Albany Fire Insurance Co. v. . Bay

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 11 It is obvious that on the death of Richard S. Treat, all the interest or estate which either the trustees or Mrs. Treat acquired, under the will of Doctor Stringer, in or to lot No. 1, terminated; and unless the mortgages were so executed as to constitute them valid liens as against Mrs. Treat upon her reversion, the lien created by the mortgages also ceased on the death of her husband. The counsel for the respondent contends that Mrs. Treat was vested with a separate estate in lot No. 1, independent of her husband, derived under the will of Stringer, and that as to that she is to be considered as a feme sole; and therefore having executed the mortgage without any fraud having been practised upon her, they are valid in equity. Conceding that a feme covert is to be regarded in equity as afeme sole, in respect to her power over her separate estate, that can not aid the plaintiff; for as I understand the rule, Mrs. Treat had no separate estate in the reversion after the termination of her husband's life estate. It was said by the supreme court, that a separate estate in the wife exists, where the husband has no interest in or control over it, and where it is not liable to the payment of his debts. That such is the consequence in respect to the separate estate of a feme covert, is doubtless true; but it is not because the entire interest in an estate is vested in a feme covert that renders it of the description of a separate estate in her. A separate estate in afeme covert only exists in such property, whether it be real or personal, as is settled upon her for her separate use, without any control over it on the part of her husband. It is not all the estate, either in lands or chattels belonging to a feme covert, nor is it her right of dower in the real estate of her husband. As to that kind of *Page 12 estate, the court of chancery, for certain purposes, considers her as a feme sole; and her contracts relative to it, if made in a particular manner, as binding. (Butler v. Buckingham, 5Day, 497; Methodist Episcopal Church v. Jaques, 3 JohnCh. 77; S.C. in error, 17 John. 548; Martin v. Dwelly, 6Wend. 13; Murray v. Barlee, 4 Simons, 82; 2 Story's Eq §§ 1380, 1386.) It remains then to consider whether these mortgages, executed by Mrs. Treat, are valid liens upon lot No. 1, her husband not having united with her in them. It is certified by the judge who took the acknowledgment of the execution of the mortgages, that Mrs. Treat being examined by him privately and apart from her husband, acknowledged that she executed the same freely and without any fear or compulsion of her said husband. That is the usual and proper form of the certificate of the acknowledgment of the execution of a deed by a married woman. (Merriam v.Harsen, 2 Barb. Ch. Rep. 269; 1 R.S. 758, §§ 9, 10.) By the common law, a married woman is disabled from alienating her lands by deed, either by uniting with her husband, or by executing it alone. The only mode in which she had power to transfer her title or interest in real estate, was by levying a fine or suffering a common recovery, her deed being void. (1 Bl.Com. 444; 4 Cruise's Dig. tit. 32 Deed, ch. 11, § 29;Compton v. Collinson, 1 H.Bl. Rep. 345; Jackson v.Vanderheyden, 17 John. 167; Martin v. Dwelly, 6 Wend. 9; Bool v. Mix, 17 id. 128; 2 Kent's Com. 150, 1;Gillet v. Stanley, 1 Hill, 121; 5 Cruise's Dig. tit. 35Fine, ch. 10, § 5. Constantine v. Van Winkle, 2 Hill, 240.) The husband, as a general rule, was required to be a party with the wife in levying a fine for the conveyance of her lands; but she might, as a feme sole, levy a fine of her lands without her husband, and it would be valid and effectual as against her and her heirs, unless it should be avoided by the husband during the coverture, which he might do for the benefit of the wife as well as of himself. (1 Preston on Abst. 336; Com. Dig. tit.Baron and Feme, G. 88; Mary Portington's case, 10 Coke, 43p. 322.) Lord Loughborough, *Page 13 in Compton v. Collinson, (supra,) said that it had been settled ever since the case in the 17 Ed. 3, (Year Book 17 Ed. 3, 52, 78,) that if a fine be levied by a feme covert without her husband, it shall bind her and her heirs, if it be not avoided by the husband; and that both Rolle and Comyns seem to intimate that the law would be the same as to a recovery. In the same case, page 345, it was said, in reference to the power of a femecovert to dispose of her lands, that it would be more accurate to state the law to be, that a married woman can make no conveyance of her lands, except by fine or recovery, and that a fine levied by her alone is avoidable only by her husband. The disability of a married woman to convey her lands by deed, was not supposed to arise from want of reason, but because by her marriage she was placed under the power and protection of her husband; and it was upon that ground that the separate examination of such woman on a fine was good, because when delivered from her husband her judgment was supposed to be free. (Hearle v. Greenbank, 3 Atk. 712; Compton v. Collinson,supra; 2 Kent's Com. 150; Durant v. Ritchie, 4 Mason, 54.) Judge Story, in the case of Durant v. Ritchie, said that fines, as a mode of conveyance, did not appear ever to have been adopted in this country; and common recoveries, though resorted to for other purposes, were not known to have been used for the transfer of the estates of femes covert. Thompson, Ch. J. inJackson v. Gilchrist, (15 John. 115,) in regard to the alienation of lands by married women, remarked that the common law modes, by fine and recovery, never were in use here. The great object which the common law aimed at, was to ascertain whether the wife, in the transfer of her estate or interest in real property, acted under fear or compulsion of her husband. In a conveyance by fine and recovery, the wife was privately examined by the court, as to her voluntary consent, which removed the general presumption of the law that she was acting under the compulsion of her husband. (2 Bl. Com. 355; 5Cruise's Dig. tit. 35, §§ 7, 8, 9; Bool v. Mix, 17 Wend. 128.) Instead of using fines and recoveries for the conveyance of *Page 14 lands by married women, under the government of the colony of New-York, deeds were used for that purpose, and upon their simple acknowledgments by the grantors, or proof made by a subscribing witness before a member of his majesty's council, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace, without private examination; and there were lands held under deeds of married women not acknowledged or proved even in the manner mentioned; which practices were recited in the act of the 16th of February, 1771, and such deeds were confirmed by it. As to future conveyances, it was enacted by that act, that no estate of a feme covert should thereafter pass by deed without a previous acknowledgment made by her, apart from her husband and on a private examination, that she executed the same freely, and without any fear or compulsion of her husband. (2 Kent's Com. 150; Jackson v. Gilchrist, 15 John. 109.) This act prescribing the form in which the deed of a feme covert should be acknowledged in order to pass her real estate, has been substantially continued in respect to married women residing in this state, in the successive revisions of the laws. (2 Greenleaf, 99, § 3; 1 R.L. 369, § 2; 1 R.S. 758, § 10.) No distinction is made, in either of the statutes referred to, between the effect of a deed executed by the husband and wife for the conveyance of her lands, where the wife resides in this state, and a deed executed by the wife without her husband for such purpose. By our usages and laws we have substituted her deed for a conveyance of lands in the place of the common law mode, by fine. It is conceded that it must have the same effect under our laws, where the husband joins with the wife, if properly acknowledged, as a fine had, at the common law, as a conveyance, where the wife joined with her husband in levying it. And I can see no reason why her deed, properly acknowledged, where the husband does not join with her in it, should not have at least as extensive an effect as a fine had, at the common law, when levied by her alone. There is a distinction made by our statute in respect to the mode of executing a deed for the conveyance of lands situated *Page 15 within this state, made by a married woman, depending upon her residence alone. If she reside out of the state, the statute makes it necessary, in order to pass her estate by deed, that she "shall join with her husband" in the conveyance; but the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole, and when so executed it is to have the same effect as if she were sole. (1 R.S. 758, § 11.) If she reside within the state, the only requisite provided by our statute in order to pass her estate in lands by deed, is, that she acknowledge, before some officer designated by the statute, on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband. There is no requirement that she shall join with her husband. There is no pretence but that a married woman is a person capable of holding lands; if so, our statute (1 R.S. 719, § 10) enables her to convey even if she could not at common law. It enacts that "every person capable of holding lands (except idiots, persons of unsound mind, and infants,) seised of, or entitled to, any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the restrictions and regulations provided by law." The statute has made two classes of married women in reference to the mode and manner in which they may convey their estates or interests in lands situate within this state; residents and non-residents of this state. There is a single restriction or regulation only,provided by law, to be observed by a married woman residing out of this state, in order to alien her lands situated here, which I have referred to. It is that "she join with her husband" in the conveyance. And as to a married woman residing within this state, it is provided by the same statute (1 R.S. 758 § 10) that no estate of such married woman shall pass by any conveyance, which she shall not acknowledge, (before some officer designated,) on a private examination, apart from her husband, that she executed it freely, and without any fear or compulsion of her husband. This is the only restriction or regulation provided by law, applicable to married women residing within this state; which being *Page 16 observed in her conveyance, the plain inference is, that the estate of such a married woman shall pass by her conveyance, whether executed by her, with or without her husband's joining with her. At the time Mrs. Treat executed the mortgage in question, she was seised of the premises in fee, capable of holding lands; and it is not pretended that she was either an idiot or a person of unsound mind, or an infant; and therefore was a person expressly authorized by the statute to alien her estate or interest in lands at her pleasure, subject only to such restrictions and regulations as were provided by law; and that as to them, the certificate of the officer before whom she acknowledged the execution of the mortgages, shows an exact compliance. The defendants insist upon another restriction, to her alienating her estate or interest in lands; that her husband must have joined with her in the conveyance, to give it the effect to pass her estate. I think that is answered by the fact, that there is no provision in our laws, making it necessary in order to the passing of the estate or interest of a married woman residing in this state, in lands of which she is seised or entitled to, that her husband should join with her in the conveyance. It is said in 2 Kent's Com. 152, that 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, and that such a rule was founded on sound principles, arising from the relation of husband and wife. It was however admitted that there were exceptions to the rule, and that it was not universal in its application. In New Hampshire, the wife may alone, and in a separate deed, at a separate time, convey her right of dower. The assent of the husband is not necessary to the validity of her conveyance. (Gordon v.Haywood, 2 N.H. 402; 1 N.H. Laws, 193.) In Massachusetts, it was held in Fowler v. Shearer, (7 Mass. 14,) decided in 1810, and in Stearns v. Swift, (8 Pick. 532,) decided in 1829, that if after a sale and conveyance by the husband of his lands, the wife will voluntarily relinquish her claim to dower by a separate deed, it would effectually bar her dower. There is, however, a conflict between the decisions, whether the *Page 17 exception, to what is said to be the general rule, exists in Massachusetts. For in Powell v. Monson Brimfield M. Co. (3Mason, 347,) decided in 1824, it was held that the husband must be a party to the deed of release by the wife of her dower, and that rule was adhered to in Shaw v. Russ, (14 Maine Rep. 432,) decided in 1837. The question in the last case arose upon a deed of release executed by a married woman in January, 1817, in which her husband did not join, to the grantee of her husband in a deed made in November 1816, and was supposed to be governed by the statute law of Massachusetts, the release being executed before Maine became an independent state. It was said that it was provided by the provincial legislature, by statute 9 Wim. 3, ch. 7, that the widow should have her dower in lands sold or mortgaged, who had not joined with her husband in such sale or mortgage. And that by the statute directing the mode of transferring real estates by deed, (Statutes of 1783, ch. 37,) dower is saved to the widow, unless she had joined with her husband in the conveyance. The case of Rowe v. Hamilton, (3Greenl. 63,) was decided in 1824. The point there decided was, that a feme covert could not bar her right of dower, by any release made to her husband during the coverture. But Mellen, Ch. J. who delivered the judgment of the court, reviewed the ordinance of 1641, and the several subsequent provincial statutes, and expressed the satisfaction of the court with the principles on which the decision of Fowler v. Shearer was founded. The substitute in favor of a conveyance by the wife, of a deed for a fine or common recovery, was made at an early day by most if not all the colonial governments, by statutes which have been substantially continued to this period by legislative enactments. These statutes, in most cases, have expressly provided that the husband and wife must join in the conveyance, to have the effect of passing her present or contingent estate or interest in real estate. This is so as it respects Maryland, (Lawrence v.Heister, 3 Har. John. 371;) New Hampshire, Massachusetts, Vermont and several other states. In Vermont, the right of a married woman to convey her lands by deed, is *Page 18 given by statute to convey "by deed of herself and baron," and making her separate examination and acknowledgment necessary, and to be certified upon the deed. (Sumner v. Conant, 10 Verm.Rep. 20.) It is said (2 Kent's Com. 153,) that the particular question, whether the husband must be a party to the deed of release by the wife of her dower, to give it validity, has never been judicially settled in this state. Nor can I find that it has been judicially determined in this state, whether the husband must join in a conveyance with the wife, to convey real estate of which the wife is the owner, or whether she may alone, if a resident of this state, without her husband, by her deed, on due examination and acknowledgment of its execution, before a competent officer, convey her real estate. In Jackson v. Vanderheyden, (17John. 167; see also Gillet v. Stanley, 1 Hill, 121; andConstantine v. Van Winkle, 2 Hill, 240;) it was said that the wife, at common law could pass her real property, by a fine duly levied; and under our statute, she might also, in conjunction with her husband, and on due examination before a competent officer, convey her real estate, or any existing or contingent future interest in it. But the point whether a married woman, residing within this state, can or can not convey her real estate, by her deed without her husband's joining with her in it, was not involved in the decision of either of these cases. So far as judicial decision is concerned it is an open question in this state. But if we may rely upon the dicta or casual remarks of learned judges, bearing upon it, but not involved in the questions determined, it may be as well sustained that a femecovert can during her coverture part with her interest in her real estate by deed without her husband, as that she must join with him to effect it. For in Jackson v. Holloway, (7 John. 81,) Thompson, J. observed that it was not necessary with us to have recourse to fine and recovery, in order to pass the estate of a feme covert. She may during her coverture part with the whole, or any portion of her interest in real estate, if the deed be acknowledged in the mode prescribed by the statute concerning the proof of deeds. That the words *Page 19 of the act were general, extending to any estate of the femecovert. There was no intimation that she must join with her husband to give validity to her deed. I have come to the conclusion that a feme covert residing within this state has power to convey her estate or interest in her lands by her separate deed without her husband, if she acknowledge, before a proper officer, on a private examination apart from her husband, that she executed such deed freely and without any fear or compulsion of her husband, and such acknowledgment is properly certified by such officer; and therefore that the mortgages executed by Mrs. Treat are valid and subsisting liens on lot No. 1. As to lot No. 3, the legal estate, at the time of the execution of the mortgages in question, was vested in Lusk and Bay, as trustees of Mrs. Treat, (1 R.S. 728, § 48,) who had a separateestate in the rents and profits arising from it, during the life of her then husband, if she should so long live, and a future contingent estate in fee, depending upon the event that she survived her said husband. (1 R.S. 723, § 13.) I do not think that the trustees were authorized to mortgage any of the lands held by them as trustees of Mrs. Treat, even with her consent. Their power was limited in that respect "to sell and dispose of such parts (in fee simple or otherwise,) as Mrs. Treat, by writing under her hand should from time to time request or desire." This does not include a power to mortgage. (Cumming v.Williamson, 1 Sand. Ch. 17; Waldron v. McComb, 1 Hill, 111; Bloomer v. Waldron, 3 Hill, 361.) But I think the mortgages are valid liens upon lot No. 3, having been executed by Mrs. Treat and duly acknowledged by her. She had such an interest in the lot, as she could convey or mortgage. The decree of the supreme court should be affirmed. GARDINER, RUGGLES, HURLBUT and HARRIS, Js. concurred.