30 Mich. 328 | Mich. | 1874
This case presents the question whether a deed made directly from husband to wife in the year 1854 was a valid conveyance of the legal title to the lands therein described. The plaintiffs in error maintain that the common-law disability which precluded such a conveyance without the inter
Tong v. Marvin only decides that the estate by the curtesy does not exist in this state since the statute of 1855 (Comp. L. 1871, § 4803), which declares that the property of the wife, real and personal, howsoever or whensoever acquired, shall be and remain hers, free of the control and not subject to the debts of the husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised and bequeathed by her in the same manner and with the like effect as if she were unmarried. Its existence was held to be inconsistent with the legislative intent which the statute manifested to exclude altogether the common-law rights of the husband in the wife’s property, ' and his control of her actions in respect to it.
The case did not call for any decision whether previous statutes or the constitution had not accomplished the same result, nor does the case at bar, in our opinion, require a consideration of that point. The act of 1855 was the first provision of law in this state which in terms gave to a married woman complete independent authority to dispose of her property. The constitution (Art. 16, § 5) provided that it might “be devised or bequeathed by her as if she were unmarried,” but stopped short of giving her authority to contract and convey by instruments to operate inter vivos. Possibly it might be contended that this power of testamentary disposition which was conferred by the constitution was inconsistent with the husband’s curtesy, but the question would not be the same as the one now before us.
In Burdeno v. Amperse it was decided that since the statute of 1855 a deed of lands made directly by husband to wife was valid as a legal conveyance. In that ease the conclusion was reached, after a careful review of the authori
The judgment must be reversed, with costs, and a new trial ordered.