4 Barb. 407 | N.Y. Sup. Ct. | 1848
No question arises for our determination, as to lot No. 2. That was owned by Mrs. Eliza Bay, in fee, and the mortgage being executed by her and her husband, and duly acknowledged by her as a feme covert, created a valid lien on that lot. But it is contended, on the part of the defendants, that the mortgage is void as to the other lots, on the grounds that Richard S. Treat did not join with his wife in the mortgages, and that the trustees were not authorized to execute such mortgages. The first ground is the one principally relied on by the defendants’ counsel, and is controlling as to lot No. 1, on which the buildings were erected, and which lot constitutes the chief security for the money
The defendants’ counsel claims that it was a rule of the common law that the wife could not convey by deed unless the husband joined in the conveyance, and that such is the law of this state. The general common law rule is laid down to be, that the husband must be a party with the wife to her conveyance; but if she levy a fine as a feme sole, without her husband, though it will be good as against her and her heirs, the husband may avoid it during coverture, for the benefit of the wife as well as for himself. (2 Kent’s Com. 151. Perkins, § 20. Shep. Touch. by Preston, 7. Bro. Abr. Tit. Fines, pl. 75.) At common law a feme covert could convey her real estate in no other way except by fine or a common recovery. Yet such has not been the law in this state; for although fines and common recoveries were not abolished here by statute till 1830, (2 R. S. 343, § 24,) it had always previously been the practice for a married woman to convey by deed. Under the government of the colony of New-York, a feme covert conveyed by deed, upon the usual acknowledgment before a competent officer; and by the act of February 16, 1771, such previous conveyances were confirmed. And as to future conveyances it was enacted that no estate of a feme covert should thenceforth pass by deed, without a previous acknowledgment
None of the acts above cited make any distinction between a deed executed by a feme sole with her husband, and one executed by her alone, and it is argued that the language used implies that a deed executed by a feme covert, alone, and properly acknowledged, is valid. The statute is as follows: “ The acknowledgment of a married woman residing within this state, to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section, she acknowledge on a private examination, apart from her husband, that she executed such conveyance freely, and without any fear or compulsion of her said husband; nor shall any estate of any such married woman pass by any conveyance not so acknowledged.” It is only when she resides out of the state that she is required by statute, “ to join with her husband ” in the conveyance of any real estate, situated within this state, and in such case she is permitted to acknowledge the deed as if she weresoZe. It is provided by statute that if a married woman executes a power by grant, her husband need not be a party to the conveyance, but it shall not be valid unless acknowledged by her as a feme covert. (1 R. S. 736, § 117.)
It has never been judicially settled, in this state, whether a husband must join the wife in a conveyance, to give it validity. It seems to have been taken for granted, by Ch. J. Spencer, in Jackson v. Vanderheyden, (17 John. Rep. 167,) and by Justice
The reason assigned why the husband was required to join with his wife in the conveyance was that his assent might appear upon the face of it, and to show he was present to protect her from imposition. (2 Kent’s Com. 152.) But when, as in this case, the assent of the husband is clearly shown, and the transaction was greatly to the advantage of the feme covert, such a practice seems no longer necessary for her protection. But whatever may be the common law rule on this subject, there are, in equity, exceptions to its operation, long recognized and well established. It is abundantly settled by authority that with respect to her separate property a feme covert is to be regarded in equity aso. feme sole. (Murray v. Barlee, 4 Simons, 82. Willats v. Cay, 2 Atk. 67. Clerk v. Miller, Id. 379. Norton v. Small, 2 P. Wms. 144. Hulme v. Tenant, 1 Bro. C. C. 16. Heatley v. Thomas, 15 Ves. 596. 18 Id. 258. 3 Mad. 387.) In Jaques v. The Methodist Episcopal Church, (17 John. Rep. 548,) this doctrine was fully sustained, and the court for the correction of errors there decided that where a trustee held property for the separate use of a feme covert, she might dispose of it, even without the consent or concurrence of her trustee, unless^specially restrained by the instrument under which she acquires her separate estate; and that though a par
To enable the wife to have and hold a separate estate, it is not necessary that it should be conveyed to. a trustee, for her use, (Story's Eq. § 1380,) though such is the usual practice;
As to lot No. 3, there is still less question. The estate of Mrs. Treat in that lot was created by the devise of Doct. Samuel Stringer, who placed it in charge of trustees for her separate use, and made it subject to her unlimited direction and control. I think the acts of the trustees, in executing the mortgage, were clearly within the powers conferred on them. But however that may be, the right of Mrs. Treat to bind it by the execution of the mortgage, as held in Jaques v. The Methodist Episcopal Church, above cited, cannot be controverted.
The view I have taken of this case renders it unnecessary to inquire whether the acts of Mrs. Treat, after the death of her husband, were a ratification of her engagements made during coverture. Independent of that question, I think the mortgage a valid and subsisting lien on all the lots described in it. The plaintiffs are therefore entitled to the usual decree of foreclosure ; and the decree of the vice chancellor must be affirmed, with costs.