Sumner v. Conant
10 Vt. 9
Vt.
1836
Check Treatment
Royce, J.

The charter grants the township of Barnard, to be divided into sixty-nine equal shares. And to the list of sixty-three individual grantees, named on the back of the charter, are added certain grants or reservations for public and pious uses, amounting to four shares, and to “ his Excellency, Penning Wentworth, Esq. a tract, as marked in the-plan £ B. W.,’ to contain five hundred acres, which is to be accounted two of the within shares.” This is the language in which the governor’s rights, under the provincial grants of New *18Hampshire, are generally described. And it is certain that in every such case, which has come to the notice of this ' court, the governor’s right has been regarded as a grant in severalty, subject to no division with the other proprietors. But, in one respect, the present case is different from all those alluded to, since the letters £ B. W.’ were not placed in the plan, though a plan accompanied the charter. It is insisted that this omission has rendered the grant to Benning Went-worth inoperative and void. We think, however, that the grant was not thereby defeated, though, for want of the usual designation on the plan, it did not vest in severalty. Every grant should be allowed to taire effect, if by any reasonable construction it may; and if not in the precise manner indicated, then in that nearest to it, or least inconvenient to the parties interested. Here the governor’s right was to be accounted two of the sixty-nine shares, and to hold that he acquired no interest under the charter, involves the conclusion, either that a portion of the lands within the charter limits remained in the crown ungranted, or that the shares became reduced from sixty-nine to sixty-seven •, — conclusions manifestly inconsistent with the language and intention of that instrument. It is not an unreasonable supposition that the plan, being no essential part of the grant itself, was made subsequently to the execution of the charter, and is therein referred to as a document, which was to locate the governor’s right. And if so, it is not to be admitted that a failure to supply this additional matter of description, or a neglect to do the act, which was expected to sever this portion from the other lands, should operate to annul the previous grant. To this point the case of the University of Vermont v. Reynolds, 3 Vt. Rep. 542, may be usefully cited. The charter of Alburgh granted, or reserved, a share for the University, to be so located and set apart, as least to incommode the general settlement of the town. The want of any such location or severance was urged as a prominent ground of defence. But this court held, that if for want of a separate location the right could not be enjoyed in severalty, it should enure as a grant in common with the individual proprietors. For the sake of giving effect to the grant, the court did not hesitate to encounter difficulties, far surpassing any to be imagi*19ned from a temporary tenancy in common, between his excellency and those, whom the counsel denominates his plebeian associates. We are satisfied that, under the circumstances, the right in question was properly carried into the general division of the town.

It is objected that lands to the amount of six hundred acres, instead of five, were severed by the proprietors to this right. As this does not appear to be above the shares of two ordinary rights in that town, the objection is answered by the view already taken of the case. The grant took effect simply as two shares, and not as a located tract of five hundred acres. And whether the proprietors were bound to' treat these as equal to two common shares, would depend on considerations, with which the defendant, an apparent stranger to all proprietary title, has no legitimate concern.

The ease shows that all the right of Benning Wentworth came by devise to Martha, the wife of John Wentworth, about 1803; and the only remaining question is, whether the plaintiff has acquired her title. This depends on the validity of the power of attorney, executed by her and her husband to Shepherd, in October, A. D. 1808. The power was undoubtedly good for all the purposes mentioned in it, except that of conveying lands; because the husband alone was competent to authorise all necessary acts to accomplish those purposes. And whether it was also good for the purpose of passing her title to the lands is a question of great importance, and one which has never been decided in this court to our knowledge.

At common law, a woman under coverture could make no conveyance of her lands, except through the agency of a court of record. She could neither convey directly by deed, nor authorise any one to convey for her. All her present right to convey by deed is therefore conferred by statute. The requisites of a common deed of conveyance are prescribed by the fifth section of the act regulating conveyances. It must be “ signed and sealed by the party having good and lawful authority thereunto,” and u signed by two or more witnesses &c.”' The ninth section contemplates that such deed maybe executed by attorney, and discloses some of the requisites of the power of attorney. The words are, “ such power having *20been signed, sealed, and acknowleged before a justice of the peace, by the party having lawful right to make the same. ” ' Thus far the statute is applicable to all persons having a legal right to act under it, whether by conveying their lands directly, or empowering agents to convey. No personal disabilities are as yet mentioned, or provided for. But the 12th section relates exclusively to the case of a feme covert attempting to convey her lands by deed. The right is there given or recognised, to convey “ by deed of herself and baron” ; and as a protection against any improper influence of the husband, her separate examination and acknowledgment are made necessary, and required to be certified upon the deed. The question now presents itself, whether this deed may not be executed through the instrumentality of a third person ? Though it is generally true, that what a person has a right to do in his own affairs, he may authorise another to do for him; yet, this is by no means universally true. An infant may execute and deliver a deed of his land, which will be effectual in law, unless he afterwards elects to avoid it; whilst his authority to another,to deed for him,is merely void. Reeve’s D.R. 251. The disability of a feme covert is not founded, like that of an infant,- upon a supposed want of discretion, but results from a legal subjection to her husband, which is presumed to deprive her of that freedom of will, which is essential to the validity of contracts. And that this disability emphatically applies to the delegation of powers is shown by the familiar case of an attorney to defend a suit, whom, it is every where said, the wife cannot appoint. It is contended, however, that in this instance, the statute has removed her disability. This proposition is defended on two grounds: — 1st. That the power to convey, and the deed executed by the agent, being parts of one entire conveyance, constitute the deed, which the statute has authorised: — 2d. That the right to convey, being expressly given, the power to create an intermediate agency should be upheld, as one of the necessary, or usual, means for exercising that, right. The first ground here taken, would lead to a very free and loose construction of the statute. The power of attorney is strictly no part of the conveyance, but a mere qualification of the person, who is to make it. Much dess is it the deed of conveyance itself, of which alone the *21statute speaks. It is known that the power and deed are distinct instruments, not merely executed at different times,but acknowledged by different persons; the power by the party making it, and the deed by the agent who executes it. Such were the facts in this case. And how can it be maintained, except upon a subtle and strained construction of the act, that Martha Wentworth has ever executed and acknowledged the deed, which professes to convey her estate ? In our opinion, the terms of the statute do not justify a conclusion so wide of their apparent import.

The remaining ground is open to most of the observations already made. I shall suggest but a simple additional objection, which consists in the inability of the wife to revoke a power of this description, without the concurrence of her husband. Whether this consideration alone Would be fatal to the power in every case, it is certainly of great and decisive forcé in the present. The power in question extended to all the rights granted, or reserved, to Gov. Wentworth throughout this state; the property to be affected was consequently large-, and the business of the agency was doubtless expected to continue through a course of years. To sustain the power, under such circumstances, would be to place the valuable estate of a wife beyond her own control, and not unfrequently subject it to the waste of a faithless agent, or an unwise and improvident husband.

Judgment of County Court reversed, and new trial granted-.