Townsley v. Chapin

94 Mass. 476 | Mass. | 1866

Foster, J.

The plaintiff in equity brings this bill to obtain a decree for the execution of a new deed from the defendant to him, under the following circumstances:

The defendant, while a married woman, executed to the plaintiff a quitclaim deed of an estate held by her as sole and separate property, in which her husband, who has since deceased, did not join, and to which he never gave any written assent. The consideration of the conveyance was an agreement by the plaintiff to support the defendant and her husband during their joint lives and the life of the survivor. The deed of a married woman without her husband’s joinder, at common law is absolutely void. The statute from which she derives her only power to convey her sole and separate property, Hen. Sts. c. 108, § 3, in express terms enacts that no conveyance of any real property, except a lease for a term not exceeding one year, and a release of dower subsequently to a conveyance by her husband 66 shall be valid without the assent of her husband in writing or his joining with her in the conveyance,”

It is not contended that the deed actually executed was otherwise than utterly void ; its admitted invalidity is the foundation of the supposed equity which the plaintiff now invokes the aid of the court to enforce. Nor is it claimed that while the husband lived there was any foundation for a suit in equity against him to compel his written assent, and thereby to perfect the void conveyance. But, by reason of his death, the plaintiff insists that he is entitled to require from the defendant a new conveyance, which, as a feme sole, she is now competent to execute. In our opinion, however, the written assent of the husband is as indispensable to the validity of an executory agreement, by a married woman, to convey her real estate, as to an executed conveyance thereof. The restrictive clause of the section requiring the husband’s written consent is as broad as that which confers the power to convey. It would be a preposterous construction to hold that a married woman might alone enter into a binding agreement to do that which she could not actually do without her husband’s concurrence. The power to make a contract to convey is not given expressly, but derived inferentially from that to convey. Baker v. Hathaway, 5 Allen, 103. Upon what principle can it be maintained that an instrument wholly void upon its execution is made valid and capable of enforcement in equity by the contingency of the husband’s death? The deed when executed was inoperative for want of power on the part of the grantor. The removal of the disability of coverture cannot possibly render effectual and binding a contract or conveyance made while that disability continued, and by reason thereof originally a mere nullity. Whether the section under consideration be considered as one conferring a power not previously possessed by married women, but on condition of the husband’s written consent, which is its form ; or as a protective enactment requiring such written consent for the benefit and security of the wife’s interests, which is its substance ; in either view, its effect and construction must be the same. Jewett v. Davis, 10 Allen, 68, cannot be distinguished from the present case. There relief was denied because the wife could make no valid contract. We deny it now because she has made none The principle is the same. A court of equity has no more jurisdiction than a court of law to recognize and give effect to instruments inoperative for want of compliance with a condition made by statute prerequisite to their validity.

The demurrer in the answer is sustained, and the

Bill dismissed, with costs.