| Miss. | Dec 15, 1853
delivered the opinion of the court.
The first question for consideration in this case is this, Did the purchase of the slave by Mrs. Slavins, with the money arising from the sale of her dower interest, vest the title to the slave in her husband ?
It is shown, that the purchase was made by the means of the wife derived from her separate property. The money never came to the possession of the husband, but passed, immediately on the receipt of it by the wife, to the person from whom the slave was purchased. The husband incurred no responsibility on account of the sale of the dower interest, and did no act tending to show that he claimed any interest in the money. He must be presumed to have been aware of the purchase of the slave, and to have acquiesced in it. He might have had a right to the money had he chosen to exercise it. But he seems to have acquiesced in such a disposition of it by the wife as to continue the avails of it as her separate property, in the same manner as the property from which it was derived stood; and it seems that her separate property was simply changed from one form into another. This right necessarily results from the power of the wife, under the first section of the act of 1839, in relation to the rights of married women, to acquire “ any property by direct bequest, demise, gift, purchase, or distribution,” so that she has a perfect right to purchase property, subject only to the restriction, that it “ does not come from her husband after coverture.” Now, she could only purchase property by applying her separate estate, or the avails of it, to make the purchase; and to deny her that right would be to take away a power distinctly conferred by the statute. We think it, therefore, clear that a married woman may sell her separate property, in the mode required in the statute, for the purpose of purchasing other property, and when the proceeds are so applied, that the property thereby acquired becomes her separate property; and that this is especially true when the sale by her, on the one hand, and her purchase on the other, are parts of the same ob
The next question is, Did the bill of sale from Slavins and wife pass the title to the defendant 1 The 5th section of the act of 1839, above referred to, provides that the separate slave property of a feme covert may be sold by the joint deed of the husband and wife executed, proved, and recorded agreeably to the laws “in regard to the conveyance of the real estate of femes covert, and not otherwise.” It has been repeatedly held by this court, that all other modes of conveying such property, since the passage of that act, are void; and it follows, that if the conveyance does not conform to the mode required in all respects, it does not convey the wife’s separate property. Is this instrument, then, executed and proved agreeably to the laws regulating the conveyance of the real estate of femes covert ?
The statute of 1822 provides, that no estate of a feme covert in lands shall pass by her deed, “ without a previous acknowledgment made by her, on a private examination apart from her husband,” before a competent officer, “ that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband.” It "is manifest that this instrument does not fill these requisitions. 1st, it does not show that the wife was examined “ apart fro.m her husband.” This is the essential thing to her free and voluntary act which the statute requires to be made to appear, in order to destroy the presumption that the presence of the husband would tend to operate as a constraint upon the wife. The statute requires that this constraint should be shown not to exist, by providing that the act shall be done “ apart from her husband.” This must be shown positively and distinctly, and is not to depend on inference. The acknowledgment here shows that the wife was examined “ privately,” but it is impossible to say from that whether her husband was present or not, and the term does not necessarily exclude the possibility of the husband’s presence. And although it may not be necessary to
It is clear, therefore, that this acknowledgment was not in conformity to the statute, and that it did not, for that reason, convey the slave to the defendant.
This conclusion may operate harshly upon the defendant, who claims to be a bond fide purchaser without notice. But it is nevertheless our duty to declare the law whenever it is manifest, without regard to the particular loss resulting from it. If, however, the rights of the parties depended upon whether the defendant was a bond fide purchaser without notice, it is by no means clear that he is entitled to occupy such a position, for it appears by his answer, though he claims to have purchased the slave from the husband as his absolute property, that he took the bill of sale from the husband and wife and undertook to have it acknowledged, which would have been unnecessary had the purchase been made from the husband alone; and this goes far to show that he had notice of the wife’s claim.
The decree of the chancellor should have been in favor of the complainants, for the slave in controversy, and for an account of the hire, to be taken in the following manner. Inasmuch as the husband would have been entitled to the hire during his life, and the bill of sale was valid as to his interest in right of his wife, which was one third, the other two thirds belonging to the two children, the defendant is accountable for the amount of the hire from the time of sale to him, deducting therefrom one third of the amount for the husband’s interest during his life, and extending to the time of filing this bill, one third of the amount of the hire to be decreed to the complainant’s wife from the time of filing this bill, and two thirds to be decreed to the children from the time of the sale to the defendant.