Lane v. McKeen

After a continuance for advisement, the opinion of the Court was drawn up by Shepley J.- There are difficulties in the way of the plaintiff in maintaining this bill, which cannot be Overcome. The contract [305] attempted to be proved to convey the real estate of the wife is not in writing, and it is not taken out of the statute of frauds by part execution. There has been no such delivery and change of the possession from one party to the other as is necessary for such a purpose. But it is not necessary to examine the testimony to prove this; for the contract, had it been in writing, and signed by the husband and wife, could neither bind the wife, nor her heirs. The argument for the plaintiff is, that in England a contract by husband and wife to levy a fine of the wife’s lands would be decreed to be performed, the wife being separately examined, and assenting ; and Powell, and the cases referred to by him, are relied upon as authority for this position. It is then said, that our mode of conveyance by deed is a substitute for the conveyance by fine, and the same principle being applied, equity will decree the performance of a contract by husband and wife to convey her lands according to our mode of conveyance; and the case of Downey v. Hotchkiss, 2 Day, 225, is relied upon as deciding the question as to the application of such a principle here. The case of Baker v. Child, 1 Vern. 61, is the most direct authority for the exercise of such a power by the English chancery. That case, it is said in Thayer v. Gould, 1 Atk. 617, was erroneously reported ; and Kent says, it is not law ; and that an “ agreement by a feme covert with the assent of her husband for a sale of her real estate is absolutely void at law, and the courts of equity never enforce sucli a contract.” 2 Kent's Com. 167, and note c. Story states the disability of the wife, and that it “ can he overcome only by adopting the precise means allowed by law to dispose of her real estate; as in England, by a fine, and in America, by a solemn conveyance.” 2 Story’s Eq. 617. In the case of Martin v. Mitchell, 2 Jac. & Walk. 412, it was held, that an agreement by husband and wife to sell her estate was void as to the wife, and that courts of equity would not give relief against her on such a contract. The case of Downey v. Hotchkiss does show one instance of the exercise of sucli power in Connecticut, but that case has been twice overruled in that State. And the principle is now there established, “ that an agreement by a married woman with the assent [306] of her husband for the sale of real estate, and on a valuable consideration is void in law; and that courts of equity will never enforce such a contract against her.” Butler v. Buckingham, 5 Day, 492; Watrous v. Chalker, 7 Conn. Rep. 224. The case of ex parte Thornes, 3 Greenl. 50, decided such a contract to be void in this State. Bill dismissed, with costs for respondents.