McVey v. Green Bay & Minnesota Railway Co.

42 Wis. 532 | Wis. | 1877

Lron, J.

An' elaborate and most ingenious argument was made at the bar by the learned counsel for the defendant, in support of the proposition that the statute concerning the rights of married women does not permit a wife to acquire real estate by deed of bargain and sale, and hold the same as her separate property. The statute is as follows: “Any married female may receive by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits, in the same manner and with like effect as if she were unmarried; and the same shall not be subject to the disposal of her husband, nor he liable for his debts.” E. S., ch. 95, sec. 3 (Tay. Stats., 1195, § 3).

The argument turns upon the legal signification of the word “grant;” for it is a word which has acquired peculiar and appropriate meaning in the law, and must be construed and understood according to such meaning. E. S., ch. 5j sec. 1.

Lord Coke says, “ Grant, concessio, is properly of things incorporeal, which (as hath been said) cannot passe without deed,” Co. Litt., 9 a. And again: “ Grant, concessio, is in the common law a conveyance of a thing that lies in grant and not in livery, which cannot passe without deed; as ad vow-sons, services, rents, commons, reversions, and such like.” Id., 172 a.'

But the word “ grant ” has also a larger meaning in the law. It is said in Shepard’s Touchstone, that “ this word is taken largely where anything is granted or passed from one to another. And in this sense it doth comprehend feoffments, bargains and sales, gifts, leases, charges and the like; for he that doth give or sell, doth grant also.” p. 228 (29 Law Lib., 11). So also in Co. Litt., 301b, it is said that “dedi or con-cessi may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, etc., and it is in the election of the party to use which of these purposes he will.” Thus it appears, as was said by Judge Stoet in Durant v. Ritchie, 4 Mason, 69, that “the word is nomen generaUssvirmm, and applies to all sorts of conveyances.”

Moreover, since title to corporeal-hereditaments is no longer passed by livery of seizin, but only by deed, it may well be said that they no longer lie in livery, but in grant. Hence the word “ grant,” even in its more restricted signification, may properly be applied to a conveyance of land as well as of incorporeal hereditaments. We are not driven, therefore, to a broad construction of the word, to hold that, as used in the statute under consideration, it enables a married woman to take real estate by purchase, and hold the same as her separate property, under a deed of bargain and sale.

But were the correct construction of the word as used in the statute more doubtful, it would still be our duty to give it its largest signification. The statute was enacted to remove, in some measure, the harsh discriminations of the common law against married women, and in obedience to the spirit and demands of a higher civilization than obtained when the rules of the common law in that behalf were in process of formation. It is, therefore, a remedial statute, and should be liberally construed to effectuate the purposes of its enactment. That the legislature intended to confer upon married women the power to purchase real or personal property with their own means, and hold the same to their sole and separate use, we cannot doubt. It is incredible that the statute was intended to exclude from the methods by which a married woman might acquire separate estate, the power to acquire it by purchase. The statute confers upon the wife the absolute power to sell and convey her separate property, whether real or personal; but that would be but a barren privilege if she have not the correlative power to purchase with the proceeds other property which shall also be her separate estate.

It may further be observed, that the word “ grant ” is used in the constitution, and frequently in the statutes, as descriptive of a conveyance of corporeal hereditaments of land. Const., art. I, sec. 14; E. S., ch. 88, secs. 3, 44; ch. 84, secs. 3, 7; ch. 86, sec. 7; Laws of 1865, ch. 365, sec. 1.

Hence, in any view we can take of the question, we are impelled to the conclusion that the word “ grant,” ?is used in the statute, includes deeds of bargain and sale, and that a married woman may, under the statute, acquire title to land by purchase, and hold it to her separate use, if it be otherwise her separate estate.

We are also of the opinion that when a conveyance is made by a stranger to a married woman, there is no presumption that the consideration therefor was paid by her husband; but rather, that it was paid by her. In the absence of proof to the contrary, the presumption is that the grantee in a conveyance paid the consideration therefor; and no good reason is perceived why there should be a different presumption when the grantee happens to be a married woman.

The plaintiff having proved that she took title to the land claimed in this action by grant from some person other than her husband," and there being no evidence in the case to rebut tbe presumption that sbe, and not her husband, paid therefor, it necessarily follows that such land is her separate estate, and that she can maintain an action in her own name to recover it, “ in the same manner and with like effect as if she were unmarried.”

It is assigned as error, that the circuit judge refused to give all of the instructions asked on behalf of the defendant by one general refusal, instead of separately refusing to give each one of the proposed instructions.

We think such general refusal equivalent to a specific refusal of each instruction, and that the party praying the instructions may have the full benefit of specific exception, the same as though each instruction had been separately refused.

By the Gow't. —Judgment affirmed.