Opinion
APRIL TERM, 1768.
EJECTMENT for Ground in the City of Philadelphia. Mercy Masters being seized in fee married Peter Lloyd. Peter Lloyd and Mercy his Wife convey to Ralph Asheton in 1727. Ralph Asheton reconveys to Peter Lloyd the Land in question. Afterwards, in 1738, on a Judgment against Peter Lloyd, the Land in question was taken in Execution and sold by the Sheriff to the Defendant for £ 1300. — Plaintiff claims as Hair at Law to Mercy Lloyd, insisting that his Mother being a Feme Covert could not legally convey her estate without an examination by Writ. And though in the case of Davey versus Turner tried in this Court September 1764, it was ruled that an acknowledgement of the Deed on a private examination before a Justice or peace, was sufficient under a long Usage to sanctify her Deed, though not strictly agreeable to Tax; yet here there was not even that acknowledgment, or private examination.
See Ant. p. 11.
But it appearing in Evidence, that it had been the constant Usage of the Province formerly for Femes Covert to convey their Estates in this manner, without an acknowledgement or separate examination; And that there were a great number of valuable Estates held under such Titles, which it would be dangerous to impeach at this time of day, THE COURT gave a Charge to the Jury in favor of the Defendants, founded on the Maxim Communis Error facit Jus. And the Jury accordingly found for the Defendant.