| Pa. | Oct 4, 1880
delivered the opinion of the court,
The plaintiff seeks to recover the land in question under title derived from Lois M. Innis. By agreement filed the parties waived a trial by jury, and submitted the case to the decision of the court. The facts found and admitted show, inter alia, that Mrs. Innis, a married woman, held a title to, and was in the actual possession of, a tract of land called her “homestead.” While thus holding and in the possession thereof, she and her husband of the one part, and one Watkins of the other part, entered into an
Watkins did not complete nor even commence a well, Avithin four months after the date of his agreement. On the 27th March 1878, he began work on a rig : but it Avas suspended within a few days and nothing done until July. On the 17th July he began to drill, and on the 22d August completed the first Avell. The Avritten agreement of the 11th November 1877 Avas duly acknowledged by Mrs. Innis and husband. On the 28th August 1878, they sold and assigned the land to the defendant. The plaintiff seeks to recover on a title acquired from Watkins on the 22d of September following. As the latter did not perform the act necessary to continue the term, Avithin the time stipulated in the Avritten contract, it thereby, by its terms, became “null and void and of no effect.” The plaintiff claims such effect shall not be given to the failure of Watkins to fulfil his contract for tAvo reasons : one, that there was no sufficient re-entry by Mrs. Innis to make the agreement of forfeiture effective; the other, that a right to declare the forfeiture was waived by a subsequent agreement of the parties to the contract.
In considering what weight should be given to the first reason, due regard must be had to the condition of the land and the purpose of the written contract. The land was wholly unimproved. The. object was to compel the sinking of wells for the purpose of ascertaining whether it contained oil. The precise limits Avithin which the experiment should be made were not designated. Watkins was not allowed any indefinite time in which to complete a Avell. It Avas to be done within the time specified. If not then done, all rights under the contract were to be void. If the Avell was completed, and no oil Avas found, no payment was to be made. Although the instrument contained some words incident to a lease, yet its main purpose Avas more in the nature of a contract to search for oil. No certain profit Avas reserved or agreed to be paid. It was wholly contingent on the finding of oil.
The remaining objection to the forfeiture is the alleged waiver thereof. Conceding that the acts and declarations of Mrs. Innis were sufficient to establish a waiver in case she had been a feme sole, yet it is an unquestioned fact that during the whole time she was under coverture. The question then is,-were they sufficient to transfer the title of a married woman in real estate or estop her from asserting it ?
It is a settled rule of law that a married woman has no capacity to contract for the sale of her real estate, nor to convey it otherwise than in the precise statutory mode conferring the power: Kirkland v. Hepselgefser, 2 Grant 84" court="Pa." date_filed="1853-07-01" href="https://app.midpage.ai/document/worcester-v-clark-6315183?utm_source=webapp" opinion_id="6315183">2 Grant 84; Rumfelt v. Clemens, 10 Wright 455; Glidden v. Strupler, 2 P. F. Smith 400; Dunham v. Wright, 3 Id. 167 ; Graham v. Long, 15 Id. 383; Brown v. Bennett, 25 Id. 420.
The title which she had transferred according to the requirement of the statute on the 11th November 1877, had reverted to her. It became hers as absolutely and unconditionally as if she had not executed that agreement. Her title then could not be sold without an instrument in writing duly executed and acknowledged by herself and her husband. Without this the instrument as to her was void, and passed no title at law or in equity: Glidden v. Strupler, supra; Dunham v. Wright, supra. The fact that she may have received a part or the whole of the purchase-money, in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate when the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate: Rumfelt v. Clemens, supra; Glidden v. Strupler, supra; Thorndell v. Morrison, 1 Casey 326;
The doctrine of estoppel cannot be invoked to enforce the agreement of Mrs. Innis for the sale of her land, when her agreement was otherwise void. Legal incapacity cannot be removed even by fraudulent representations, so as to create an estoppel in the act to which the incapacity relates. Hence, it was held in Keen v. Coleman, 3 Wright 299, that a married woman who falsely and fraudlently represented that she was single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture in defence to a recovery on the bond.
In the present case Watkins knew Mrs. Innis to be a married woman. He knew she had no capacity to sell or convey land without a deed duly executed and acknowledged by herself and her husband. He was not deceived, and had no reason to complain of her subsequent refusal to relieve him from the consequences of his foolish conduct: Alexander v. Kerr, 2 Rawle 90; Crest v. Jack, 3 Watts 238" court="Pa." date_filed="1834-09-15" href="https://app.midpage.ai/document/crest-v-jack-6311337?utm_source=webapp" opinion_id="6311337">3 Watts 238; Carr v. Wallace, 7 Id. 394 ; McAninch v. Laughlin, 1 Harris 371; Hill a. Epley, 7 Casey 333.
In some cases a married woman may be estopped from repudiating her executed contract in a sale of personal property; but we are now considering the question of a divestiture of her title to real estate arising on an executory contract.
The acts of Mrs. Innis given in evidence, and the offer to prove other acts, which was rejected, are both insufficient to move a chancellor to decree specific performance.
The evidence of the acts of the defendant in error after he acquired title was properly rejected. It was clearly insufficient to estop him. Nor did the fact that he purchased subject “ to all outstanding leases in force,” defeat the title which he would otherwise have acquired. That clause was designed for the protection of Mrs. Innis, and not to infuse new life into a void contract nor into one that had lost its force. We do not deem it necessary to consider the assignments separately. We discover nothing in.any of them calling for correction.
Judgment affirmed.