17 Mich. 465 | Mich. | 1869
The deed of October 9, 1865, from Ira Ring to his daughter, Della Burt, without the signature of complainant, then his wife, was, both by the constitution and the statutes, void, as against the complainant’s right to a homestead. See Const. Art. 16, § 2; Comp. L. Oh. 132, §§i, 2.
This is not denied so far as the question depends upon the deed alone. But defendant insists that the deed was made in consideration and pursuance of a verbal agreement between Ira Ring and complainant, then his wife, on the one side, and the defendants on the other, by which the defendants were to support and take care of said Ring and complainant, during their lives in case they should live with defendants on the place; that the defendants went into possession under said deed, and that complainant and her husband continued to live with, and were supported by defendants till the death of said Ira, June 26, 1866, and that they were ready and willing to continue to support complainant according to the agreement, but that she left them of her own accord, etc.
At common law, a married woman is incapable of entering into any binding contract affecting any right she may have in her husband’s property, and the common law disability still continues in this state, except as it has been removed by statute. The statutes, securing to her her separate property, have, as to such sole or separate property, removed the disability and given her all the powers of a femme sole.
But the right to a homestead in her husband’s lands is no more in the nature of such sole property, than the right to dower; and there is a striking similarity between them, as to the question here involved. The only mode in which she can convey or encumber (or in any manner affect by contract) either of these rights during coverture, is by joining in a deed or mortgage with her husband, according to the statutes. Her agreement therefore, if made as claimed, was simply void. The defendants being in possession, and the forty acres of land with the dwelling house and improvements being admitted to be worth more than $1,500, this bill is the proper remedy for having the homestead ascertained and set off to her. — Beecher v. Baddy, 7 Mich. 488.
The decree of the court below dismissing the bill must be reversed with costs of both courts, and a decree must be entered in this court giving to her the right to a homestead to be ascertained and set off according to the prayer of the bill, and declaring the deed of Ira Ring to Della Burt, void and of no qffect as against complainant’s rights to such homestead. And the case must be remitted to the court below for such further proceedings as may be necessary to carry this decree into effect.
