135 A. 809 | N.J. | 1927
The bill in this case was filed by Kate Hannan, the present respondent, to compel the specific performance of a contract for the sale of a certain tract of land in the town of Westfield, by the terms of which she agreed to convey to the appellant, Margaret E. Wilson, the said tract in consideration of $750, and the latter agreed to accept a conveyance thereof at the time specified in the articles of agreement and to pay the purchase-money therefor. When the time for performance arrived a deed was tendered by the respondent, pursuant to the provisions of the contract, but Wilson, the intending vendee, refused to accept it, or to pay the purchase-money, upon the ground that the respondent had no title to the property in question. The present bill was thereupon filed *529 by Hannan, and upon the hearing of the cause the court of chancery decreed the relief prayed for by the complainant, and the defendant has appealed from that decree.
The contention of the appellant that the title to the land in question is not vested in the respondent is based upon the following facts: In the chain of the respondent's title is a conveyance made by one Martha Harris to Joseph Moffett, dated July 6th, 1870. The grantor was a married woman, whose husband was then living. Her husband was not mentioned as a grantor in the body of the deed, and did not join in any of the covenants contained therein. He, however, joined in the execution thereof by signing and sealing it and attending before a commissioner of deeds with his wife and acknowledging before that officer that he signed, sealed and delivered the instrument as his voluntary act and deed, for the uses and purposes therein expressed. Based upon these facts, the argument in support of the appellant's contention is that the Harris conveyance is absolutely void, although, as she admits, the legal title to the land in question was in Mrs. Harris alone at the time of the making of the conveyance.
We consider the appellant's contention that, under the facts above recited, the Harris conveyance is void to be unsound. In the case of Porch v. Fries,
"That nothing in this act contained shall enable any married woman to execute any conveyance of her real estate without her husband joining therein, as heretofore."
That is, joining in the execution of the conveyance — not in the grant itself (for he has no present interest in the land which could be made the subject of a grant), nor in the covenants contained in the body of the deed. The execution of a conveyance consists in the signing, sealing and acknowledging thereof; and, in order to make the wife's conveyance valid, the husband must join with her in that execution by signing, sealing and acknowledging the instrument. This, as has been already pointed out, was done in the conveyance now under consideration, and our conclusion is that the deed as delivered transferred to the grantee named therein a valid, legal title to the property described in it.
The conclusion which we have reached is not in conflict with that expressed by us in the case of Jason v. Johnson,
But, if we had reached the conclusion that the conveyance by Mrs. Harris did not presently operate to transfer the legal title to the land, we should still consider that the decree under review was properly directed, and for the following reason. On March 11th, 1924, the legislature passed the following statute:
"Where in any deed of conveyance of real property heretofore made by husband and wife both the husband and wife have signed the said deed of conveyance, and where their signatures have been duly witnessed and acknowledged as required by law, but where in the recital or the body of the deed of conveyance the name of one of the parties has been omitted, the said deed of conveyance shall be good and valid; provided, however, that the said deed is good and valid in all other respects." P.L. 1924 p. 347.
It is suggested by counsel that this statutory provision is unconstitutional, so far as it is applicable to cases like that now under consideration, because it deprives a married woman of property which never has been legally conveyed by her. But this suggestion is based upon a misapprehension of the effect of the statute. A deed by a married woman, in the execution of which her husband joins, vests in the grantee an equitable estate in the land which is the subject of the conveyance. Wright v. Pell,
For the reasons indicated, we conclude that the decree under review should be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, MINTURN, KALISCH, KATZENBACH, CAMPBELL, LLOYD, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 11.
For reversal — None.