Davidson v. Cox

McCLELLAN, J. The only question in this case is whether the mere signature of the husband to the wife’s deed purporting to convey her land, the wife’s name only appearing in the body of the instrument, is an efficacious manifestation of his assent to and concurrence in the conveyance. In our opinion the express terms of the statute answer this inquiry in the negative. Its language is: “The wife * * * * cannot alienate her lands, or any interest therein, without the assent and [513] concurrence of the husband; the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land.” — Code of 1886, § 2348. This can mean nothing more or less than the husband shall join in the alienation in such way as would be necessary to a conveyance of his interest in the land if the land belonged to him in severalty or jointly or in common with others ; and in such case his mere subscription to the conveyance, another party alone being mentioned in the instrument as grantor, would not make it his deed, nor pass any interest he owned in the premises. — Sheldon v. Carter, 90 Ala. 380. This view is strengthened by the rulings of this court on the former statute, which provided that “the property of the wife, or any park thereof, may be sold by the husband and wife and conveyed by them jointly, by instrument in writing attested by two witnesses,” (Code of 1876, § 2707) ; and under which it was held that an instrument such as we have here', purporting to be the conveyance of the wife alone on its face, but signed by both husband and wife, is no more nor less than the void deed of the wife, to which the husband is not a party, and to which his conmrrence is not expressed in the only mode in which the law authorizes its expression. — Blythe & Wife v. Dar gin, 68 Ala. 370. It is urged, however, that the husband had some interest or title in the wife’s lands as her trustee under the former statute, which he has not under the present one, that such interest or title made a necessity for his joining in the alienation which has no existence now; and that, therefore, the decisions under the former statute are of no authority in respect of this one &c. &c. But, it is to he said in answer to this that the decision just referred to is expressly put upon the ground — not of any supposed interest or title in the husband, but — that the statute required his assent and concurrence to be expressed by joining in the conveyance, and it could not be expressed in any other mode. The present statute requires the expression of the husband’s assent and concurrence in this mode. It was not so manifested in the attempted conveyance involved in this case. The instrument, we conclude, was no more or less than the void deed of the wife. The city court properly excluded [514] it from the evidence on the trial, and properly rendered judgment for the plaintiffs. Affirmed.