Gebb v. Howell

40 Md. 387 | Md. | 1874

Alvey, J.,

delivered, the opinion of the Court.

The title to the property attempted to be conveyed by the deed of the 18th of October, 1871, was acquired by Asseneth Wollet, then a married woman, by deed from Mrs. Kell, and others, in 1856. The property was not conveyed to the separate use of the grantee, hut was conveyed to her generally, and consequently the marital rights of her husband attached. Holding the estate by this title, Mrs. W’ollet, while under the disability of coverture, on the 18th of October, 1871, attempted to convey the property directly to her husband, in trust, without his joinder in the grant. This, it is clear, she was incompetent to do, by any conveyance executed by her alone. The deed of a feme covert is, by the common law, simply void; and except as to her separate estate, settled upon her by deed or will, and with respect to which she may he empowered to act as a feme sole, she can only convey her property in the manner prescribed by statute. In this State, the manner prescribed for the conveyance of the property of a feme covert is by the joint deed of herself and her husband. Code, Art. 45, sec. 11. And as this statutory mode of conveyance was not observed, the deed is void, and therefore without any effect whatever. Shep. Touch., Prest. Ed., 56, and note; Zouch vs. Parsons, 3 Burr, 1805 ; Concord Bank vs. Bellis, 10 Cush., 277 ; Lowell vs. Daniels, 2 Gray, 161.

The only mode by which a feme covert can convey her estate, not held to her separate use, to her husband, except in the execution of a power, is by means of a conveyance to a third person for his use, he joining with his wife in the deed. That this may he done has been expressly decided in Thatcher vs. Omans, 3 Pick., 521.

The trusts declared in the deed before us, and upon which the property was attempted to he conveyed, were, 1st, to the sole and separate use of the grantor for life; 2nd, after her death, then for the use and benefit of her husband, John P. Wollet, for his life ; and, 3rd, after his death, the property to become the absolute estate of Mary Catharine Gebb, the complainant in this cause. The consideration stated in the deed was the love and affection of the grantor for her husband and the complainant, with a mere nominal money consideration superadded.

Notwithstanding the deed is absolutely void, as we have seen, the present application is to have the heirs-at-law of Asseneth Wollet, who died in 1872, restrained from the assertion of their rights to the property,—the husband, John P. Wollet, having also died soon after the death of his wife; and that the trust in the deed in favor of the complainant may be declared to be valid, and for general relief.

But clearly no relief can be afforded. The instrument involved is without effect even as a contract to convey,— the least objectionable footing upon which it could be placed. For, except in regard to the separate estate of a fime, covert, all her covenants, contracts and agreements, in Courts of law, as well as of equity, are absolutely null and void, and she is under no obligation and cannot be compelled to perform them, whether entered into by herself, or on her behalf by her husband, with or without her consent. This has been repeatedly declared by this Court. Burton vs. Marshall, 4 Gill, 487; Norris vs. Lantz and Hyde, 18 Md., 260 ; Steffey vs. Steffey, 19 Md., 5 ; Six vs. Shaner and Wife, 26 Md., 415. This principle only yields to the statutory authority and mode for enabling married women to bind or bar their estate, except in those cases where, in reference to their separate estate, they may be empowered to act as femes sole. Johns vs. Reardon, 11 Md., 470. And as the deed, treating it as a contract to convey, could not be enforced against Mrs. Wollet, if she were living, so neither can it be enforced against her heirs.

It was urged in the argument for the complainant that, as the imperfections of the instrument were occasioned by ignorance and mistake, a Court of Equity is competent to correct the instrument, and to give it suck effect as the parties intended it should have. But, to say nothing of the nature of the consideration displayed upon the face of the instrument itself, this is not a case for the exercise of the equitable jurisdiction for the correction of mistakes. The mistake here, if it can be called such, was one of law simply; a want of knowledge as to■ what the law required to make the deed good and effective. Such mistake or want of legal knowledge forms no proper ground for the assistance of a Court of Equity, in the absence of actual fraud and imposition. Besides, the principle is well established, and results from the propositions before stated, that where there is an omission of some statutory requirement in the deed of a feme covert, essential to its validity, the mistake cannot be corrected by the Court. Dickenson vs. Glenney, 27 Conn., 104; Grapengether vs. Fejerbary, 9 Iowa, 163; Martin vs. Dwetly, 6 Wend., 9.

(Decided 18th June, 1874.)

It follows that the order appealed from, refusing the injunction, must be affirmed, and as the bill makes no case for relief it will be dismissed.

Order affirmed, and bill dismissed.