After the courts of the State of Pennsylvania had decided that the relation of landlord and tenant could not exist in that State under a Connecticut title, a statute was passed which provided that the relation of landlord and tenant "shall exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants as between other citizens of this commonwealth, on the trial of any case now pending or hereafter to be brought within this commonwealth, any law or usage to the contrary notwithstanding." In a suit which was pending and had been once tried before the statute was passed, the statute was sustained by the Supreme Court of that State, and afterwards by the Supreme Court of the United States, into which last-mentioned court it had been removed on the allegation that it violated the obligation of contracts. As its purpose and effect was to remove from contracts which the parties had made a legal impediment to their enforcement, there would seem to be no doubt, in the light of the other authorities we have referred to, that the conclusion reached was the only just and proper one.1

In the State of Ohio, certain deeds made by married women were ineffectual for the purposes of record and evidence, by reason of the omission on the part of the officer taking the acknowledgment to state in his certificate that, before and at the time of the 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 pursuant to [* 377] * 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 acknowledgment 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

149; Wood v. Kennedy, 19 Ind. 68; Washburn v. Franklin, 35 Barb. 599; Parmelee v. Lawrence, 48 Ill. 331. The case of Gilliland v. Phillips, 1 S. C. N. s. 152, is contra; but it discusses the point but little, and makes no reference to these cases.

Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 380. And see Watson v. Mercer, Pet. 88; Lessee of Dulany v. Tilghman, 6 G. & J. 461; Payne v. Treadwell, 16 Cal. 220; Maxey v. Wise, 25 Ind. 1.

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.1

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. At first sight these cases might seem to go beyond the mere confirmation of a contract, and to be at least technically objectionable, as depriving a party of property * with- [* 378] out an opportunity for trial, inasmuch as they proceeded upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of

1 Chestnut v. Shane's Lessee, 16 Ohio, 599, overruling Connell v. Connell, 6 Ohio, 358; Good v. Zercher, 12 Ohio, 364; Meddock v. Williams, 12 Ohio, 377; and Silliman v. Cummins, 13 Ohio, 116. Of the dissenting opinion in the last case, which the court approve in 16 Ohio, 609-10, 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, assuming 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. Tilghman, 6 G. & J. 461; Journeay v. Gibson, 56 Penn. St. 57. But the legislature, it has been declared, has no power to legalize and make valid the deed of an insane person. Routsong v. Wolf, 35 Mo. 174.

* 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; Estate of Sticknoth, 7 Nev. 227; Goshorn v. Purcell, 11 Ohio, N. s. 641. In the last case the court say: "The act of the married woman may, under the law, have been void and inoperative; but in justice and equity it did not leave her right to the property untouched. She had capacity to do the act in a form prescribed by law for her protection. She intended to do the act in the prescribed form. She attempted to do it, and her attempt was received and acted on in good faith. A mistake subsequently discovered invalidates the act; justice and equity require that she should not take advantage of the mistake; and she has therefore no just right to the property. She has no right to complain if the law which prescribed forms for her protection shall interfere to prevent her reliance upon them to resist the demands of justice." Similar language is employed in the Pennsylvania cases. See, further, Dentzel v. Waldie, 30 Cal. 138.

it, and passing it over to the grantee.1 Apparently, therefore, there would seem to be some force to the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid contract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it: but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such a case is the right in the party to avoid his contract,— a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect.2 As the point is put by Chief Justice Parker of Massachusetts, a party cannot have a vested right to do wrong; or, as stated by the Supreme Court of New Jersey, "Laws curing defects which would otherwise operate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case." 4

3

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, with no notice of any fact [* 379] which should *preclude his acquiring an equitable as

1 This view has been taken in some similar cases. See Russell v. Rumsey, 35 Ill. 362; Alabama, &c., Ins. Co. v. Boykin, 38 Ala. 510; Orton v. Noonan, 23 Wis. 102; Dade v. Medcalf, 9 Penn. St. 108.

* 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, 381.

3 Foster v. Essex Bank, 16 Mass. 245.

State v. Newark, 3 Dutch. 197.

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.1

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.2

1 Brinton v. Seevers, 12 Iowa, 389; Southard v. Central R.R. Co., 2 Dutch. 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. Fleming, 25 Texas, 408; Wright v. Hawkins, 28 Texas, 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 parties are liable to be incidentally affected more or less in any case in which a defective contract is made good; but 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.

2 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

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 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. Co. of N. H., 50 N. H. 50, it was decided that the legislature had no power, as against nonassenting 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 inoperativethe 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.

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