157 Me. 263 | Me. | 1961
On Appeal. This is an action of trover brought under the old rules of court by writ dated November 19, 1959. The case was heard by the court below without a jury upon an agreed statement of facts.
That portion of R. S., 1954, Chap. 166, Sec. 35 pertinent to the issue in this case reads as follows:
“A married person, widow or widower of any age may own in his or her own right real and personal estate acquired by descent, gift or purchase; and may manage, sell, mortgage, convey and devise the same by will without the joinder or assent of husband or wife; but such conveyance without the joinder or assent of the husband or wife shall not bar his or her right and interest by descent in the estate so conveyed.”
The plaintiff contends that the foregoing statutory provision does not remove the right of disaffirmance of a contract on the part of a married male under the age of twenty-one years, and he cites the recent case of Spaulding v. New England Furniture Co., 154 Me. 330, 147 A. (2nd) 916.
A review of the history of the statute in question may be helpful. At common law, upon marriage, a husband and wife, in legal contemplation, became one person, and that person was the husband. A married woman was incapable of binding herself by contract or of acquiring or disposing of property. The first statutory modification of the common law occurred in 1844. (P. L., Chap. 117.) Under this legislation a married woman was given the right to hold property in her own name. By P. L., 1852, Chap. 227, a married woman seized and possessed of property, real or personal, was given the power to lease, sell, convey, and dispose of the same, and to execute all papers necessary therefor in her own name, as if she were unmarried. At the time this act was in force, the legislature passed an act (P. L., 1852, Chap. 291, Sec. 3) which provided that “Any married woman under the age of twenty-one years shall have, and may exercise, all the rights, privileges and powers
“A married woman, of any age, may own in her own right, real and personal estate acquired by descent, gift, or purchase; and may manage, sell, convey, and devise the same by will, as if sole, and without the joinder or assent of her husband;”
This provision, in the same language, with the exception of the omission of the words “as if sole” is found in all subsequent revisions of our statutes to and including R. S., 1944, Chap. 153, Sec. 35.
The provisions of R. S., 1944, Chap. 153, Sec. 35 were amended by P. L., 1951, Chap. 375, Sec. 2 by the addition of language by which the section applied to a “married person, widow, or widower.” Sec. 35 was also amended by P. L., 1953, Chap. 43, Sec. 4, by adding the word “mortgage” to the other provisions of the section. With these two amendments, the pertinent provisions of the legislation are as they appear in that portion of R. S., 1954, Chap. 166, Sec. 35, ábove set forth.
In 1914 this court decided the case of Fields v. Mitchell, reported in 112 Me. 368, 92 A. 292. In that case the plaintiff, a married female under the age of twenty-one years, conveyed certain premises to the defendant’s predecessor in title. After becoming twenty-one years of age, the plaintiff brought a real action to recover the real estate. The issue in the case was whether the plaintiff could disaffirm the sale and recover the real estate after arriving at the age of twenty-one years. The decision called for the construction
“Since that date [1852] in this State all married women have possessed the same rights regarding the sale of their property whether under twenty-one years of age or over. In the revision of 1857, these statutes were condensed, but the meaning was preserved in these words: ‘A married woman, of any age, may own in her own right, real and personal estate acquired by descent, gift or purchase’ &c., R.S., 1857, Chap. 61, Sec. 1. And the same language unmodified and unamended has been retained in the subsequent revisions. R.S., 1871, Chap. 61, Sec. 1; R.S. 1883, Chap. 61, Sec. 1; R.S., 1903, Chap. 63, Sec. 1. A study therefore of the original Act from which the present statute is derived leads to the inevitable conclusion that the sale of real estate by a married infant is not voidable on the ground of infancy.”
R. S., 1954, Chap. 166, Sec. 35, was in derogation of the common law and must be strictly construed. The legislation did not purport to remove all disabilities of a married male under twenty-one years of age. We are concerned solely with the question of whether or not the plaintiff, in view of this legislation, can, on the ground of infancy, legally disaffirm the sale of personal property made by him to the defendant.
In the Fields case the issue was whether a married female under the age of twenty-one years of age could disaffirm the sale of real estate. In this case the issue is whether a married male under the age of twenty-one years of age may dis-affirm the sale of personal property. The principle involved in both cases is the same. We hold that under the statute the plaintiff had no right to render void the sale of the Ford automobile by disaffirmance after becoming of age, solely on the ground of infancy.
The ruling of the court below that the plaintiff could not avoid the sale to the defendant was correct.
The entry will be
Appeal denied.