111 Mass. 308 | Mass. | 1873
The demandant, who is a married woman, was the owner of the land in question, to her sole and separate use, on February 18, 1870. On that day she executed a warranty deed, in which her husband joined, to Lawrence McLaughlin, from whom the tenant derives his title.
The first question in the case is whether it was competent for the demandant to show that her husband was insane at the time he executed the deed, and whether his insanity would make the deed void.
At common law a deed of land by a married woman in which her husband does not join, is absolutely void. The disability of coverture makes her deed inoperative to convey any estate whatever. Lowell v. Daniels, 2 Gray, 161. The statute from which alone she derives her power to convey her separate property, provides that no conveyance by her of any real property, except a lease for a term not exceeding one year, “ shall be valid, without the assent of her husband in writing, or his joining with her in the conveyance, or the consent of one of the judges of the Supreme Judicial Court, Superior Court or the Probate Court, granted on her petition in any county, on account of the sickness, insanity or absence from the state, of her husband, or other good cause.” Gen. Sts. e. 108, § 3. Since the enactment of this statute it has always been held that the deed of a married woman executed by her alone, and without the assent of her husband or of one of the judges of the three courts named, is wholly inoperative and void. Townsley v. Chapin, 12 Allen, 476. Jewett v. Davis, 10 Allen, 68. Hills v. Bearse, 9 Allen, 403. Melley v. Casey, 99 Mass. 241. In the case at bar the husband joined in the deed of conveyance, but the jury have found that at the time he did so he was insane,
But we are of opinion that the presiding judge erroneously ruled that the order of the judge of probate committing Leggate to the insane hospital was admissible and prima facie, evidence of his insanity. The question before the judge of probate was different from the issue in this case. The proceedings before him were under the St. of 1862, e. 223, § 3, which authorizes judges of probate to commit to either of the state lunatic hospitals “ any insane person who, in their opinion, is a proper subject for its treatment or custody.” The issue before the jury was whether Leggate was of sufficient mental capacity to give an intelligent assent to his wife’s conveyance of real estate. A man may be a proper subject for the treatment and custody of a lunatic hospital, and yet have sufficient mental capacity to make a will, to enter into contracts, to transact business and to be a witness. Kendall
The demandant contends that as all the evidence upon which the judge of probate based his order was subsequently introduced in this case, and as the other evidence tended strongly to show the insanity of Leggate, the tenant was not prejudiced by the admission of the record. But it is impossible for us to say what effect the evidence and the instructions thereon had upon the minds of the jury. They may have had a controlling influence in leading theix minds to the verdict which they rendered. An
Exceptions sustained.