Sellars v. Kelly

Simball, J.; The circuit court did not err in refusing a continuance, unless the facts proposed to be proved, were pertinent and material. These facts ■ were that Abner Kelly sold the slaves to one Campbell, under a power of attorney executed and acknowledged by his wife Ann Kelly. By the fifth section of the act of February 15, A. D. 1839, slaves owned by a married woman could be sold by the joint deed of husband and wife, proved and acknowledged, as conveyances of real estate. Art, 23, p. 336, of Rev. Code, provides,/‘that the separate property of the wife shall not be sold and conveyed, * * * unless she joins in deed as prescribed in the conveyance of real estate.” By the succeeding twenty-fifth article she may hire out her slaves, rent her lands, and take securities therefor in her own' name. As to these acts of ownership, she deals with the property as a feme sole, and needs not the co-operation of her husband; but in the more important transaction of making a sale or mortgage, her husband must join in the conveyance. The law guards her ownership with the additional precaution of a more solemn instrument (concurred in by the husband) acknowledged by her on private examination. By a separate instrument she could not appoint a stranger to make the sale. The husband was as destitute of power over this sort of property, to sell and convey, as a stranger. If the authorization is conferred upon another, it must be the joint act of both. The letter of attorney from the wife to the husband was void and conferred no authorization on the husband to act. Fort v. Doyle et ux, 7 Smedes and Marsh. 75. If the facts therefore proposed to be proved by [326] the absent witness, had been in evidence to the jury, they could not have availed the defendant. The court below rightfully ruled out the testimony of the magistrate before whom the wife acknowledged the power of attorney. This is apparent for the reasons already given. Nor was it error to refuse testimony, proving or tending to prove, that the money, the price of the slaves, was actually received by the wife. The question submitted to the jury was, in whom was the title and property in the slaves. It was proved that the slaves came to Mrs. Kelly by gift from her father, and were her property unless she had parted with the ownership by the sale to Campbell. There was but one mode in which she could pass the title by a sale. She was under the disability of coverture to do any act which would be equivalent to a ratification. To hold that this would be a confirmation, would be in principle the same as that a married woman could make a valid sale •by receipt of the price and a bare delivery. If it be unconscientious for Mrs. Kelly to retain the money, and be permitted now to secure the alternate value (this judgment was rendered in 1860), the proper forum to prefer and litigate that matter would be a court of equity. If it should there turn out that she had invested the money in other property, or had made such use of it as she might under the law, certainly a very strong appeal would be addressed to that court for relief. But with that subject we have nothing to do upon this record. The judgment is affirmed.