53 Ill. 134 | Ill. | 1870
delivered the opinion of the Court:
This was an action of ejectment, brought by James M.-Hoyt and Mary E. Hoyt, his wife, against John T. Swar, the appellee. Swar defended under a deed made by Hoyt and wife, on the twenty-first of June, 1865, at which time she was under eighteen years of age. It is admitted the land, at that time, belonged to her, in her own right.
It is insisted by counsel for appellee, in support of the judgment of the court below, that so far as the disability of coverture is concerned, the deed was properly executed and acknowledged, the husband having joined therein, and that so far as objection may be taken on the ground of infancy, the deed was ratified by verbal declarations of Mary E. Hoyt, after she became of age.
It is unnecessary to consider the question of ratification, as, under the former decisions of the court, we must hold the deed void from the disability of coverture. This question has been repeatedly before the court, and was again fully considered in Rogers v. Higgins, 48 Ill. 211. The settled doctrine is, that although there are cases in which equity will enforce, on equitable grounds, a charge upon the lands of a married woman, yet as, at common law, she could convey her lands only by a fine or recovery, for which our statute has substituted a conveyance, executed jointly with her husband, and acknowledged in a particular manner, it necessarily follows that a conveyance, not within the authority of the statute, is void. She can alien her lands by a conveyance, only on such terms and in such mode as the statute authorizes, as her power to convey by deed is wholly derived from the statute.
2Tow the statute authorizes a married woman to convey, only when she has attained the age of eighteen years. Her deed, made before she has attained that age, is as ineffectual to pass the title, as if the statute had not enabled her to convey at all. It is not the disability of infancy, merely, that affects the deed, but the fact that the statute, while recognizing the common law disability of coverture, removes it only in reference to deeds executed in a particular mode by married women who have attained a specified age. If the deed is executed before the prescribed age, it must be held equally beyond the reach of the statute as if executed after the proper age, but not in the prescribed form. As, in the cases of Rogers v. Higgins, ubi supra, and Lane v. Soulard, 15 Ill. 125, the deed of a married woman, executed without this State, was held inoperative, because the statute only authorized married women within this State to convey; so this deed must be held inoperative, because executed by a married woman under the age of eighteen years, the statute only authorizing married women who have attained that age, to convey. We can only say this conveyance was void at common law, and has not been authorized by the statute. The verdict and judgment should have been for the plaintiff.
Judgment reversed.