Husband and wife holding lаnds by a conveyance to them, are not joint tenants. They are seised per tout, but not per mi. They are each owner of the whole, but not of thе half. They must both join in a conveyance. They are both necessary to make one grantor; and the deed of either without thе other is merely void.
At the death of Charlton, therefore, the whole estate in the premises in question became vestеd, by right of survivorship, in Mrs. Oharlton. Thus far the counsel on both sides agree. Of this Mrs. Charlton was apprised while she was sole owner. What she subsequently did, wаs done
If, indeed, this acknowledgment was void, and passed no estate, then Mrs. Charlton was seised at her death, and the plaintiff must recover, unless, by her acfs, she was estopped from asserting her title. But why should a deliberate act of this kind, by a persоn competent to *convey, be inoperative and void? The instrument contains, upon its face, every thing necessary to a perfect conveyance, She is described, indeed, as a feme covert; and he^ husband is a party with her; but there is no question as to the identity of the grantor. There is, perhaps, a false description, and a person inserted as grantor, not in esse, when she acknowledges the deed. But it is still her act and her conveyance. It is sufficient for transferring all her interest to the grantee for the purposes exрressed. It cannot be denied, that after the death of her husband, when she became sole owner, she alone might have conveyed the premises to Mr. Munro, Then, does the name of her deceased husband vitiate her deed? Surely not. It is merely surplusage. It hаs no effect whatever. Suppose a sole owner of a lot of land draws a deed conveying his land-upon sufficient consideration, and in due form; and three or four names are inserted in the body of the deed as grantors, but no one signs except the owner; can he reclaim the land which lie has thus conyeyed, on the ground that the other grantors did not convey; or can a feme sole avoid her deed by describing herself as a feme covert ? Cleаrly not. On what ground is it, then, that the acknowledgment by Mrs. Chari
It is undoubtedly true, that a devise with power to convey in fee, carries a fee; though a dеvise with power to devise in fee, carries but a life estate. But the intention of the testator is always a cardinal point in construing *wills; and in this case that intention is not left to construction.
It is explicitly expressed. An estate for life, and no greater, is given ; and as to the lots in question, the wife had no power to sell. All her acts were in affirmance of the will. She received rent on the leasе to Roosevelt.
On the question of relation, I cannot accede to the position of the defendant’s counsel. In all сases where a subsequent act is held to relate back to a thing antecedent, there must be something to which relation may bе had, something inchoate, imperfect; but still something.
I shall not go into an examination of the cases; but I think I hazard nothing in the assertion, thаt in none of them was relation had to a void act. In Jackson v. Stevens, (
Therе were many questions discussed on the argument with great learning and ability; but, if I am correct in giving effect to the acknowledgment as of the date of the transaction, then any further examination becomes useless.
I am of opinion that the defendant is entitled to judgment.
Judgment for the defendant.
Notes
See Jackson v. M'Connell,