Crane v. Thurston

4 N.H. 418 | Superior Court of New Hampshire | 1828

Richardson, C. J.

We shall, in the first place, examine the titles of these parties to the locus in quo, independently of the judgment in favour of Chamberlain in the writ of entry, and then consider the effect of that judgment.

The only evidence of title, which the plaintiff has shown, with the exception of what may result from his possession, is Morley’s deed of the 16th January, 1807. But admitting that Morley’s previous conveyance of all his interest to Ladd, was without any legal effect, it is clear, that Morley had, at most, only an estate for his own life, and that when he died there was an end of the title which the plaintiff derived from him.

But the plaintiff has had possession, and although that has not been quiet and undisturbed, yet still it is sufficient evidence of title against all, who can show no better evidence of title.

The title, upon which the defendant relies is this— Morley and wife being seized in fee in her right of the land, agreed to separate and live apart. In pursuance of that agreement, Morley, by deed, conveyed all his interest in the land to Ladd, his wife’s father, in trust for her, and covenanted that she should have power to dispose of her property as a feme sole. And then Ladd and the wife joined in a deed, which purports to convey the land to Chamberlain in fee and the defendant has now Chamberlain’s title. The question then is, what passed by this deed of Ladd and his daughter ?

We entertain no doubt, that the interest of a wife in land, may be conveyed by a deed made jointly by the husband and wife. 3 Pick. 521, Thatcher v. Omans, et a.; 2 N. H. Rep. 402, Gordon v. Hayward; ibid. 525, Elliot v. Sleeper.

But the general rule is, that the deed of a married woman, in which her husband does not join, is utterly void. 7 Mass. Rep. 21 ; Shep. Touch. 55 ; Co. Litt. 42, 6, note 249 ; Perkins, sec. 6 and 41.

To this rule there are, however, exceptions.

1st, Where a husband by deed, conveyed lands, and his wife afterwards, in his life time, by a separate deed released her right of dower to her husband’s grantee, the deed of the wife was held to be valid to estop her to demand her dower in the lands after the death of her husband. 2 N. H. Rep, 507, Shepherd v. Haward. In addition to the reasons on which that decision is grounded, that are stated in the report of the case, it may be remarked that the provincial act of the 13 W. 3 cap. 12, which declares that nothing in that act shall be construed to bar any widow of a vender or mortgagor from her dower, a -who did not legally join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself from such her dowry,” Prov. Laws, 20, and the statute of February 10, 1791, entitled “ an act declaring the mode of conveyance by deed,” which contains a similar clause, seem indirectly to sanction a separate deed in such a case.

2d, It has been held, that where any estate has been given or granted to a married woman for her sole and separate use, she, in relation to such property, is to be considered as a feme sole and may dispose of it by her separate deed. 1. Vesey, Jr. 189, Pybus v. Smith; 13 Vesey, 190, Sturgis v. Corp; 17 Johns. 548, Jaques v. The M. E. Church; 3 Johns. Ch. cases, 77, S. C.

And the right of a feme covert to the control of property which she has to her separate use, is recognised and protected, as well in courts of law, as of equity. 4 B. &. A. 419, Innell and Wife v. Newman et a.; 1 H. Bl. 334, Compton v. Collinson.

But when a married woman is made a feme sole with respect to particular property by any instrument, her faculties as such, and the nature and extent of them are to be collected from the terms of the instrument making her such. 1 Vesey, Jr. 189, Pybus v. Smith.

These are all the exceptions to the general rule which it is necessary to consider in the present ease.

Whether the instrument, under which a feme covert claims to exercise the power of disposing of land by her separate act, is made by her husband, or by a third person, a clear intention to give her such power must appear. 3 Vesey, 166, Brown v. Clark; 5 ditto. 516, Lamb v. Milnes; 3 ditto. 437, Hyde v. Price; 19 ditto. 417, Adamson v. Armitage.

In the case now before us, there is no doubt as. to the intention of Morley. It was most clearly his object to place the land in such a situation that his wife might dispose of it, as her own property. And we entertain no doubt, that the deed of Ladd and Susannah Morley, were sufficient to pass the whole estate to Chamberlain. It is therefore clear, on the face of the deed, that the defendant has a legal title to the land.

And we are inclined to think, that if it were otherwise, this plaintiff would be estopped by Chamberlain’s judgment to claim the land against this defendant, who is not to be affected by the amendment made after he purchased the land.

Judgment on the verdict.