61 Pa. 382 | Pa. | 1869
The opinion of the court was delivered, March 27th 1869, by
This is an appeal from the decree of the Common Pleas of Lehigh county, dismissing a bill for specific performance, brought by the plaintiff against a married woman and her husband on a contract for the sale of certain real estate belonging to her in the city of Allentown. The bill was demurred to, and an answer was also filed, but it was heard on the demurrer and dismissed.
The bill sets forth that Mrs. Hunter was seised in fee simple, as her own separate estate, of the premises described in paragraph No. 1, and that she and her husband, on the 3d December 1867, entered into an article of agreement with the plaintiff, by which they agreed to grant, bargain and sell to the plaintiff the said premises, for which he agreed to pay to the said defendants the sum of $5500 in manner following, to wit: $275 at the execution of the agreement, and the balance, to wit: $5250 at the execution and delivery of the deed, to wit: on the 1st day of April, A. D.
There being no opinion of the judge filed we are obliged to take the questions as presented by the counsel of the appellant.
1. We entertain no doubt that the court had jurisdiction.
2. If this had been a deed of conveyance executed and acknowledged by the defendants, as this article of agreement was, there can be no doubt that it would have passed the title of Sarah Hunter and her husband to the premises contained in it. The objection to the contracts of married women for the sale of the real estate has been, that they were not executed according to the provisions of the statute. In some cases they were merely verbal, in others that the husband was not a party, in others that there was no separate acknowledgment of the wife. Here all the forms and requisites of the statute were complied with, and the only objection is that it was only a contract to convey and not a conveyance of the land. In Glidden v. Strupler, 2 P. F. Smith 400, my Brother Agnew has put the whole question in a single sentence : “ A married woman has no capacity to contract for the sale of her real estate, or to convey it, except in the precise statutory mode conferring the power.” The converse of this is the law — a married woman has capacity to contract for the sale of her real estate, and to convey it in the precise statutory method conferring the power.
In Crofts v. Middleton, 25 L. J. Ch. 533, as stated in Fry on Specific Performance (100 Law Library), p. 72, it is said: “It is to be added that with regard to real estate, a married lady may, under the Act for the Abolition of Fines and Recoveries, not only dispose of the land, but contract respecting it, if not so as to render herself liable to damages, yet so as to bind her estate of inheritance.”
As this case will go back for further proceedings, we desire to say we only decide that the court has jurisdiction, and that the statutory execution of the contract was in due form, but we decide nothing as to the validity of the contract, or of the tender and its form, nor as to any of the allegations contained in the answer which has been sent up with the demurrer.
Decree reversed, and record remitted with directions to proceed in due order.