77 Vt. 73 | Vt. | 1904
The question is whether No. 49 of the Acts, of 1896 is constitutional. It provides that “the court of chancery, in its discretion, upon the petition of a married woman, may empower her to convey her real estate by separate deed” as effectually as if the deed were executed by herself and her husband.
In the present case the petition set forth the marriage of the petitioner to the petitionee, that the petitioner was then the owner in fee simple of a piece of land described, that
If the decree is valid what is its effect? We are still living under' the common law rule which gives the husband a freehold estate for the joint lives of himself and his wife in her lands which she held at the time of her marriage except such as she held to1 her sole and separate use. In this land, therefore, the petitionee has such a freehold interest. In that sense and to that extent it is his estate. He is entitled to the rents and profits thereof. Deitrich v. Hutchinson, 73 Vt. 134, 50 Atl. 810; Hanchett v. Moxly, 68 Vt. 210; 34 Atl. 949; Chapman v. Long, 66 Vt. 656, 30 Atl. 3.
Such estate is still recognized and protected by statute, for, the wife may not convey nor mortgage her real estate except by deed duly executed by herself and her husband. Vt. St. 2646. The effect of the decree, then, is to deprive the husband of his estate. This of course cannot be done without due process of law. U. S. Const. 14th Amend., Sec. 1. Does the act in question provide or contemplate due process of law ? It declares that the husband’s estate may, in effect, be taken from- him and bestowed upon the wife, upon her petition, by the court of chancery “in its discretion.” Legitimate judicial
Analogous cases are to be found. A statute attempting to give the judge in criminal trials authority to keep the jury together or permit them to disperse, in his discretion, has "been held void. King v. Tennessee, 3 L. R. A., 210. An ordinance forbidding the use, upon certain streets, of heavy vehicles without the special permission of a board, was held unreasonable and void as failing to prescribe conditions upon which the permission should be granted and leaving it to the arbitrary will of the officers. Cicero Lumber Co. v. Cicero, 176 Ill. 9, 26. Similar cases are: City of Plymouth v. Schulthesis, 135 Ind. 339; Mayor v. Radecke, 49 Mel., 217, 33
In our opinion, to take one’s property under a statute like the present is to deprive him thereof without due process of law, and accordingly we hold that acts of 1896, No. 49, is unconstitutional and void in that it undertakes h> clothe a court with power to deprive a property owner of his estate without making the exercise of the power to depend upon proof of any prescribed facts, but leaving it to the arbitrary and unregulated will of the magistrate.
Decree reversed with costs in this Court, and cause remanded with mandate that the bill be dismissed.