III. Wife's capacity at law to act as a feme sole. (1.) To purchase and sell land.

The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property, and has given up to him all personal property in possession, and the right to receive all such as may be reduced into possession. (a) But this general rule is subject to certain exceptions, when the principle of the rule could not be applied, and when reason and justice dictate a departure from it.1

In the first place, a wife may purchase an estate in fee without her husband's consent, and the conveyance will be good, if the husband does not avoid it by some act declaring his dissent, and the wife, after her husband's death, may waive or disagree to the purchase. (b) But the conveyance of a feme covert, except by some matter of record, was absolutely void at law,2 and in England the wife used to pass her freehold estate by a fine, and this and a common recovery were the only ways in which she could, at common law, convey her real estate. She might, by a fine and a declaration of the uses thereof, declare a use for her husband's benefit. So, if the husband and wife levied

(a) 1 Vesey, 305. 1 H. Blacks. Rep. 346.

(b) Litt. sec. 677. Co. Litt. 3, a. 356, b. 2 Blacks. Com. 292.

'In New York, if any female being or afterwards becoming a married woman, deposits funds in a savings bank in her own name, the officers of such bank are authorized to pay the same to her, and her receipt will be a sufficient discharge. Laws of New York, 1850, ch. 91.

2 Where lands were conveyed to a married woman who had been deserted by her husband, a mortgage deed, given back by her at the same time to secure a part of the purchase money, was held void. Concord Bank v. Bellis, 10 Cush. 276. Nor is a married woman estopped from setting up title to lands, as against one claiming as grantee under her warranty deed, which falsely purported to have been executed before her marriage. Lowell v. Daniels, 2 Gray, 161.

The wife, even at common law, may make a conveyance to her husband through a third person, to whom the wife first conveys, and who then conveys to the husband. Jackson v. Stevens, 16 Johns. R. 110. Meriam v. Harsen, 2 Barb, Ch. R. 232. But it seems that a married woman may not, by uniting with her husband in a conveyance of her lands to a trustee, reserve a valid power to appoint it to the husband's use, or convey it to him by devise. Dempsey v. Tylee, 3 Duer, 73.

a fine, a declaration of the uses by the husband alone would bind the wife and her heirs, unless she disagreed to the

uses during the coverture. (a) As a general rule, the * 151 husband must be a party with the wife to her conveyance, but if she levied a fine as a feme sole, without her husband, though it would be good as against her and her heirs, (b) the husband may avoid it during coverture, for the benefit of the wife as well as for himself. (c) Now the English law is changed as to the mode of conveyance of the wife, by the abolition of fines and recoveries, and the wife conveys by deed, with the husband's concurrence. (d) The wife may, as an attorney to another, convey an estate in the same manner as her principal could, and she may execute a power simply collateral, and, in some cases, a power coupled with an interest, without the concurrence of her husband. (e) She may also transfer a trust estate, by lease and release, as a feme sole. (ƒ)

The conveyance of land by femes covert, under the govern

(a) Beckwith's Case, 2 Co. 57. Swanton v. Raven, 3 Atk. Rep. 105. In Durant v. Ritchie, 4 Mason's Rep. 45, the husband and wife conveyed to A. in fee, to the use of the grantors for their joint lives, and to the survivor in fee, and the uses were held to be well raised out of the seisin of A.

Shep. T. by Preston, p. 7.

(b) Bro. Abr. tit. Fines, pl. 75. Perkins, sec. 20. (c) Preston on Abstracts of Title, vol. i. p. 336. By the Fine and Recovery Act of 3 & 4 W. IV. c. 74, the court of C. B. may, whenever the husband's concurrence cannot be procured from any cause whatever, authorize the wife to convey her lands by deed without his concurrence.2 This is analogous to the provision in the Civil Code of Louisiana, art. 127, taken from the Code Napoleon, art. 218, by which, in case the husband refuses to authorize his wife to sell her paraphernal property, she may apply to the judge of the place of her domicil for authority, and which he may grant after hearing the parties.

(d) By the English statute of 3 and 4 William IV. ch. 74, abolishing fines and recoveries, married women are enabled, with the concurrence of their husbands, and in special cases without it, to dispose by deed, or relinquish any estate they may have, as effectually as they could do if sold, provided the deed of a married woman be acknowledged by her before a competent officer, on a previous examination, apart from her husband.

(e) Sugden on Powers, c. 3, sect. 1. Co. Litt. 52, a, 112, a. (f) Burnaby v. Griffin, 3 Vesey, 266.

1 Scott v. Purcell, 7 Blackf, R. 66.

Co. v. Bay, 4 Barb. S. C. Rep. 407.

But see, as to the law in New York, The F. Ins. Affirmed in Court of Appeals, 4 Comstock R. 1. The mortgage of the wife, without the concurrence of the husband, was held to be good. See 30 E. L. & Eq. 493; Id. 519; 80 Id. 348; 33 Id. 227, 282.

ment of the colony of New York, was, in point of fact, by deed and not by fine, and upon the simple acknowledgment of the wife before a competent officer, without private examination. Such loose modes of conveyance were mentioned in the act of the 16th of February, 1771, and were confirmed; but it was declared, that in future, no estate of a feme covert should pass by deed, without her previous private acknowledgment before the officer, apart from her husband, that she executed the deed freely, without any fear or compulsion of her husband. (a)1 The deeds of femes covert, in the form used in other cases, accompanied by such an examination, and which is still required by statute, (b) have ever since been held sufficient to convey their estates, or any future contingent interest in real property, and fines and recoveries are now abolished by statute in New York. (c) If the wife resides out of the state, she may unite

(a) It is worthy of notice, however, that in the act of the first legislature of New York, in 1683, under the Duke of York, and which was termed "the charter of liberties," it was provided, that no estate of a feme covert should be conveyed but by deed acknowledged by her in some court of record, and she being secretly examined, whether she did it freely, without threats or compulsion of her husband. In the old colony of Plymouth, it was enacted by law, in 1646, that the acknowledgment of a sale of lands by the wife before a magistrate was sufficient. Plymouth Colony Laws, by Brigham, 1836, p. 86. In Massachusetts, under the province act of 9 William III., a wife, in conjunction with her husband, might convey her real estate by deed of bargain and sale, duly executed, acknowledged, and recorded, without being privately examined, whether she did it freely or not. Judge Trowbridge said, such had been the practice in the province down to his time, and he held such conveyances, so authenticated, to be valid. See his opinion in the American Jurist, No. 27. See, also, Fowler v. Shearer, 7 Mass. Rep. 14, 19-22. The Revised Statutes of Massachusetts, of 1836, give a sanction to the joint deed of husband and wife; but though the deed will pass her real estate, it will not bind her by any covenant or estoppel.

(b) N. Y. Revised Statutes, vol. i. p. 758, sec. 10.

(c) Ibid. vol. ii. p. 343. If, however, the party was an infant as well as a feme covert,

1 The certificate of the officer must be complete according to the requisition of the statute to make a married woman's deed operative. It cannot be amended by parol testimony of the officer, after his term of office has expired. Elwood v. Klock, 18 Barb. R. 50. Dennis v. Tarpenny, 20 Barb. 371.

By a recent statute of Vermont, the separate acknowledgment of married women to deeds is no longer required. They execute deeds in the same manner as their husbands.

Laws of 1851,

29.

The wife may be estopped from impeaching the validity of a conveyance made without her separate acknowledgment, if by her own free act she receive the consideration. Fulton t. Moore, 25 Penn. 468. See Curtiss v. Follett, 15 Barb. 337.

with her husband and convey all her right and interest,

*

* 152 present and contingent, equally as if she were a feme sole, and without any such special acknowledgment. (a) Nor does a deed by the wife, in execution of a power or trust, require a private examination. (b)

This substitute of a deed for a conveyance by fine has prevailed throughout the United States, as the more simple, cheap, and convenient mode of conveyance. (c) The reason why the husband was required to join with his wife in the conveyance was, that his assent might appear upon the face of it, and to show he was present to protect her from imposition; and the weight of authority would seem to be in favor of the existence of a general rule of law, that the husband must be a party to the conveyance or release of the wife. Such a rule is founded on sound principles arising from the relation of husband and wife. But there are exceptions to the rule, and it is not universal in its application. In New Hampshire, the wife, according to statute and usage, may release her right of dower by her separate deed, executed without her husband; (d) and in Massachusetts it has been said, by a very high authority, that the wife, by her separate deed executed subsequently to a sale by her husband, and in consideration of that sale, may release her right of dower. (e) In the State of Maine the same exception

the disability arising from infancy remains, though she execute and acknowledge the deed in the form prescribed by the statute. Bool v. Mix, 17 Wendell's Rep. 119. (a) New York Revised Statutes, vol. i. p. 578, sec. 11.

(b) Platt, J., in Jaques v. Method. Epis. Church, 17 Johns. Rep. 590. Sturges v. Corp, 13 Vesey, 190. When the wife's property settled on her is the subject of a deed, equity looks upon her as a feme sole, and as incident to the ownership in her, is her power of disposition without the concurrence of her husband. Powell v. Murray, 2 Edw. V. Ch. Rep. 636.

(c) Davey v. Turner, 1 Dall. Rep. 11. Watson v. Bailey, 1 Binney's Rep. 470. Jackson v. Gilchrist, 15 Johns. Rep. 89. Fowler v. Shearer, 7 Mass. Rep. 14. Gordon v. Haywood, 2 N. H. Rep. 402. Thatcher v. Omans, Supplement to 3 Pick. Rep. 521. Lithgow v. Kavenagh, 9 Mass. Rep. 172. Elmer's N. J. Dig. 83. Acts of North Carolina, 1715, 1750. The method of conveying lands by fine and common recovery was never in use in North Carolina, and the statutes of 1715 and 1750, required the wife's previous private examination before her conveyance by deed was binding. The law of the island of Jamaica allows a married woman to convey by a simple conveyance with her separate acknowledgment.

(d) Woodbury, J., in 2 N. H. Rep. 176, 405.

(e) Parsons, Ch. J., in Fowler v. Shearer, 7 Mass. Rep. 14.

has been adopted; and it is declared to be the usage or common law of New England, that a wife, in consideration of her husband's conveyance, may, by her own separate deed, release her right of dower to the grantee of her husband. (a) Subject to this exception, the general rule is explicitly re- * 153 cognized in those states where the exception prevails. But in Massachusetts, even the exception is now understood not to exist, and it is declared that the husband must be a party to the deed of release by the wife of her dower, and the previous conveyance by the husband is not sufficient to give the wife's deed, executed by her alone, validity. (b) In New York, this particular question has never been judicially settled; it is, however, declared by statute, (c) that if a married woman execute a power by grant, the concurrence of her husband, as a party, is not requisite ; and if she reside out of the state, though she may convey any real estate situated within the state, without any other acknowledgment or proof of the execution of it than that required of a feme sole, she is in that case to "join with her husband" in the conveyance. (d) The substitute in favor of a conveyance by the wife, of a deed for a fine, or common recovery, was made in Maryland, by the colony statutes of 1715, 1752, and 1766; and the statute law of that state is explicit, that the husband and wife must join in the conveyance. (e) So, in Massachusetts, from the earliest periods of the colony, the wife, with the concurrence of her husband, could convey her estate in fee by deed duly acknowledged and recorded. (ƒ) In South Carolina, Georgia, and Kentucky, the wife conveys in the same way; and in Rhode Island, Connecticut, Ohio, Indiana, Missouri, and North Carolina, (and this is no doubt the general rule,) the husband must join in the conveyance by the wife, and she must be separately examined before an officer. (g)

(a) Rowe v. Hamilton, 3 Greenleaf's Rep. 63.

(b) Powell v. Monson and Brimfield Manufacturing Company, 3 Mason's Rep. 347. Hall v. Savage, 4 ibid. 273. Jackson on Real Actions, 326.

(c) N. Y. Revised Statutes, vol. i. p. 736, sec. 117.

(d) New York Revised Statutes, vol. i. p. 758, sec. 11.

(e) Lawrence v. Heister, 3 Harr. & Johns. Rep. 371.

(f) 4 Mason's Rep. 45, 62.

+(9) Manchester v. Hough, 5 Mason's Rep. 67. Revised Statutes of Ohio, 1831. See, also, Ter. Law of Ohio, 1795. Chase's Statutes, vol. i. p. 186. The statute law