Statement of the Case.

THIS was an action of ejectment, brought in April, 1882, in the circuit court of Cabell County, in the State of West Virginia, by John B. Laidley against the Central Land Company of West Virginia, to recover a tract of land in that State. The material facts were as follows:

Both parties claimed title under Sarah H. G. Penny backer. On February 25, 1870, she, being the owner of the tract, and the wife of John M. Penny backer, executed, with her husband, a deed purporting to convey the land to C. P. Huntington. That deed was duly recorded, together with certificates of the recorder that, on the same day, the husband came before him and acknowledged it to be his voluntary act and deed for the uses and purposes therein mentioned; and that the wife came before him, "and being examined by me privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said Sarah H. G. Penny backer, acknowledged that she had willingly signed, sealed and delivered the same, and wished not to retract it." On October 16, 1871, Huntington conveyed his title to the Central Land Company. On January 26, 1882, Mrs. Penny backer, having become a widow, executed and acknowledged, in due form of law, a deed of the same land to Laidley. These deeds were duly recorded.

At the first trial of this action, in December, 1884, Laidley requested the court to instruct the jury that the deed of Mr. and Mrs. Pennybacker conveyed his interest in the land; but that, if she was his wife at the time of its execution and acknowledgment, it was not valid, so far as it purported to be her deed, and did not convey any interest she might have in the land, and could not operate by way of estoppel against her or her grantees. The court declined to give this instruction; and a verdict was returned for the Central Land Company, and judgment rendered thereon. Laidley took the case by writ of error to the Supreme Court of Appeals of West Virginia, which, in November, 1887, held that the instruction requested by Laidley should have been given; and that the wife's acknowledgment was defective, because it did not show that she had met all the requirements of the Code of West

Statement of the Case.

Virginia of 1868, c. 73, § 4, (copied in the margin,1) which the court held to be that she should acknowledge the deed to be her act, should declare that she had willingly executed it, and should declare that she did not wish to retract it. The court accordingly reversed the judgment, and ordered the verdict to be set aside, and a new trial had in the circuit court of Cabell County. 30 West Virginia, 505.

In March, 1888, the Central Land Company filed in the county court a bill in equity against Laidley, alleging that Huntington, through his agent, Laidley's father, purchased from Mr. and Mrs. Penny backer the whole title in the land, and paid the price of $11,000, which was then its full value, and took possession of it under the deed of February 25, 1870, and held it until his conveyance to the Central Land Company, which had since been in possession thereof; that Laidley procured the deed of January 26, 1882, from Mrs. Penny backer fraudulently, and with notice of all these facts, and for the price of only $500, although the land had greatly increased in value; that the Supreme Court of Appeals, in the action of ejectment, had decided that the certificate of acknowledgment was defective in law, and consequently the deed did not convey her title to Huntington, and therefore reversed the judgment of the court below, and remanded the case for a new trial. The bill charged that, under and by virtue of that decision of the Supreme Court of Appeals, the legal title was in Laidley, but that he held it in trust for the Central Land Company, and prayed for a declaration and execution of the trust, and for an injunction against the action at law, and for further relief. That bill was dismissed upon a hearing, and the decree of dismissal was, on appeal, affirmed by the Supreme Court of Appeals in February, 1889. 32 West Virginia, 134.

1 When a husband and his wife have signed a writing purporting to convey real estate, she may appear before a recorder authorized to admit such writing to record in his office; and if, on being examined privily and apart from her husband by such recorder, and having such writing fully explained to her, she acknowledge the same to be her act, and declare that she had willingly executed the same, and does not wish to retract it, such privy examination, acknowledgment and declaration shall then be recorded by such recorder in his office.

Statement of the Case.

In September, 1890, this action of ejectment was tried again in the circuit court of Cabell County. The Central Land Company requested the court to instruct the jury that, if they found from the evidence that Huntington purchased, paid for and took possession of the land, and afterwards, and before this action was brought, conveyed it to the Central Land Company, which took and since held possession thereof, then, by section 8 of article 11 of the constitution of the State of West Virginia, adopted by the people thereof in 1863; and by section 4 of chapter 73 of the Code of West Virginia of 1868, which section 4 was taken from the Code of Virginia of 1860, and was in force in the territory included in the State of West Virginia at the time of the adoption of its constitution; and by the settled construction and interpretation which, before the formation of the State of West Virginia, had been given to this section by the Supreme Court of Appeals of Virginia in the cases of Hairston v. Randolph, 12 Leigh, 445, Siter v. McClanachan, 2 Grattan, 280, and Grove v. Zumbro, 14 Grattan, 401; the deed of February 25, 1870,. from Mr. and Mrs. Pennybacker to Huntington, acknowledged as aforesaid, was sufficient to pass to him all the right, title and interest of both the husband and the wife in the land, and the jury should find a verdict for the defendant. The court declined so to instruct the jury; and, at Laidley's request, instructed them that if, at the time of the exécution of the deed of February 25, 1870, Mrs. Penny backer was a married woman, that deed was absolutely void as to her, and passed no title of hers, legal or equitable, to Huntington; and by her deed of January 26, 1882, Laidley became vested with all her title and interest in the land.

The Central Land Company excepted to the refusal to instruct, and to the instruction given; and, after verdict and judgment for Laidley, presented to the Supreme Court of Appeals a petition for a writ of error, which was refused, "because the court is of opinion that the judgment complained of is plainly right; and the petitioner desiring to present to the Supreme Court of the United States a petition for a writ of error from this judgment, leave is hereby given to the petitioner to withdraw the petition and transcript of record aforesaid for that purpose."

Argument for Plaintiff in Error.

The Central Land Company thereupon sued out this writ of error, and assigned the following errors:

1st. "That the purchase of the said land of the said Pennybackers, and the said deed conveying the same, became an executed contract, which no action of the judiciary of the State of West Virginia had any right, authority or power to impair or invalidate by changing the settled construction of said section 4 of chapter 73 of the Code of West Virginia of 1868."

2d. "That under and by virtue of section 10, article 1, of the Constitution of the United States, no State is permitted to pass any law impairing the obligation of contracts; that the statutory construction of the laws of West Virginia, as it existed when the contract was made, governed the rights of parties, and rights vested under such existing constructions of the then laws cannot be divested, under said clause of the Constitution of the United States, by a subsequent decision of the state courts holding contracts invalid that were valid when made; such decisions of the state courts are contrary to the Constitution of the United States."

3d. "Because there appears on the record of said cause a Federal question in this; that the courts of West Virginia, in construing the said statute relating to deeds and acknowledgments thereof so as to invalidate the said deed to C. P. Huntington, under which your petitioner claims, changed, without legislative action, the settled and established construction. which existed at the time of the execution and delivery of said deed, which is contrary to the Constitution of the United. States; and that there is a Federal question raised by said record in this; that the said decision of the circuit court of Cabell County, which undertakes to deprive your petitioner of his property, is without due process of law, retroactive in its effect, and unconstitutional."

Laidley moved to dismiss the writ of error, for want of jurisdiction; and the motion to dismiss was argued with the merits of the case.

Mr. F. B. Enslow and Mr. J. H. Ferguson, (with whom was Mr. II. C. Sims on the brief,) for plaintiff in error.

In

Argument for Defendant in Error.

opposing the motion of the defendant in error to dismiss for want of jurisdiction they cited, among other cases: Douglass v. County of Pike, 101 U. S. 677; Gelpcke v. Dubuque, 1 Wall. 175; Chicago v. Sheldon, 9 Wall. 50; Olcott v. Supervisors, 16 Wall. 678; Chicago Life Insurance Co. v. Needles, 113 U. S. 574; Anderson v. Santa Anna, 116 U. S. 356; Bostwick v. Brinkerhoff, 106 U. S. 3; Johnson v. Keith, 117 U. S. 199.

Mr. W. E. Chilton and Mr. J. F. Brown, (with whom was Mr. John E. Kenna on the brief,) for defendant in error. In support of the motion to dismiss they cited among other cases; Mobile & Ohio Railroad v. Tennessee, 153 U. S. 486; Knox v. Exchange Bank, 12 Wall. 379; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; Railroad Company v. Rock, 4 Wall. 177; Havemeyer v. Iowa County, 3 Wall. 294; St. Paul, Minneapolis & Manitoba Railway v. Todd County, 142 U. S. 282; Blount v. Walker, 134 U. S. 607; Beatty v. Benton, 135 U. S. 244; San Francisco v. Itsell, 133 U. S. 65; Hopkins v. McLure, 133 U. S. 380; Hale v. Akers, 132 U. S. 554; Marrow v. Brinkley, 129 U. S. 178; De Saussure v. Gaillard, 127 U. S. 216; Crossley v. New Orleans, 108 U. S. 105; Santa Cruz County v. Santa Cruz Railroad, 111 U. S. 361; McManus v. O'Sullivan, 91 U. S. 578; Murdock v. Memphis, 20 Wall. 590; Commercial Bank v. Buckingham, 5 How. 317; Grand Gulf Railroad v. Marshall, 12 How. 165; Green v. Neal, 6 Pet. 291; McBride v. Hoey, 11 Pet. 167; Elmendorf v. Taylor, 10 Wheat. 152; Furman v. Nichol, 8 Wall. 44; Railroad Company v. McClure, 10 Wall. 511; Burgess v. Seligman, 107 U. S. 20; Crowell v. Randolph, 10 Pet. 368; Cook County v. Calumet & Chicago Canal Co., 138 U. S. 635; Texas Pacific Railway v. Southern Pacific Co., 137 U. S. 48; Chappell v. Bradshaw, 128 U. S. 132; Brooks v. Missouri, 124 U. S. 394; Detroit City Railway v. Guthard, 114 U. S. 133; Susquehanna Boom Co. v. West Branch Co., 110 U. S. 57; Simmerman v. Nebraska, 116 U. S. 54; Chouteau v. Gibson, 111 U. S. 200; Brown v. Colorado, 106 U. S. 95.