Bruce v. Wood

42 Mass. 542 | Mass. | 1840

Shaw, C. J.

The present question depends wholly upon the construction of the deed of Isaiah Bruce, the demandant’s former husband, and upon the further question, whether she herself was bound by it. This deed was dated April 11th, 1800, by which Isaiah Bruce conveyed to Phinehas Sawyer certain estate described, not now in question, and “ also three shares, being one half, of the reversion of dower ” described; two of which are described as acquired by purchase, “ the other share as 1 had it by marrying my wife.” It is in respect to this one sixth of the land, of which he and his wife were then seized in her right, in reversion, that the question now arises. The deed is wholly in the name of the husband, until the closing part, which is expressed as follows : “In testimony whereof, I the said Isaiah Bruce, anl I Mary Bruce, wife of Isaiah, in token that I relinquish all m; right in said bargained premises, have hereunto set our hands and seals.” The question is, whether this is sufficient to convey lands in fee, of which the husband and wife are seized in her right; and we are of opinion that it is not. We consider the point too well settled by the authorities to be now shaken. By the law and usage which have prevailed here from early times, the deed of husband and wife, conveying her estate, has been deemed sufficient; and where a statute authorized the barring of estates tail, by deed, conformably to the statute, it was held as a necessary result of the established law and usage, that a deed by husband and wife, duly executed, was sufficient to pass in fee an estate of which she was seized as tenant in tail. Nightingale v. Burrell, 15 Pick. 104. But it has also been steadily held, that to have this effect, the wife must join in the deed; that is, it must appear that both husband and wife were parties to the efficient and operative parts of the instrument of conveyance, and that it is not sufficient that her name was annexed, as expressing her assent to the. act of her husband, and without words showing her formal participarion in the granting part of the deed. Lithgow v. Kavenagh, 9 Mass. 161. Powell v. Monson & Brimfield Manuf. Co. 3 Mason, 347. Lufkin v. Curtis, 13 Mass. 223.

In the case cited from 9 Mass, the subject was very fully considered, and we think the decision quite applicable to the present case.

The court are also of opinion, that upon the decease of her husband, the demandant was restored to her right of entry, and right to an action on her own seizin. By the ancient common law, the feoffment by the husband, of the wife’s estate, operated as a discontinuance; and after his decease, she and her heirs could regain their right only by action. But this was altered by Si. 32 H. VIII. c. 28, which gives the wife and her heirs a right of eutiy, after the decease of the husband. This statute, having been passed before the emigration of our ancestors, must be taken to be a modification and amendment of the common law in force here. Upon the facts stated, the court are of opinion that the demandant is entitled to recover.

Tenant defaulted.