113 A. 279 | N.H. | 1921
If Susan P. Adams had no title to the lands conveyed to Warren and to Huckins, the deeds conveyed nothing. But it does not follow that the deeds are void because for this reason these defendants failed to acquire title to the land. Unless some other reason appears for setting the deeds aside, they remain valid. Mrs. Adams is liable on the covenants and the deeds will convey any other title she has or may have to the land. No question has been raised as to the authority of the court to order the deeds "expunged from the records." The power to make such an order and the method of its practical execution not being questioned by the parties, are not considered.
If Mrs. Adams had at the date of her deeds to Warren and to Huckins title to the lands conveyed as heir of her father, her deeds *82 conveyed title to them. She attempted in 1883 to convey her title to this land to her husband. The court ruled that it was unnecessary to pass upon the validity of this deed because he found upon evidence, the sufficiency of which is not questioned, except for the legal effect of the marriage relation between the parties, that Mrs. Adams was estopped to question the validity of her deed and because Francis P. Adams had acquired title by adverse possession.
At common law the deed of a feme covert which was not also executed by her husband passed no interest and was a mere nullity. Dickinson v. McLane,
At common law husband and wife could not contract at all. Under the laws in force in 1876 they could contract as to her separate property. This proviso did not repeal all the legislation from 1846 to date, but only retained the general prohibition of the common law as to contracts between husband and wife not relating to her estate. Neither did it restore the common-law rights of the husband to the income of the wife's estate. Burleigh v. Coffin,
At common law a married woman could charge her separate estate with the payment of her husband's debts. Babbitt v. Morrison,
As the act of 1876 did not destroy a married woman's power to contract with her husband for a sale of her estate to him, Mrs. Adams had in 1883, and ever since has had, capacity to make such a contract. Having the same capacity to make such a contract as any landowner, proof of facts which would estop another from denying the fact of such sale would estop her. As she could agree with her husband upon what terms he should occupy real estate to which she had or might make claim, she could assent to his exclusive occupation under a claim of right sufficient to establish a title by prescription. Although Mr. and Mrs. Adams lived together as husband and wife, the findings *86 are understood to mean that they did not jointly occupy the land in question. As she could sue him for money loaned, she could sue him for excluding her from the occupation of her real estate, or by other assertion of her title, if she claimed any, have prevented the statute from running against her. Upon both grounds upon which the ruling of the court is placed it is sustainable.
But no defect is perceived in the direct deed of Mrs. Adams to her husband. As she could agree directly with her husband to sell her estate to him and sell it to him, she necessarily possessed the power to execute the sale. The unity of person which at common law rendered void all contracts sealed or otherwise between husband and wife in this state no longer exists. Carpenter, J., Hodgman v. Kittredge,
Case discharged.
All concurred. *87