86 Va. 946 | Va. | 1890
delivered the opinion of the court.
On the 31st day of July, 1875, Jane Louthan, a married woman, united with her husband, John Louthan, in the sale, and conveyance by deed of that date, of a tract of land in Tazewell county, Virginia, to William T. Wynn, for the agreed price of $400 00, the receipt of which was acknowledged by the deed; aud the purchaser, W. T. Wynn, took possession
To this bill the heirs-at-law, defendants, demurred; and the circuit court sustained the demurrer, and dismissed the bill. We are of opinion, that the circuit, court did not err in sustaining the demurrer to the bill; and that the bill was properly dismissed. It is a conceded and adjudicated fact in this record, that the deed of July 31st 1875, made by John Louthan and Jane Louthan, his wife, exhibited by the bill, is void and was void, as to Jane Louthan, because of defective execution and acknowledgment. The mode prescribed by statute, whereby married women may part with real estate, or any interest therein, is specific, imperative, and indispensible, allowing of no deviation; and no defective execution of a deed of a feme covert can be set up, cured or affected, by a court of equity. Hairston v. Randolph, 12 Leigh, 445; Bolling v. Teel, 76 Va., 487; see also, 75 Va., 594; 14 Gratt., 501; 4 Gratt., 414; 83 Va., 589. In the case of Rorer’s Heirs v. Roanoke National Bank, 83 Va., (8 Hansbrough), p. 610, Judge Richardson,
All the authorities cited, and others which' might be cited,, show the right of the wife, when coverture is ended, or of the heirs after her death, to recover land attempted to be conveyed by the defective deed of the wife.
But the appellant contends, that, although the deed of Jane Louthan of July 31st, 1875, to him, was and is void; yet that the heirs-at-law of Jane Louthan are chargeable with the money which he paid to Jane Louthan; and the alternative prayer of the bill is, that Jane Louthau’s grand-children and heirs-at-law shall be decreed to pay to him the said money with interest. The said deed was made July 31st, 1875; at that time the contracts of a married woman were void; and could not be enforced under the common law, or the statute; and she had no power, on the 31st of July, 1875, to charge her land (which had none of the qualities or attributes of separate estate), or to contract as a feme sole. The act relating to married women and their contracts, was passed April 4th, 1877, (Acts 1876-77). The covenants of a maried woman were not obligatory on her. Chap. 117, sec. 7, Code of 1873, p. 907.
If -Jane Louthan did in fact (as alleged in the bill,) receive j>ersonally the $400 00 paid by appellant,. W. T. Wynn, there would be, had she been ever sid juris, only an implied promise to refund; an implication which did not, and could not obtain in this case, against a married woman at that time. The whole transaction—contract and purchase money, so far as it affected Jane Louthan or the land—is from the beginning null and void.
The decree appealed from is right, and our judgment is to affirm the same.
Decree aeeirmed.