Miller v. Hine

13 Ohio St. 565 | Ohio | 1862

By the Ooubt

The defendant, Laura J. Hine, during coverture, and without joining her husband, executed to the plaintiff a deed'for the land in controversy, received a part of the consideration, and put him in possession. He shows a very strong equity to be protected in his enjoyment of the property; but he calls for relief beyond the equity powers of this court. That a deed made by a married woman, not in conformity with the statute by joining with her husband in the conveyance, is a nullity, and that a contract for a conveyance is alike void, are propositions already settled by repeated decisions of this court.

Indeed, this is not controverted by the plaintiff’s counsel; but he insists that the failure of the husband to join in the deed was an “ omission” within the meaning of the proviso of the 28th section of the 2d article of the constitution, and may be cured by a judgment rendered in accordance with the provisions of the act of April 17, 1857.

This position has been distinctly answered in the case of Goshorn v. Purcell, 11 Ohio St. Rep. 646. It is there said * “ If the instrument or proceeding be such that, in the absence of any omission, defect or error, it would have been inoperative, then it can not be regarded as within the meaning of the proviso. For example, the written agreement of Lorenia Groshorn to convey her estate, she being a married woman, would have been inoperative and void; and, though in one sense an instrument, it could not be deemed such an instrument as was intended by the proviso.” * * * “ The proviso proceeds on the assumption that the instrument or proceeding, but for the omission, defect or error, would have conformed to the laws, and therefore have carried into effect the intention of the parties. It, therefore, does not extend to any instrument or proceeding not authorized by the laws of the state, as a valid and effectual expression of the intention of the parties. It does not authorize the general assembly to give power or capacity to parties not possessed when any instrument or proceeding was made or had. An attempt to do this would come within the prohibition against retroactive laws.”

In the case before us, we have no “ deed of husband- and wife ” to correct, but simply a void deed of the wife, which she had no capacity to make.

The injunction must be dissolved, and the petition dismissed.