6 Wend. 9 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinions were delivered :
The general question pre* sented by this case is, whether a deed of a feme covert, not executed and acknowledged according to the provisions of
By the common law a feme covert could not by uniting with her husband in any deed or conveyance, bar herself or her heirs of any estate of which she was seised in her own right, or of her right of dower in the real estate of her husband. This disability is supposed to be founded in the principle that the separate legal existence of the wife is suspended during the marriage, .and is strengthened by the consideration that from the nature; of the connexion, there is danger that the influence of the husband may be improperly exerted, for the purpose of forcing- the wife to part with her rights in his favor. The law therefore considers any such deed or conveyance as the act of the husband only, although tile may have united in it, and restrained its operation to the husband’s interest in "the premises, and gives to it the same effect as though he alone had executed the conveyance.
The only mode in which a feme covert could at common law convey her real estate, was by uniting with her husband in levying a fine. This is a solemn proceeding of record, in the face of the court, and the judges are supposed to watch over and protect the rights of the wife, and to ascertain by a private examination that her participation in the act is voluntary and unconstrained. This is the principle upon which the efficacy of a fine is put by most of the authorities. 3 Cruise's Dig. 153, tit. 35, ch. 10. 2 Inst. 515. 1 Vent. 121, a. But whatever may be the foundation of the doctrine, it is now fully established.
Our statute declares that no estate of a feme covert residing in this state shall pass by her deed, without a previous acknowledgment made by her before a proper officer apart from her husband, that she executed such deed freely without fear or complusion of her husband. 1 R. L. 369. This provision, it will be observed, is an enlargement and not a restraint of the common law powers of a feme covert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowl
It was conceded that such must be the consequence at law; but it was contended that a court of equity would consider it as an agreement to convey, and if it was shown to have been voluntarily made for a valuable consideration) would compel the wife or her heirs specifically to perform it. This doctrine appears to me to be unsound in print/:-..' and - -a¿= supported by any color of authority. A feme e&czrt, by the principles of the common law, is not only incapable of conveying her real estate by deed, but she can-not, as a general rule make a valid contract of any- desrñpüon in relation either to real- or personal property. This disability results ihe natur: of Use •- 'Wiexion. In contemplation of law, the wuo L T-Vüv íOK/klíered as having a separate legal existence. She and he: msbaurA constitute but one person. She cannot bind either her husband or ihereelf by any contract. • She may execute a naked power, and as tie_ her separate estate, that is, such estate, either real or-personal, as is settled on her for her separate use, without any control over it on the part of her husband, a court of chancery for certain purposes will consider her a feme sole, and her contracts in relation to it may be binding ; 5 Day’s R. 496 ; 2 Kent’s Comm. 137 to 141; 1 Johns. C. R. 450; 3 id. 77; 17 Johns. R. 548; but her own lands, or her right of dower in the lands of her husband are not her separate estate, within the meaning of this rule. It certainly will not be contended that the conveyance in this case can have any greater effect than an express covenant on the part of the husband and wife to convey ; and I apprehend that an examination of the cases will show that such a covenant made during coverture would be absolutely void against the wife and her heirs, both at law and in equity. The greatest extent to which the English courts have ever gone, is to hold that an action would lie against a wife after the death of her husband, upon a covenant of warranty contained in a fine, execu
The doctfiiae that a wife is bound by her covenant of warranty, entered iiiV.o during coverture, is considered by Chancellor Kent, 2 Kent's Comm. 140, as at war with the established principle of ¿be common law ; that she is incapable of binding herself by ap’y contract; and a contrary doctrine has been expressly held, ¡.both in this state and in Massachusetts. Fowler v. Shearer, 7 Mass. R. 21. Colcord ana another v. Swan and wife, 7 Mass.. R. 291. In these cases it was observed, that although the deed of a married woman is ipso facto void by tjafe common law of England, yet by the immemorial usage of Massachusetts it would pass her estate, and she would be estopped by her covenants, though no action would lie against her for a breach of them. But the supreme court of this state, in Jackson, ex dem. Clowes, v. Vanderheyden, 17 Johns. R. 167, went still farther, and held that a feme eovert not only was not liable to an action on the covenants contained in a deed executed and acknowledged according to the statute, by her and her husband, but that she was not estopped by her covenant from setting up any outstanding title to the premises, or any other defence. Ch. J. Spencer, in delivering the opinion of the court, observed, that it was a settled principle of the common law, that coverture disqualifies a feme covert from entering into a contract or covenant personally binding upon her. She may at common law pass her real property by a fine duly levied ; and under our own statute, she may also in conjunction with her husband, on due examination before a competent officer, convey her real estate : but such deed cannot operate as an estoppel to her subsequently acquired interest in the same land.
The case of Baker v. Childs, 2 Vern. 61, is the only one which I have been able to find which contains the slightest intimation that a feme will be decreed specifically to execute an agreement made by her during coverture. The whole report of that case is this : “ Where a feme covert, by agreement made with her husband, is to surrender or levy a fine, though the husband die before it be done, the court will by decree compel the woman to perform the agreement.” No facts or circumstances are stated. Whether it was an ante-nuptial agreement between the husband and wife, or an agreement made by them with some third person, it is difficult to discover. It is altogether too loose and bald a case to be entitled to any consideration ; and it is said of that case, in 1 Eq. Cas. Abr. 62, pl. 2, that upon looking into the register’s minutes, it appeared that the court made no decree in it; but it was, by consent, referred to Mr. Serjt. Raw
The precise question, however, involved in this case has arisen in a sister state, and been very ably discussed both by the counsel and the court. . I allude to the case of Butler and Atwater v. Buckingham, 2 Conn. R. 492. It was there held that an agreement by a feme covert, with the assent of her husband, for the sale of her real estate, was absolutely void at law, and could not be enforced against her in a court of equity. The defendant in that case, Mrs. Buckingham, as the widow of her former husband Joseph Bryan, had a right of dower in a particular lot of land of which he died seiktt She subsequently married Gideon Buckingham, nr/d she arrJ her husband, in January, 1793, agreed to sell a!¿ h merest in the premises to the plaintiffs Butler and fit., „,s and -joined in a penal bond to them ; the condition of which was, that if she should quit-claim all her right of cl. wer iu the prem= to the obligees, then the bond should bo void. The petition (which was in the iiiuiifC Ú a bill in ■ '■••• wry) stated that the petitioners immediately entered in in k* possession of said land, and from that time to the date of me peuvitm, a period of more than 20 years, had had peaceable and uninterrupted possession of the same; that they had made valuable improvements thereon, with the knowledge of the defendant and her husband, in full confidence that they would perform their agreement; that Gideon Buckingham, the husband of the defendant, died in 1810 ; and that she, upon regular and repeated applications, had refused to quit-claim, her right of dower, and had recently commenced an action at law to recover the same from the plaintiffs. The petition prayed for a perpetual injunction, or that the defendant should be decreed to convey her right of dower in the premises. Upon a demurrer to this petition, it was held by the nine judges sitting as a court of errors, that the petitioners were entitled to no relief. It was observed by the court that the whole system of the common law was opposed to the doctrine on which the petition was founded ; that it was a fundamental principle of the common law that the contract
A feme covert, in relation to her separate property, that is, property-settled to her separate use by deed or will, with a power of appointment, and rendered subject to her exclusive control, and also with respect to property which she holds as trustee without any beneficial interest in her own right, is considered as a. feme sole, and her contracts in relation to those subjects may be valid, and a court of equity may interfere to enforce them. As to all other. rtVaucrs, they are absolutely void, and it is no less a moral than a legal absurdity, to say that a court of equity will enforce a void contract; it is a mere nullity; there is nothing to be carried into execution. The deed of a feme covert, not acknowledged according to the statute, forms no consideration for a promise to pay the purchase money; a note given under such circumstances is a nudum pactum and void as between the parties. This was expressly adjudged by the supreme court of Massachusetts, in Fowler v. Shearer, 7 Mass. R. 14, and must be so upon every principle applicable to contracts. If an absolute sale consummated by a deed is void, unless such deed is acknowledged in the mode prescribed by the statute, it is impossible that a contract to sell and convey at some future time should be valid.
The language of the master of the rolls, Sir Thomas Plumer, in Martin v. Mitchell, 2 Jac. & Walk. 424, upon the general principle applicable to the contracts of married women, is very strong and explicit. He says, “ The acts of a married woman with respect to her estate are perfectly void.
The bill is not framed with a view to the refunding of the purchase money paid by the appellant for the premises in question. It seeks distinctly a specific execution of the agreement, or a perpetual injunction of any suit at law. Whether the representatives of Abner Dwelly could be compelled to refund, it is not now necessary to consider.
I am in favor of affirming the decree, with costs.
It is supposed by the appellant that the payment of the consideration money and signing the deed by the husband and wife, amount* to such an agreement as will be enforced in chancery by a decree for a specific performance.
I am clearly of opinion that the decision of the chancellor is right. At common law the wife could part with her interest in lands only by joining with her husband in a fine, and it then required a private examination before a judge of the court where the fine was levied. Under our statute, she may join with her husband in a conveyance, and thus pass her estate, provided she is examined privately and acknowledges tike t she does it voluntarily and without fear or compulsion of her husba.nd.
The object of the statute is to protect the fights of the wife, and generally speaking, any agreement or conveyance which she makes in regard to land, except as prescribed by the statute, is not bind ing upon her or her heirs, because the law adjudges it made a t the instance and under the influence and coercion of the husband. ... - - -
It appearsjpj, me that to sustain this appeal will have the effect of,-unsettling the whole law in relation to the rights of man vied women in real estate, and will amount to a virtual tiepeal of the statute. The wife is deemed to be wholly under the influence of her husband, and it is as necessary for her protection that she should be privately examined before an officer, to ascertain her volition in regard to an agreement, as it is in regard to a conveyance.
I very much doubt whether any agreement could be made with a married woman, in relation to lands, that could be enforced in equity against her. If any agreement could be enforced, it would probably be one where the consideration money was secured for her separate use, and where it should appear not to have been contrary to her interest.
It is not pretended that the present conveyance is of any effect, except as evidence of an agreement that a court of equity will enforce; and in this respect it is nugatory, be=
If chancery will enforce such an agreement, I can imagine no barrier that can be erected against the encroachment of the husband, or for the protection of the wife. It fritters away the statute and makes it a dead letter.
Suppose a worthless husband, who keeps his wife in constant fear, should wish to dispose of her estate contrary to her wishes ; he finds a purchaser, and has witnesses ready, and in the presence of the wife agrees with the purchaser to sell him the estate of the wife, and that she shall join in the conveyance; he receives part of the purchase money, or the whole, in the presence of the wife, and puts the purchaser in possession of the property; the wife, from fear of her husband, says nothing, (and from silence the law in ordinary cases adjudges acquiescence;) the husband has a right To control the possession, and such an agreement uncquestionably would be enforced against him; and why met against the wife, if she is capable of making a contract 1 The whole policy of the law is against this doctrine.
Chancellor Kent says, “Though a wi fe may convey her estate by deed, she will not be bound by a .covenant or agree:_pqentfi /jjjt; or convey her estate»." 2 Kent's Comm. 141. The a«yv.-iw:t!¿ by ájeme covert,1 .'XÍ! odhe assent of her husband, for a sale of her real estate, is absoA\AA';T void at law, and the courts of equity never enforce such a contract against her. 5 Day, 492.
It was decided in England, in Watton v. Hele, 2 Saund. 178, that where the wife joined with her husband in a fine to grant her land with covenant of warranty, that after the husband’s death an action of covenant would lie against the wife, on the eviction of the grantee, and this case was relied upon by the appellant in this cause. The authority of Wotton v. Hele has been called in question by courts in this country as inapplicable to our laws, and has been overturned in Massachusetts. 7 Mass. Rep. 21, 291. And in our supreme court, in Jackson v. Vanderheyden, 17 Johns. R. 167, it is decided that the wife could not bind herself personally by a covenant in her deed.
He that wishes to divest a married woman of her land must take care that the statute is complied with before he parts with his money.
The chancellor’s decree must be affirmed.
Whereupon the order of the chancellor dissolving the injunction was unanimously affirmed, with costs to be paid by the appellant. Leave however was given to the appellant to amend his bill.