Hammond v. Thompson

56 Ala. 589 | Ala. | 1876

STONE, J.

“ The property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them, jointly, by instrument of writing attested by two -witnesses.” Bev. Code, § 2373. “ Conveyances of a wife’s property, made

in writing by husband and wife jointly, and acknowledged before some officer authorized to take acknowledgments of conveyances, are as valid and adequate to pass the wife’s estate as if the same were attested by two witnesses.” — Bev. Code, § 1552; O’Neal v. Robinson, 45 Ala. 526.

“ The provision [of the statute above] as to a sale of the property is obviously restrictive, and was doubtless intended to prohibit any sale of the wife’s property, except such as might be made by the husband and wife.” — Smyth v. Oliver, 31 Ala. 39.

“ The separate estate of a married woman, held under the provisions of the Code, can only be conveyed by her and her husband jointly, by instrument of writing.” — Warfield v. Ravisies, 38 Ala. 518. See, also, Northington v. Faber, 52 Ala. 45; Coleman v. Smith, at the present term.

In the present case, the wife conveyed alone, by instrument having the form of a deed, expressing the consideration, and reciting that she was a married woman. On the same paper, on the same day, and probably at the same time, the husband executed a paper under seal, by which he said he did “consent to and approve the sale and conveyance to the within named W. W. Thompson of her undivided right and interest in the estate . . for the consideration, and upon the terms expressed in the within and foregoing instrument of transfer and conveyance.” The instrument signed and sealed by Mrs. O’Neal, employs the words bargain, sell, and convey.

It is manifest that the interest of Mrs. O’Neal was not conveyed by her and her husband to Thompson, “jointly, by instrument of writing.” In fact, tbe husband did not convey at all. The writing could not be declared on as the joint conveyance of husband and wife; could not, in fact, be declared on, in any form, as the conveyance of the husband. He did not assume to convey. Acting, and consenting that another may act, are, in law, very different transactions. O’Neal only consented that Mrs. O’Neal should convey.

In Agricultural Bank of Miss. v. Rice, Ch. J. Taney said: “In order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee : and merely signing and sealing and acknowledging an instrument, in which another person is grantor, is not sufficient.” — 4 How. U. S. 225, 241. See, also, Harrison v. Simmons, at the present term. "We do not think the conveyance shown in the present record was sufficient to transfer the interest of Mrs. O’Neal.

It may be thought that our ruling above savors of technical strictness. It should be borne in mind, however, that it is a statutory power, under which the present conveyance is sought to be upheld. When regulations are prescribed by statute, not even courts of equity can dispense with their observance, or remedy their omission, where they constitute the apparent policy and object of the statute. — 1 Story’s Eq. Ju. § 96.

We consider it unnecessary to notice any other questions presented..

The decree of the Probate Court is reversed, and the cause remanded, to be proceeded in according to the principles of this opinion.