68 Mo. 224 | Mo. | 1878
The principal question in this case is whether a married woman can avoid a deed for her real estate, made by her and her husband, when she was over eighteen and under twenty-one years of age.
That the infancy of a married woman will make her deed voidable, notwithstanding its execution in the form prescribed by our statute in regard to privy examination, is well settled by the uniform decisions of this court from the case of Youse v. Norcom, 12 Mo. 549. down to the latest decision on the subject. Peterson v. Laik, 24 Mo. 541; Schneider v. Staihr, 20 Mo. 271; Baker v. Kennett, 54 Mo. 83; Huth v. Carondelet M. R. & D. Co., 56 Mo. 208. This appears to be also well established elsewhere, and Chancellor Walworth, in Sandford v. McLean, 3 Paige 117, explains the reason of the distinction. “ The statute,” says the Chancellor, “which malses valid the deed of a femme covert when executed with her husband, and acknowledged by her on a private examination, was never intended to sanction or validate a conveyance by an infant wife. There is a plain and obvious distinction between the disability of a coverture and that of infancy. The first arises from a supposed want of will on account of legal power and coercion which the husband may exercise over the volition of the wife. This disability is removed by the private examination of the wife in the absence of her husband, by which it is legally ascertained that such power and coercion has not been exercised in that particular case. But the disability of infancy arises from the supposed want of capacity and judgment in the infant to contract understandingly.” See also Hoyt v. Swar, 53 Ill. 134.
In the same code of 1865' is found a statute concerning wills, which, in its first section, declares that “ every person of twenty-one years of age, or upwards, of sound mind, may, by last will, devise all his estate, real, personal and mixed, and all interest-therein,” &c. .Perhaps this section was intended only for males, as the words “his estate”
I have referred to these satutes concerning wills and limitations, to show that so far as the subjects provided for in them are concerned, the sweeping clause, in the act concerning guai’dians and curators, must be understood with some modification. But the point in the case now under consideration relates to conveyances only, and we must look at the statutes regulating them, in order to determine whether that act in 1865, so modified the admitted law previous to it, as to conform it to the first section of the act concerning guardians, &e.
The first section of the act concerning conveyances in the revision of 1865, is as follows: “ Conveyances of land or of any estate or interest therein, may be made by deed,
Roth sections were introduced for the first time into the code, and it is not impossible to reconcile them. It is certainly singular, if it vras the design of the Legislature to make so material a change in the law of conveyances, that it was not plainly and specifically done in terms, and it is equally strange that unmarried females are not allowed to make testamentary devises till twenty-one, whilst married women were authorized to make them before eighteen as the law stood in 1865, and after eighteen as the law was amended in 1868. We have, however, concluded, after some hesitation, that the addition of the first section to the law of conveyances, may be reconciled with the first section of the guardian law, by understanding the former as a recognition of the change made by the latter, and, therefore, allowing all females, married and unmarried, to convey their real estate. No distinction is made between married and unmarried females, and as the disability of infancy is not removed by marriage, no distinction in this respect could properly be made, though it is made in regard to wills. In so important a matter, and one in which the ancient law was so well understood, the change ought to have been made in terms, that would have admitted of no miscon
This view of the subject renders unnecessary any consideration of the question involved in the refusal of the circuit -court to give the second instruction. Judgment affirmed.
Affirmed.