Jackson ex dem. Campbell & Reade v. Holloway

Thompson, J. delivered the opinion of the court. The defendant claims title to the premises, under a lease from John Reade to William Holloway, dated in the year 1796. John Reade, however, had only a life-estate; the fee being in his wife, Catharine, who is one of the lessors. The other lessor, Campbell, claims title under a lease from John Reade and Catharine, his wife, dated in the year 1806, duly acknowledged by them. John Reade has since died, and his widow has accepted rent from the defendants. If we are to examine and decide this case upon the score of English authority, as the counsel seem to have argued it, the question before us would "be, whether the acceptance of rent, by Mrs. Reade, was an affirmance of the old lease from her husband; and how far the acceptance of rent would affect her interest, would depend on the question whether, as to her, the lease from her husband was void, or only voidable ? This is a point which seems not to be altogether settled in the English books. In Bacon’s Abridgment, (tit. Leases, (C.) p. 13.) it is laid down, as a doctrine clearly agreed to, that if a husband seised of lands, in right of his wife, make alease thereof by indenture, or deed-poll, reserving rent, that this is a good lease for the whole term, unless the wife, by some act after the husband’s death, shows her dissent thereto; for if she accepts rent that becomes due after his death, the lease thereby becomes absolute and unavoidable ; and that if the wife join in such lease for years, if not made pursuant to the statute of 32 Hen. VIII. c. 28. she is, after her husband’s death, at liberty either to affirm it, by acceptance of rent, or to dissent to and avoid it, in the same manner as if she had been [86] ■no party thereto. The authorities, however, referred to, do not seem fully to support the positions there laid down. Serjeant Williams, in his note to 2 Saund. 180. (11. 9.) has collected most of the cases on the subject. And from many of the old authorities, it appears, that if the lease was made by the husband alone, and the wife, after' his death, accepted rent, the acceptance would not bind her; but if she had joined in the lease, and then accepted rent, after the death of her husband, she would have been bound by it. And whether the lease was for life or years did not vary the principle, but only changed the remedy. From the cases there referred to, it is justly observed, that the law is not so clearly agreed, as it is said to be, in the passage cited from Bacon's Abridgment. And was it necessary here to decide the question, I should incline to the opinion, that where the wife is not a party, to the lease, it is void, as to her, and, of course, not affirmed by the acceptance of rent. The weight of authority appears to me to be on this side of the question. And it is most conformable to the general rules of law, applicable to the rights of femes covert. It would seem a little incongruous, to speak of a deed as voidable by a person who was not a party, or privy to it, nor had any agency in its execution. The very term, implies some agency in the act which is to be avoided. But it is unnecessary to give any definitive opinion on this point. In England, by the statute of 32 Hen. VIII. (c. 28.) leases of the estates of femes covert are valid if made in the name of the husband and wife, and she seals the same, and the rent is reserved to the husband and his wife, and the heirs of the wife, according to hey estate of inheritance. In other cases, the interest of a feme covert, in real estate is devested only by fine and recovery. We have not adopted the statute of Hen. VIII. But it is not necessary, with us, to have recourse to fine and recovery, in order to pass the estate of a feme covert. She [87] 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. (1 Rev. Laws, 478.) The words of this act are general, extending to any estate of the ferne covert. Mrs. Reade having, with her husband, executed and duly acknowledged the lease to Campbell, in 1806, did thereby put it out of her power to affirm the lease given by her husband, in 1796, to William Holloway. Campbell's rights, during the continu. ance of his lease, could not be prejudiced by her acts. This ground is, of itself, sufficient to entitle the plaintiff to recover. judgment for the plaintiff.