entitled to protection on the same grounds, though for still stronger reasons, which exist in the case of the bona fide purchasers above referred to.1 this is no more than might happen in enforcing a contract or decreeing a divorce. See post, p. *384. Also Tallman v. Janesville, 17 Wis. 71. 1 In Shouk v. Brown, 61 Penn. St. 327, the facts were that a married woman held property under a devise, with an express restraint upon her power to alienate. She nevertheless gave a deed of the same, and a legislative act was afterwards obtained to validate this deed. Held void. Agnew, J.: "Many cases have been cited to prove that this legislation is merely confirmatory and valid, beginning with Barnet v. Barnet, 15 S. & R. 72, and ending with Journeay v. Gibson, 56 Penn. St. 57. The most of them are cases of the defective acknowledgments of deeds of married women. But there is a marked difference between them and this. In all of them there was a power to convey, and only a defect in the mode of its exercise. Here there is an absolute want of power to convey in any mode. In ordinary cases a married woman has both the title and the power to convey or to mortgage her estate, but is restricted merely in the manner of its exercise. This is a restriction it is competent for the legislature to remove, for the defect arises merely in the form of the proceeding, and not in any want of authority. Those to whom her estate descends, because of the omission of a prescribed form, are really not injured by the validation. It was in her power to cut them off, and in truth and conscience she did so, though she failed at law. They cannot complain, therefore, that the legislature interferes to do justice. But the case before us is different. [The grantor] had neither the right nor the power during coverture to cut off her heirs. She was forbidden by the law of the gift, which the donor imposed upon it to suit his own purposes. Her title was qualified to this extent. Having done an act she had no right to do, there was no moral obligation for the legislature to enforce. Her heirs have a right to say ... the legislature cannot take our estate and vest it in another who bought it with notice on the face of his title that our mother could not convey to him.' The true principle on which retrospective laws are supported was stated long ago by Duncan, J., in Underwood v. Lilly, 10 S. & R. 101; to wit, where they impair no contract, or disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, which do not vary existing obligations contrary to their situation when entered into and when prosecuted." In White Mountains R. R. Co. v. White Mountains R. R. We have already referred to the case of contracts by municipal corporations which, when made, were in excess of their authority, but subsequently have been confirmed by legislative action. If the contract is one which the legislature might originally have authorized, the case falls within the principle above laid down, and the right of the legislature to confirm it must be recognized.1 This principle is one which has very often been acted upon in the case of municipal subscriptions to works of internal improvement, where the original undertaking was without authority of law, and the authority given was conferred by statute retrospectively.2 It has not usually been regarded as a circumstance of importance in these cases, whether the enabling act was before or after the corporation had entered into the contract in question; and if the legislature possesses that complete control over the subject of taxation by municipal corporations which has been declared in Co. of N. H., 50 N. H. 50, it was decided that the legislature had no power, as against non-assenting parties, to validate a fraudulent sale of corporate property. In Alter's Appeal, 67 Penn. St. 341, s. c. 5 Am. Rep. 433, the Supreme Court of Pennsylvania declared it incompetent for the legislature, after the death of a party, to empower the courts to correct a mistake in his will which rendered it inoperative - the title having already passed to his heirs. But where it was not known that the decedent left heirs, it was held competent, as against the State, to cure defects in a will after the death, and thus prevent an escheat. Estate of Sticknoth, 7 Nev. 229. 1 See Shaw v. Norfolk R. R. Corp., 5 Gray, 179, in which it was held that the legislature might validate an unauthorized assignment of a franchise. Also May v. Holdridge, 23 Wis. 93, and cases cited, in which statutes authorizing the reassessment of irregular taxes were sustained. In this case, Paine, J., says: "This rule must of course be understood with its proper restrictions. The work for which the tax is sought to be assessed must be of such a character that the legislature is authorized to provide for it by taxation. The method adopted must be one liable to no constitutional objection. It must be such as the legislature might originally have authorized had it seen fit With these restrictions, where work of this character has been done, I think it competent for the legislature to supply a defect of authority in the original proceedings, to adopt and ratify the improvement and provide for a reassessment of the tax to pay for it." And see Brewster . Syracuse, 19 N. Y. 116; Kunkle v. Franklin, 13 Minn. 127; Boyce v. Sinclair, 3 Bush, 264; Dean v. Borchsenius, 30 Wis. 236; Stuart v. Warren, 37 Conn. 225. A city ordinance may be validated retrospectively. Truchelut v. Charleston, 1 N. & McC. 227. 2 See, among other cases, McMillan v. Boyles, 6 Iowa, 330; Gould v. Sterling, 23 N. Y. 457; Thompson v. Lee County, 3 Wall. 327; Bridgeport . Housatonic R. R. Co., 15 Conn. 475; Board of Commissioners v. Bright, 18 Ind. 93; Gibbons v. Mobile, &c. R. R. Co., 36 Ala. 410. |