This is а writ of entry. The plaintiff derives title under a deed from Mary. D. McIntire, wife of William H. McIntire, to Elbridge Randall,, dated November 3, 1879. The defendants are heirs of Mrs. McIntire and contеnd that this deed was inoperative because the husband did not join in it.
Under our statutes real estate directly or indirectly conveyed to a married woman by her husband, оr paid for by him, or given or devised to her by his relatives, "cannot be conveyed by her without the joinder of her husband.” R. S., c. 61, § 1.
The property in question was directly conveyеd to Mrs. McIntire by her husband, by deed of June 10, 1879. It could not be conveyed by her without his joinder.
The precise question has never been directly determined in this State, but the correct solution of it is only a corollary from the principles established by our decisions resрecting the true intent and meaning of this statute.
In Massachusetts, it was the express requirement of the statute of 1857 upon this subject, that the wife’s deed should have the " assent in writing of her husband.” Gen. Stat. Mass. 1860, c. 108, § 3. In several other states the husband’s "assent” or "written assent” or "consent” is made a prerequisite to the validity-of the deed. See Devlin on Dеeds, § § 100 to 107 ; Kelley Cont. Mar. Worn. c. 5, § 6 ; and c. 9, et. seq.
In Perkins v. Morse, 78 Maine, 17, convincing- reasons were given why our statute should receive a libex-al interpretation for the sake оf upholding hoxxest conveyances ; and the construction placed upon it iix Bray v. Clapp, 80 Maine, 277, renders it px’ecisely the same in effect as the Massachusetts statute of 1857. In the latter case it was declared by our court that, " no more than wx’ittexx assent wTas really intended by our own statute, the difference in phraseology being аccidental rather than essential axid it was accordingly held to be sufficient for the husband to sign the deed "in token of his assent to the conveyance.”
In the cаse at bar, the deed recites that: "In witness whereof” the husband signed the deed "in tokexi of his relinquishment of his right of dower.” But he had no right of dower in real estate legally coxxveyed by her in her life-time. By R. S., c. 103, § 14, " the husband of a deceased wife, whose estate is solvent,
There are certain elementary principles applicable to the construction of written contracts which are mattеrs of such common knowledge and universal acceptance as to render the citation of authorities a profitless task. There are pregnant legal maxims ■which are the deductions of reason and the conclusions of common sense approved by the wisdom of ages. But their practical apрlication must, in some instances, be qualified or restricted by technical rules which ascribe definite meanings to particular expressions-, in order to secure uniformity and to enable parties to understand the effect of the language employed in contracts made or accepted by them. All agree, howevеr, that it is the constant desire of the law to uphold a contract rather than destroy it, to effectuate the intention of the parties and not to defeat it. All breathe the beneficent spirit of this- rule, and the two great cardinal maxims- of the common law clearly express it.: "verba itasunt intelligendaut res magisvaleat quampereat; verba debent intentioni inservire.” This intention, however, must be gathered from the contract itself, construed with reference to the subject matter, the motivе and purpose of the parties in making the contract, and tire object to be accomplished.
But, with respect to conveyances of real estate, courts in modern times have shown more consideration for the substance
There is no px-esumptiоn against the validity of Mrs. McTntire’s conveyance. It is not to be presumed that her husband performed an idle and useless ceremony for the pux-pose of defrauding an innocent purchaser. But he affixed his signature and seal and made the acknowledgment before the magistrate fox-some purpose. It cannot be quеstioned that the deed was executed, delivered and recorded as and for a legal instrument. It cannot be doubted that the husband intended to do whatever was nеedful to render the deed effectual as a conveyance of the wife’s real estate. He inteixded to relinquish whatever interest he had in the propеx-ty ; and the only possible interest he had was the right to dissent froxxi the conveyance. He clearly had no desire to exercise that right, but a manifest purpose tо waive it and to express his assexxt to the deed.
But it is said, that the deed itself contained a plain unambiguous recital that the husband sigxxed it for the pux-pose of releasing his right of dower; and thereupon the defendants’ counsel invokes the familiar principle that in law there can never be an implication of a purpose iix opposition to that which the parties have clearly expressed for themselves; that the express mention of one purpose in the deed excludes the idea that he signed it for any other purpose. It has been seen, however, that the purpose expressed by the parties was impossible and absurd. The language used was an erroneous statement or "false description” of the purpose intended, and is utterly without force or effect. But, words legally devоid of sense aixd meaning, in the connection in which they are used, may be rejected as surplusage; and falsa demonstrado non noeet.
The reported cases in different jurisdictions disclose numerous instances where similar errors have beeix corrected by an appli
But Hills v. Bearse,
Judgment for plaintiff.