Velten v. Carmack

Moore, J. (after stating the facts). — At common law, the wife’s legal identity was merged in that of her husband. The title to all her personal property vested in him by the act of marriage. He had the entire control of his wife’s land during their joint lives, and in the event of issue born alive and his survivorship, he had a vested interest therein. He was entitled to ante-nuptial choses in action and her post-nuptial acquisitions. The wife could take property as grantee, but the husband could not convey to her, for the reason he would in theory be conveying to himself. He might devise his lands to her, since he must die before his will could take effect. The wife might have a will of her own, but she could not devise her real property. The husband could appropriate, use, and dispose of her chattels real, while the wife could neither sue nor be sued. She might in equity take a title by conveyance from her husband, but could not at common law. These rights she surrendered to her husband in consideration of his support and the payment of her ante-nuptial debts, together with the duty of answering for her torts. In case she outlived him, she had dower from his lands, while he, in case of survivorship and the birth of issue alive, had courtesy in her lands. She could convey her lands only by fine and recovery, a fictitious suit in which she was obliged to acknowledge to the judge before whom the case was tried, that she, without fear or coercion from her husband, acknowledged the fine, which custom has survived the reason therefor, and exists in many states to-day. Such was the rigor of the common law in regard to the property rights of the wife, and this doctrine was imported with that law to the shores of this continent; and wherever the common law prevails, is the law at the present time unless amended by statu ce. In this state, the harsh doctrine of the common law has been, as applied to the property rights of married women, largely avoided by the constitution and further amended by subsequent legislation. The constitution, [287] section. 5 of article XV., provides that “the property and pecuniary rights of every married woman, at the time of marriage, or afterward acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband.” Section 3003 of Hill’s Code, passed October 15, 1854, provides that the husband and wife may, by their joint deed, convey the real property of the wife; and section 2992 of said Code, passed October 21, 1878, provides that the property and pecuniary rights of every married woman at the time of her marriage, or afterward acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey, or devise the same by will, to the same extent and in the same manner that the husband can property belonging to him. In Rugh v. Ottenheimer, 6 Or. 234, Boise, J., in speaking of this clause of the constitution, says: “The members of the constitutional convention were mostly farmers, who had acquired land under the act of congress of September 27, 1850, granting land to settlers in Oregon. When these settlers were married people, the wife received from the government an equal share of the land with her husband, and, as there was a vast amount of this land the title to which was in the married women of the country, a large majority of the members of the convention enacted this clause, supposing that it would protect this property from the debts and contracts of the husband, and they did not think it capable of any other construction.” In Brummet v. Weaver, 2 Or. 170, Shat-tuck, O. J., in defining such property as a married woman may acquire by gift, devise, or inheritance, under the constitution, says: “We think that these provisions of law must be so construed as to allow a married woman not only to hold property as separate property without the, intervention of a trustee, but also to exchange one species of her property for another; and to authorize her to sell any part of her separate property and retain the [288] purchase money as her own ; or with it to buy other property, to be held by her in the same manner and for the same purpose. ” In Starr v. Hamilton, Deady’s Decisions, 279, Mr. Justice Deady, who was the president of the constitutional convention, inquires into the source from which the consideration came with which a married woman acquired property. The members of the constitutional convention, when called to the bench as judges of this state, and of the federal court, have given to this clause of the constitution a liberal construction, on the theory that it was intended to be remedial in its application. It was never intended that the rule “that all statutes in derogation of the common law should be strictly construed,” should be applied to the interpretation of this clause of the constitution and of the statutes in aid of the property rights of married women. Mr. Bishop, in his valuable work on Statutory Crimes, § 192, lays down the rule of interpretation as follows : ‘ The law, for example, loves harmony and right; therefore it construes remedial statutes, made to amend some defects in the common law, liberally; it loves honesty and fair dealing, and so construes liberally statutes made to suppress frauds between individuals; and, generally, it employs a liberal interpretation for statutes which operate beneficially upon those whom they immediately concern. But enactments of the opposite character, taking away rights, or working forfeitures, or creating hardships of any kind, it construes strictly. ” Applying these rules to the case at bar, could oral testimony be offered to show the real consideration of the deed from Gilbert to Carmack ? It is a universal rule, that even in equity a party claiming under a sealed document is bound by the general character of the consideration stated in the deed. Fraud, however, furnishes an exception to this rule, and under an allegation of this character, oral testimony may be received to prove the true consideration: Wharton, Law of Evidence, vol. 2, § 1046; Reed, Statute of Frauds, vol. 3. § 1071. So oral [289] testimony is admissible to show that a deed expressing a money consideration was in fact an advancement. Such testimony is offered not for the purpose of contradicting the recitals of the deed, but to show, in a settlement among the heirs, that one or more has already received a certain amount by way of advancement, and should not now have an equal share of the remainder of the estate: Bruce v. Slemp, 82 Va. 352; Meeker v. Meeker, 16 Conn. 383; Parks v. Parks, 19 Md. 323. In Brummet v. Weaver, supra, the court held that a married woman may exchange one species of her property for another, and this would impress upon it the same character that the original property had possessed. By this rule, the source from which a married woman had derived property may be inquired into for the purpose of ascertaining the means whereby the title to property had been acquired; and under that rule it would seem that it was competent to show the real consideration for the conveyance, not for the purpose of contradicting the deed, because there was no controversy in relation to its genuineness, but for the purpose of showing the source whence the real consideration sprang. In the case at bar, Robert Gilbert intended to give to his daughter this tract of land. He inserted a consideration expressed in money, but that too came from him. The real consideration, the one thousand dollars, was a donation from him to his daughter; and the same having been expended or exchanged for the land, as evidenced by the conveyance, makes the property acquired no less a gift. It was competent under the rule laid down in Brummet v. Weaver, supra, for the respondent to show, in order to support his title, that the real consideration was a gift, and that this could be traced through all the transactions into which it had entered. While it is true that a court should be governed by the precedents of the past, it is not true that it should close its eyes to the fact that an advanced civilization has recognized woman as man’s equal, and that the letter and spirit of our legislation has placed her on a plane with [290] her husband, and for that reason a court should not grope into the past for a rule, the reason for which has long since become extinct, but in the light of advanced reason interpret the statute in such a liberal manner as to carry-in to effect the wise provisions of the legislature in behalf of married women. Viewing the transfer of this land as a gift within the meaning of the constitution and statute, it became the separate property of the defendant Margaret A. Car-mack, which she could convey, subject to her husband’s right of courtesy, without being joined in the deed by him; and when he executed his separate deed to the land he barred his right thereto, and the purchaser took what title Margaret A. Carmack then had, which title now being vested in the respondent, it follows that the decree of the court below must be affirmed.