Green v. Tuttle, 48 P. 1009

Green v. Tuttle

48 P. 1009 | Ariz. | 1897

HAWKINS, J.

(after stating the facts).—Numerous errors are assigned, but it is not necessary to notice any except (1) that the lands being community property, not held by the appellant in her own right, her deed was void; and (2) her deed was without consideration, and was void. The deed in this case was intended to be the deed of John S. Green. When it was executed by Follett, his alleged attorney in fact, and joined in by his wife, John S. Green was dead. It was therefore void. His widow, supposing he was alive, at the request of' Follett, joined in the execution of the deed. It was not intended that she was signing the deed as the widow of John S. Green, but as his wife. Under paragraph 225 of the Revised Statutes “married women of the age of seventeen years or upward may convey or transfer lands, or any estate or interest therein, vested in or held by them in their own right, without being joined by the husband in such conveyance, as fully and perfectly as they might do if unmarried.” The lands in controversy are community property. They were under the control of the husband. He could convey without the necessity of the wife joining in the deed. The above section relates solely to the separate property of the *183wife. In the present ease she had made no conveyance of her separate property,—she had simply joined in a deed which she supposed her husband was executing. It was in no sense her deed. The law does not make a person do one thing when he intends to do another. Her name was not necessary to a deed from her husband to community property. It neither added anything to, nor took anything from, the validity of the deed. When this deed was executed Green was dead, and it was entirely void, and this real estate descended to the widow and children charged with the debts of the deceased. If there was a mortgage upon the real estate, it should have been presented to the estate and foreclosed in the manner designated by the statute. “No doctrine is firmer settled by the courts of the various community states than that all property purchased during coverture, whether the conveyance be taken in the name of the husband or that of the wife, or in their joint names, is to be deemed prima facie to belong to the community.” Ballinger on Community Property, sec. 162, and authorities cited. “The power given to a married woman by statute to contract in regard to her separate property does not extend to property held by her and her husband jointly.” Speier v. Opfer, 73 Mich. 35, 16 Am. St. Rep. 556, 40 N. W. 909. The real estate in question was community property, and held in the name of .the husband alone. During his life he had entire control over it, and could sell and convey it without his wife joining in the deed. Rev. Stats. 1887, par. 2102. If when appellant signed this deed she did so thinking she was releasing dower, under section 18 of chapter 397 of the act of Congress of March 3, 1887, it passed no title from her, for the reason that there is no dower in this territory, and said section of said act of Congress applied to the territory of Utah only, and not to the other territories of the United States. France v. Connor, 161 U. S. 65, 16 Sup. Ct. Rep. 497. The only object of Follett in getting the deed signed by appellant, he knowing that Green, her husband, was dead, must have been with the intent of fraudulently getting the legal title out of Green and his wife. The legal title was in Green. Death had revoked his power of attorney to Follett; hence, when Follett executed the deed as the attorney in fact of Green, no title passed. Mrs. Green was deceived into signing the deed, and if it is contended that the interest she inherited *184from her husband was conveyed, which seems to be the view taken by the court below, she received no consideration for the conveyance.

As stated, other errors are assigned, and the one which seems most strongly relied on by appellant is the alleged minority of appellant at the time she signed the deed. We do not think this question very material to the issues. Her marriage had emancipated her so far as her separate estate was concerned. But the property in question was not her separate estate. She signed the deed under mistake, misrepresentation, and fraud. No title passed from Green, and her signing the deed as the wife of Green did not convey any interest she owned in the land as the widow and an heir at law of her husband. The judgment is reversed, and the cause remanded,

Baker, C. J., and Bethune, J., concur.