79 Va. 43 | Va. | 1884
delivered the opinion of the court:
Two questions are presented for determination on this appeal. First. Whether a defective execution of a power by a married woman will be aided by a court of equity; and if so, then, second, whether this is a proper case for such belief.
It is laid down as a general rule, in respect to the execution of powers, that the forms required by the instrument creating the power must he strictly pursued; for the person who creates the power has the undoubted right to create what checks he pleases to impose, to guard against a tendency to abuse. 4 Kent’s Comm., marg. p. 330; 2 Minor’s Insts. 741; 2 Lom. Dig. 163. Where, however, the execution of the power is defective, not in substance hut in form, and the defect is occasioned by inadver
In the present case, by the deed of June 4, 1870, the trust property, a house and lot in this city, was settled upon Mrs. Eacho, as her separate estate, free from the liabilities of her husband, with power, by a writing under her hand and seal, attested by two witnesses, to direct the trustee to sell or encumber it. But in neither case was the writing under seal by which she directed the trustee to execute the two trust deeds by which the notes were secured which are held by the appellee, Haxall. In each case a scroll was annexed to the signature, but was not recognized as a seal in the body of the instrument, and cannot, therefore, have the effect of a seal. Clegg v. Lemessurier, 15 Gratt. 108. It is manifest, however, from all the surrounding circumstances, that she intended to execute the power, and that the omission to recognize the scroll in the body of the instrument was the result of mere inadvertence or mistake. The question then, is, will the defect be aided as against the donee, who is a married woman?
It is well settled that in respect to her separate personal estate and the rents and profits of her separate real estate, a married woman is regarded in equity as a feme sole, with power to dispose of it, as an incident to such estate, except so far as she may be restrained by the instrument creating the estate. It is not so, however, in respect to the corpus of her separate real estate. That, of course, she can dispose of in the mode prescribed by
But to the extent that she is empowered to act, the disability of coverture is taken away. We do not mean to say that this is so without qualification, or that her agreement to do what she is empowered to do in respect to the estate would.be specifically enforced by a court of equity, for no such question arises in the present case. Here it is not sought to enforce an agreement entered into by the donee of the power, and which she refuses to perform, but to give the intended effect to an act done by her in the attempted execution of the power, and which, by an oversight or mistake, is defective in form.
Being competent, then, to execute the power, and having thus defectively done so, the fact of coverture would seem to afford no just ground for the refusal of its aid by a court of equity to supply the defect. We are not aware that the question has ever been expressly decided by this court, but it is well settled in England, notwithstanding what was extra-judicially said by the Master of the Rolls in Martin v. Mitchell, 2 Jac. & W. 424, that the defective execution of a power by a married woman will be aided in just the same manner as if she were sui juris, and that to the extent of her power, she is regarded in equity as sui juris. Pollard v. Grenvil, Chancery Cases, 10; Doe v. Weller, 7 T. R. 480; Stead v. Nelson, 2 Beav. 245; Tollet v. Tollet, 1 Lead. Cases in Eq. 232; 2 Sugden on Powers, marg. p. 96.
And the same doctrine is laid down by Judge Lomax, who says, that though appearing at one time to have been doubted, it is now settled that a defective appointment by a married woman will be aided. 2 Lom. Dig., marg. p. 179. It would seem strongly inconsistent to hold that to the extent she is em
The case is, therefore, unlike an application to reform a married woman’s conveyance under a statute relating to alienations by married women. And the distinction is obvious. At common law a feme covert had no power to convey her lands, except by fine and recovery. This disability, however, is, to a certain extent, removed by statute in this and doubtless in most, if not all, the states of the union, whereby she is enabled, by uniting with her husband and by privy examination, to make a conveyance of her property. But these statutes being in derogation of the common law, are strictly construed, and must be closely followed to give validity to the conveyance. The courts, therefore, very properly refuse to reform such a conveyance as against the wife; for to do so would be in effect to. make a conveyance not authorized by the statute. And the same rule applies to a defective acknowledgment of a married woman, which is an essential part of the execution of the deed.
It is well settled that relief against a defective execution of a power will he granted only in favor of one who has a superior equity to the party against whom relief is sought; and the appellant insists that the instruments directing the execution of the trust deeds under which Haxall claims being defective, the recordation of those deeds was a nullity, and that therefore they ought not to he preferred to the trust deed in his favor, although the latter was subsequently recorded. In the present case Haxall purchased the secured notes for value, and is a bona fide purchaser under section 5, chapter 114, Code 1873. Davis v. Beazley, 75 Va. 491; Shurtz v. Johnson, 28 Gratt. 667; Exchange Bank of Virginia v. Knox, 19 Id. 747.
The notes were executed and endorsed by the husband of the cestui que trust; hut it does not appear, nor is it material,
Decree affirmed.
