Martin v. Colburn

IíENítY, C. J. Plaintiffs sued defendant in ejectment for the possession of eighty acres of land in Cass county which the wife had conveyed to the defendant by deed .in which her husband did not join. The defence was a general denial and also special, setting up the fact that it was real estate held by the wife as her separate property, although that fact did not appear upon the face of the — 231 — deed, but was established by evidence aliunde. There was a judgment for defendant, from which plaintiff has appealed. The defendant and two other parties by their joint deed conveyed this land to Mrs. Martin on' the eleventh of. February, 1875, and the evidence tends to prove that it was purchased by, her with the proceeds of, property which was devised to her by her father, to her sole and separate use. On the twenty-eighth of January,. 1875, her husband executed and acknowledged an instrument of writing which recited the provisions of said will,, and that Mrs. Martin had become the owner of land in Cass county as her separate estate, and had desired him to assume its management, and declaring that he had no interest, he undertook to manage and control it as she, might in writing request, for her sole and separate use. While the paper does not specify what land in Cass county she had acquired, and in fact she had then re-, ceived a deed for none, yet considering all the facts and circumstances, no doubt can be entertained that-it either related to the land purchased of defendant, embracing the eighty acres in controversy, or to such lands as she. might thereafter acquire in Cass county. In these respects the case bears some resemblance to that of Klenke v. Kœltze, 75 Mo. 289. Where land or other property is purchased by the husband with the proceeds of his wife’s separate estate, whether the title is taken to her or to himself, it is in equity her separate estate unless her in-, tention to the contrary is shown. 3 Pom. Eq. secs. 1103, 4 ; City Nat. Bank v. Hamilton, 34 N. J. E. 158. We are of the opinion that Mrs. Martin had in equity a separate estate in the land in controversy, and shall proceed to consider a question of more difficulty, viz : Whether by her own deed, her husband not joining her in executing it, she could convey the land % In England the law. has fluctuated on this subject, as will be seen by an examination of the opinion of Judge Leonard in the case of Whitesides v. Cannon, 23 Mo. 457, and that of Green, J., — 232 — in the case of Radford v. Carwill, 13 W. Va. 573, in which the vacillations of the English courts are very ably traced. But in this country the adjudications are nearly all one way. In some of the states statutes have been enacted empowering a married woman to convey real estate held by her as her separate property by deed without joining her husband, as in Maine,'Michigan and Massachusetts. Except in states in which the statute has empowered the married woman, I have found no case in the United States recognizing her right to convey real estate by her own deed where that was the precise question for determination. “This species of property, whether in things real or personal, is exclusively the creature of a court of equity.” Judge Leonard in Whitesides v. Cannon, supra. In equity it is chargeable with her debts, while at law she can contract no debts. Her debts are not liens upon her separate property “by any power of appointment, but by the decree of a court of equity ’making them such.” Lord Cottingham in Owens v. Dickerson, 1 Cr. & Ph. 48. Her power to charge her separate estate is not based on the jus disponendi. In fact she does not charge it, but equity does it for her. Ravis v. Smith, 75 Mo. 219. The whole doctrine on the subject lies within the domain of equity. It is urged that if the power to subject her land to the payment of debts she may contract be conceded, then logically she should have the power to do that directly which she may accomplish by indirect means. Numerous cases recognize the distinction between incumbrances as createcl by deed and liens or charges enforced in equity; and there is this difference between incumbrances placed by the married woman upon her real estate, and those charges which are established as liens against it by courts of equity, that in the former transaction she has no one to protect or guard her interest, while'in the latter the court of equity which estab — 233 — lished the charge will not do it unless it would be inequitable to refuse it. I am aware that the language of Judge Leonard in Whitesides v. Cannon, supra, is broad enough to countenance defendant’s contention here, but that was not a case in which the femme covert had executed a deed or mortgage, but had joined her husband in a promissory note for the payment of which it was sought to subject her separate real estate. What he said was arguendo, and how he would have decided the precise question now before us we can only conjecture. Kimm v. Weippert et al., 46 Mo. 532, wasn similar case. Certain it is that it has not been the practice of conveyancers in this state to prepare deeds for married women to. execute, conveying their separate real estate without joining their husbands. Whitesides v. Cannon, was decided twenty-nine years ago, and I doubt if any married woman within that period has attempted in this state, except in this case, to convey her separate real estate by deed without joining her husband. No such case has ever been in this court. The weight of authority against the proposition is overwhelming. In Story’s Equity (11 Ed.) sec. 1392, Judge Story says : “As to this the received doctrine seems tohe, that if an estate is during coverture given to a married woman and her heirs for her separate use, without more, she cannot in equity dispose of the fee from her heirs, but she must dispose of it, if at all, in the manner prescribed by law.” To the same effect is Roper on the Law of Husband and Wife, Mol 2. 184 ; Wright v. Brown, 44 Pa. St. 237; Peck v. Ward, 6 Harris (18 Pa. St.) 508; Thorndell v. Morrison, 1 Carey (25 Pa. St.) 326 ; Stoops v. Blackford, 3 Carey (27 Pa. St.) 218 ; Harrison v. Stewart, N. J. Eq. 3 Green 451; Armstrong v. Ross, 20 N. J. Eq. 110; Pentz v. Simpson, 2 Beasley, 235 ; McChesney v. Brown's Heirs, 25 Grat. 400 ; Gray v. Robb, 4 Hick. 74; Sherman v. Turpin, 7 Caldwell (Tenn.) 382 ; Miller v. Wetherby, 12 Iowa, 420 ; Dodge v. Hollinshead, 6 Minn. 25 ; Miller v. — 234 — Hine, 13 Ohio St. 565. And the statutes of those states which expressly confer upon the femme covert the power to convey by her sole deed, are recognitions that but for the statute she had no such power, and in most of their adjudications upon cases under those statutes it is conceded that but for such express legislation the married woman has not the jus disponendi of her separate real estate. Our statute authorizes the conveyance of the wife’s real estate by the joint deed of herself and her husband. At common law it could only be done by suffering a line,- or common recovery, and now since they are abolished - she derived all her authority',to convey her land from the, statute. As remarked by Judge Black in Peck v. Ward, 6 Harris (Pa. St.) 508 : “ The salutary ruléis, therefore, in full force, which forbids anyone taking title to the wife’s property, unless it be conveyed by deed, not only with her own free consent, but under the protection and-by the advice of her husband. This is necessary to the happiness and interests of both.” The statute was intended to shield her against any indiscretions into which, her inexperience might lead her, with respect to her property ; to protect her against the schemes of designing* persons who might covet her estate, and, above all, to preserve harmony and happiness in the household which might be seriously disturbed by the conveyance of her real estate, by the wife, without consulting, or, as in this instance, against his remonstrance. Conceding, for the argument, the logical result of the doctrines of the courts of equity in relation to charging the debts of a married woman against her separate estate, to be as contended by appellants’ counsel, I am not aware that that logical result has been'reached by the adjudication of any court of last resort in this country where that was the precise point involved ; certainly no such case has been cited by counsel; whereas, in numerous cases, involving the identical question, the contrary has been expressly ruled. In equity, however, defendant may — 235 — have the amount he paid to Mrs. Martin for the land and, improvements made by him charged against it. The judgment is reversed and the cause remanded with directions to dispose of it as herein indicated.- Norton and Ray, JJ., concur; Black and Sherwood, JJ., dissent.