Haines v. Ellis

The opinion of the Court was delivered by Lewis, C. J. It is not necessary to review the decisions made before the Act of 1848, relative to the rights of married women, because, according to Cumming’s Appeal, 1 Jones 275, since that Act she must be “ considered a feme sole in regard to any estate of whatever name or sort, owned by her before marriage, or which shall accrue to her during coverture, by will, descent, deed of conveyance or otherwise.” It was said in that ease, by Mr. Justice BogeRS, that the Act of 1848 “ works a radical and thorough change in the condition of a feme covert. She may dispose of her separate estate by will or otherwise, as a feme sole:” 1 Jones 275. This language, so far as it has been supposed to countenance the conveyance of her estate, without the consent of her husband, has been qualified by the subsequent decisions in Peck v. Ward, 6 Harris 506; Ulp v. Campbell, 7 Id. 361; Mahon v. Gormley, 12 Harris 80, and other cases. The Act of 1848, as now understood, makes no change in the mode of alienation, although it does in the nature of the wife’s estate. A married woman’s estate can only be conveyed or affected either by uniting with her husband in a deed separately acknowledged according to the Act of 1770, or by some act of the husband, under “ a previous written consent of the wife,” duly acknowledged according to the Act of 1848. The object of the statute last named was to protect her estate from being encumbered or conveyed by her husband, or taken by his creditors, against her consent, and not to enable her to sell, em-cumber, or give it away without his consent. The intention was [256] that she should “own, use, and .enjoy” it. It was not necessary to the purposes of th.e Act, that she should be allowed to part with her estate without the advice and consent of her husband. On the contrary, such a construction of the Act would tend to defeat the wise and benevolent intentions of the legislature. In the case before us, Mrs. Hutchinson joined her husband in the deed, and acknowledged it separate and apart from her husband, according to the Act of 1770. It is, therefore, untainted by anything arising from the absence of his consent, or the presence of his coercion. The form of the conveyance stands entirely clear of objection. This brings us to the question, had she a clear estate in the land ? The deed of Isaac M. Post and wife gave her a fee simple “to the only, sole, separate, and proper use and behoof of herself and her heirs and assigns for ever,” subject to a ground-rent of $42 per annum. It is not necessary to consider whether this language in the deed would have deprived her husband of all interest in the land after her death. By joining in the conveyance, he has relinquished all his rights, whatever they may have been. With the exception of his rights after her death, the deed to Mrs. Hutchinson gave her precisely the same estate which any conveyance in the ordinary form of a deed in fee simple would give, since the Act of 1848. There is no trust created. There is no trustee appointed; nor is there any occasion for one. There is no restriction imposed by the conveyance upon her right to sell. It is not the case of a power, but of an interest. The deed from herself and husband to Haines is in due form, separately acknowledged according to law, and passes her interest. Ellis, the purchaser, consented to take, subject to the ground-rent. The title tendered is such as the contract requires. The judgment must, therefore, be in favor of the plaintiff in error. It is considered that the judgment of the District Court be reversed, and that judgment be entered in favor of the plaintiff here for $650, “ to be enforced upon the plaintiff making conveyance of the property described in the case stated, to the defendant, or depositing in Court a deed therefor duly executed.”