| Superior Court of New Hampshire | Oct 15, 1821
delivered the opinion of the court.
William Smith was once the owner of the land in dispute. All his title passed by the deed to P., except as against creditors. The tenant is one of those creditors ; and can hold the land, as it was then conveyed without consideration, unless the subsequent conveyances have cured that defect, and are in such form as to be valid. In respect to the consideration of them, they have cured the former defect ; because the demandant and Denis, through whom the demandant claims, both paid a fujl price, and do not appear to have had any notice of the former want of consideration. 1 Sid. 134.—Holt 477.—3 Lev. 387.—1 East 95.—6 Cranch 133.-5 John. 48.—10 ditto 197.-13 ditto 471.—14 ditto 407.—1 John. Chan. cases 533.
The only remaining question is, whether the subsequent conveyances were in form valid 1 The deed from P. to Sally Smith, though to a feme covert, was with the assent of both her and her husband ; because afterfeards they both undertook to convey under it. The title of the land, therefore, became legally vested in her.
The principal difficulty arises from the peculiar form of the subsequent deed to Davis. The husband and wife did not join in the use of the same words of conveyance, which joint form is contended to be the only legal form. Nor did one use certain words of conveyance, and the other, by jointly signing and sealing, attempt to adopt them as the words of both ; which mode, notwithstanding the decisions in Massachusetts to the contrary, would perhaps be found, oh full examination, to be equally effective. But on the same
The first objection to the words used by the husband is, that the expression, “ quit my right,” Sic., is not tantamount to the words,ki sell” or “ release.” But the best lexicographers assign to it a similar meaning ; and by it the husband clearly intended to abandon, resign or quitclaim to the grantee all his interest in the premises.(l )
The next objection is, that the husband grants only to Davis, and not to Davis and his heirs. It is true this passes merely a life estate. But it is to be remembered, that the husband possessed only a life estate, and consequently all passed which he possessed.
The last and great objection is, that the grantors being-husband and wife, they cannot convey their several interests, like persons not standing in that relation, but must join in the use of the same language, at the same time and in the same instrument. But if the custom, by which the wife is enabled to convey by deed (for the husband could always convey his interest independent of any custom, and alone) be examined, we think this last objection must also fail.
The custom is not of New-England origin, as has been elsev, here remarked,(2.) but always prevailed in certain pn’ts of Eriiland ;(3) and has long been adopted ki Penn-cylvauR, (1 Ita'l. 1!. — 1 Bin. 470) in New-York, (15 John. J .... . [ 14) and in Virginia, (2 Bktc. Com. 356, note, Tucker's e.di.) Tins custom has doubtless grown up as a simple and cheap
substitute for common recoveries and fines, by which femes covert could at common law convey their estates. To ascertain the spirit and character of the custom, it may be observed, that if a wife suffer a recovery or levy 'a fine alone, her title passes as to every body but her husband ; and when he joins with her, it is only to pass his own estate and to perfect the conveyance of hér’s in respect to himself, by an expression of his consent. Com. Dig. “ Baron F."& P.—10 Coke 43, a.—1 Leon. 82.—Shep. 24.—15 John. 558. “ A fihe levied by her alone is avoidable only by her hus- “ band.” 1 Hen. Blue. 341, Compton vs. Collinson. On the other hand, he could always convey alone his interest in her estate, either by deed or by fine. The reason, then, of their joining in a deed is not, that their respective interests might not as well pass in separate deeds; but, that the assent of the husband to her conveyance may appear upon the face of it; and also, perhaps, that he may appear to have been present to protect her from imposition or undue influence. Thus, where his assent is not necessary to the validity of her conveyance, as in the case of dower, she in ay alone, and in a separate deed, and at a separate time, convey her right of dower.(l) But in the present case, his assent and presence appear on the face of her deed ; and he, as well as she, uses language calculated to pass all his interest. Moreover, they use it at the same time, on the same paper, and jointly sign, seal, and deliver the paper. The spirit and end of the custom is then fulfilled ; and if there be a difference in form by the failure of the husband and wife to use the same identical words, it is an immaterial difference, because so far as they use words of conveyance applicable to their respective interests, which are the only material words, they use words possessing the same legal effect.
The cases of Lithgow vs. Kavenagh,(2) and Fowler vs. Shearer,(3) present a state of facts somewhat different; and, independent of that circumstance, we do not feel prepared to yield a full assent to their correctness.
Judgment on the verdict.