| Mass. | Jan 15, 1863
The demurrer having been overruled, and the cause heard upon the evidence, all the matters in controversy-are now before us, as well upon the demurrer as upon the merits of the case. The causes of demurrer assigned are as follows :
1. “ That said bill had not been properly signed by the plaintiffs, but is signed by said Mary Burns alone.” It is in fact signed “ Jefferson Burns, by Mary Burns,” and “ Mary Burns.” No rule is referred to which prohibits him from making her his attorney to sign the bill, and we are not aware that any such rule or principle exists.
2. “ That said Mary Burns has not set forth, nor has she, any power of attorney to sign said bill in behalf of Jefferson Burns.” It is true there is no allegation of a power of attorney, nor is such allegation necessary. The husband is named as plaintiff in the bill, she has signed it on his behalf, and he appears to prosecute it; and this is sufficient.
3. “ That said Jefferson Burns has not signed or sworn to said bill.” The matter of the signature is already disposed of; and it is hardly necessary to say that a bill need not be sworn to.
4. The other causes assigned relate to the merits of the case, the substance of them being that Mary Burns is not entitled to the relief which she seeks.
5. But another formal cause was alleged at the hearing which should be considered here. It is contended that, as the remedy sought is only for the wife, the husband is improperly joined with her as plaintiff.
Though a married woman may bring a bill for the protection of her separate interests without joining her husband, and may, in a proper case, make him a defendant, yet it is proper for her to join him as plaintiff with her in a case in which he has no interest. This is because he is the natural protector of her interests, and is in conformity with the rule of law. Story Eq. PL § 63.
We are brought, then, to the question whether, upon the allegations of the bill and the case as reported, Mary Burns has established her claim to the relief sought for.
The object oí the bill is to set aside a deed, as to her, which
This doctrine still prevails in England. The case of Texira v. Evans, which was tried at nisi prius, is cited in Master v. Miller, 1 Anstr. 228, in which Lord Mansfield held a contrary doctrine. In that case the defendant, wishing to raise money, had signed and sealed a bond, and placed it in the hands of an agent, with blanks for the sum and the name of the obligee. The agent borrowed the money of the plaintiff, and filled up the blanks with the sum borrowed and the name of the plaintiff. The deed was held good. But in Hibblewhite v. M’Morine, 6 M. & W. 200, the question arose in respect to a conveyance of
In Davidson v. Cooper, 11 M. & W. 793, the case of Texira v. Evans is again referred to, and is declared to be overruled.
But the defendant’s counsel contend that the English doctrine does not prevail in Massachusetts, New York and Pennsylvania. It is true that in the latter state the authority of Texira v. Evans is adopted, and the case is said to have overruled the authority of Sheppard’s Touchstone, Perkins, and Coke upon Littleton. Wiley v. Moor, 17 S. & R. 438. It has also been adopted in New York, in Woolley v. Constant, 4 Johns. 54" court="N.Y. Sup. Ct." date_filed="1809-02-15" href="https://app.midpage.ai/document/woolley-v-constant-5472359?utm_source=webapp" opinion_id="5472359">4 Johns. 54. In that case, a bill of sale of a ship had been executed, leaving blanks for the recital of the register; and these were filled up after the delivery, by consent of parties. It was held to be valid, on the authority of Texira v. Evans. But the action was trover for the ship 5 and the court remarked that the bill of sale was perfectly competent, with the blank in it, to pass the property. The same case was again cited as authority in Ex parte Kerwin, 8 Cow. 118" court="N.Y. Sup. Ct." date_filed="1828-02-15" href="https://app.midpage.ai/document/ex-parte-kerwin-5465040?utm_source=webapp" opinion_id="5465040">8 Cow. 118, where the bond would not have been valid without filling the blanks
None of the cases decided by this court adopt the authority of Texira v. Evans, though some of them give some countenonce to its doctrines. In Smith v. Crooker, 5 Mass. 538" court="Mass." date_filed="1809-10-15" href="https://app.midpage.ai/document/smith-v-crooker-6403450?utm_source=webapp" opinion_id="6403450">5 Mass. 538, a treasurer had made a bond in which the name of a surety had left blank; and after delivery it was filled up. The bond was held good, on the authority of several ancient cases, the fact being specially noticed that the alteration was immaterial,
Gardner v. Gardner, 5 Cush. 483, cited for the plaintiffs, decides that a deed, signed for the grantor in his presence, and at his request, is good without a power of attorney. Its value as
From this review of the cases decided in this court, it is apparent that they contain nothing decisive of the point before us. Smith v. Crooker is the most favorable to the defendant’s views of any of them; but it does not go further than Eagleton v. Gutteridge, 11 M. & W. 466. In that case, a power of attorney had been executed abroad, and sent to the attorney with a blank for his Christian name. He filled the blank, and this act was held not to invalidate the instrument. But this decision was made by the same court that overruled the case of Texira v. Evans, and at the term prior to the decision of Davidson v. Cooper, and must have been regarded as consistent with that case, and with Hibblewhite v. M'Morine. If the filling of the blank is not material to the validity of the instrument, it may, according to that case and the case of Smith v. Crooker, be filled after delivery.
In the present case, there was no redelivery of the instrument after the blanks were filled. All that the defendant offered to prove was, that he communicated the facts to Mrs. Burns, and she assented to what he had done, and consented that he might hold it as her deed. If the deed had been present and exhibited to her at the time, and she had been made fully acquainted with its contents by reading or otherwise, and had it under her control,
When the paper was delivered, it had no validity or meaning. The filling of the blanks created the substantial parts of the instrument itself; as much so as the signing or sealing. If such an act ban be done under a paroi agreement, in the absence of the grantor, its effect must be to overthrow the doctrine that an authority to make a deed must be given by deed. We do not' think such a change of the ancient common law has been made in this commonwealth, or that the policy of our legislation favors it, or that sound policy would dictate such a change. Our statutes, which provide for the conveyance of real estate by deed, acknowledged and recorded, and for the acknowledgment and recording of powers of attorney for making deeds, are evidently based on the ancient doctrines of the common law respecting the execution of deeds; and a valuable and important purpose which these doctrines still serve is, to guard against mistakes which are likely to arise out of verbal arrangements, from misunderstanding and defect of memory, even where there is no fraud. The present case shows how dangerous the contrary doctrine would be. Mary Bums states in her bill that the verbal agreement made between her and the defendant was, that her interest in her husband’s land should be held to indemnify the persons who should become bail for his appearance at court, and for no other purpose, and that the deed was filled up as an absolute conveyance, contrary to this agreement. She makes oath to the truth of these allegations, and it is to be presumed that she believes them to be true. The defendant offered to prove the contrary ; and probably he would have been a witness to prove his statement. It is to be presumed that he so understood the agreement. If this method of executing deeds is sanctioned, it will follow that, though the defendant has a regularly executed deed, yet it remains to be settled by paroi evidence whether he ought to have been the grantee, what land should have been described, whether the deed should have been
And in respect to agreements which do not relate to real estate, it is highly useful that a class of instruments should exist, to which persons may resort with a feeling of confidence that they shall not be binding till they are formally executed, and that when thus executed they shall not be liable to be varied or controlled by paroi evidence. The importance of these formalities is greatly increased by the fact that parties are now made competent witnesses. The convenience which men might occasionally find in leaving blanks in sealed instruments to be filled after delivery, would be but a slight compensation for the evils which would follow the abrogation of the ancient rule of the common law.
The deed not having been executed by Mary Burns must be regarded as void, so far as her estate is concerned. It is valid as to her husband, so far as he could by his sole deed convey land in which a right of homestead existed ; that is, it conveyed his reversionary interest after the termination of the homestead estate. Smith v. Provin, 4 Allen, 516. As to the homestead estate and the wife’s right of dower, the deed constitutes a cloud upon the title, and a bill in equity lies to remove such cloud, in cases where there is not a plain, adequate and complete remedy at law. 2 Story on Eq. § 700. Hamilton v. Cummings, 1 Johns. Ch. 517" court="None" date_filed="1815-09-27" href="https://app.midpage.ai/document/hamilton-v-cummings-5550127?utm_source=webapp" opinion_id="5550127">1 Johns. Ch. 517. Scott v. Onderdonk, 4 Kernan, 1.
It is obvious that Mary Burns could not maintain an action at law in respect to her right of dower; and as she is in the occupation of the premises, living in the dwelling house, she could not, without abandoning the possession, maintain a writ of entry in respect to her right of homestead. Stearns on Real Actions, 215, 216. Her only remedy is in equity.
The defendant contends that she has no equity which the court should enforce, until she pays his claim' against the husband, being an account for services and expenses in defending the husband in several criminal prosecutions, and for supplies
A decree should be entered that the defendant execute to Mary Burns a release of all the rights of dower and homestead which the deed purports to convey to him, to be framed according to the direction of the court; and that the plaintiffs recover their costs of suit.