Although the powers of married women, to alienate their own real estates, are regulated by our statutes, yet it may be useful to inquire, for the purpose of elucidation *Page 20 into the extent of such powers, and the mode of exercising them, by the common law of England.
Prior to the 31st day of December, 1833, when Parliament enacted the law for the abolition of fines and recoveries, 3 and 4 W. 4, ch. 74, married women had no power to alienate their own estates, or those of their husbands, except by fine and recovery. This was a circuitous, expensive and somewhat absurd method of arriving at a desirable result, which our more simple and sensible modes of alienation, accomplish by a direct process. The wife was held incompetent to dispose of her real estate by deed; nevertheless the husband and wife might jointly levy a fine of her lands, which would bar her and her heirs. The husband also might levy a fine of her lands, and bar her; for we are told the fine was of so high a bar, and of so great force, and of a nature so powerful in itself, that it precluded, not only those who were parties and privies to the fine, and their heirs, but all other persons in the world, who were of full age, out of prison, of sound memory, and within the four seas the day of the fine levied, unless they put in their claims within a year and a day, as appears by statute 18 Ed. 1; but by 34 Ed. 3, all persons were permitted to falsify the fine at any distance of time, which by 4 Hen. 7, was again limited to five years after proclamation made.
The old rule was that the husband must be a party with the wife to her conveyance; but if she levy a fine as a feme sole without her husband, it will be good against her and her heirs; though the husband may avoid it during coverture. (Earl ofBedford's case, 7 Coke, 71; 10 Coke, 43; Acherly v.Vernon, Willes, 160; Compton v. Collinson, 1 H. Bl. 341;Cruise on Fines, 110; 2 Comyn's Dig. 231-239; 1 Roll. 346,b. 50)
The books all agree that although the wife have no power during the coverture, to alienate or charge her estate, so as to destroy her husband's interest therein, yet she may nevertheless, bar herself and her heirs, by a fine levied solely by herself, without her husband, if he do not enter and avoid the estate of the connusee; and the reason given, is because she was examined *Page 21 and had the power of the land. (Mary Portington's case, 10Coke, 43; Clancy, 177; Compton v. Collinson, 1 H.B. 334; Roper, 1, 142; 1 Woodesons' Lectures, 263; Zouch andBamfield's case, 1 Leon, 82.) The wife and her heirs are estopped by this fine, to claim any thing in the land, and can not be permitted to say she was covert, against the record; (Cruise on Fines, 82; Hob. 225;) but the husband may enter and defeat it, either during coverture, to restore him to the freehold held jure uxoris, or after her death to restore him to the tenancy by the curtesy; because no act of the feme covert can transfer that interest which the intermarriage has vested in the husband. (Cruise on Fines, 82; Clancy, 178.)
The reason above given by Cruise, founded upon Hobart, why theheirs were estopped, namely, that they "can not be permitted to say she was a feme covert against the record," seems to me to conflict with the law as cited before, especially as to minor heirs. The original case in Hobart, however, does not go to such a length. His words are, "if a woman covert levy a fine alone, as if she were sole, this shall bind her, for the reason thatshe shall not be received to say that she was covert, though her husband shall;" but he makes no mention of heirs.
The doctrine evidently deducible from all the cases, places the estoppel upon just and reasonable grounds; the wife was allowed to alienate her estate of inheritance by levying a fine, and this would be a bar against her and her heirs, for the very satisfactory reason given in Mary Portington's case, (10Coke, 43,) "that she was examined and had the power of the land." But on the other hand she could not alienate or charge her estate "so as to destroy her husband's interest therein," and if levied during coverture, the husband might enter and defeat the fine, for the other equally satisfactory reason, namely, during coverture "to restore him to the freehold jure uxoris," or after the death of the wife "to the tenancy by the curtesy."
If then the husband actually had no interest in his wife's estate, either jure uxoris, or by the curtesy, but having parted with all his marital rights, had become functus officio, he could not avoid the fine levied by his wife even by the common law, *Page 22 cessante ratione legis, cessat ipsa lex. The same doctrine is affirmed, in a different form, in Compton v. Collinson, (1H. Black. 341.)
And hereupon Judge Reeves in his treatise upon the domestic relations, (tit. Baron and Feme, p. 114,) sensibly remarks, "if a wife in England, should convey her real property by a fine or common recovery, without her husband, if he did not afterwards disagree to it, she and her heirs would be bound, the coverture notwithstanding." In this case we have only to inquire, says he, whether any right of the husband is affected by it? and then he answers, most certainly it deprives him of the usufruct of such property. Therefore it is, that he may disagree to the conveyance, and render it void. By his disagreement to the conveyance of his wife, he restores himself to the freehold of such estate, which he holds in right of his wife during coverture; and as the case may be, to the tenancy estate, after her death, during his life. If his wife should die without having had by him a child born alive, he could not after her death have avoided her conveyance; for in that case his marital rights could not be affected by it; if he do not dissent to the conveyance of his wife, he waives that right, and no person can complain. The husband and wife are joined in a conveyance, that the husband may convey his estate therein, which lasts, at least, during coverture; and the wife joins that she may transfer the fee. If the husband had not any right which could be affected by the wife's conveyance of her real property, it would not be in his power, because he is a husband, to prevent her from conveying effectually, without his consent. She can do no act without his consent, which in any way impairs his rights; but if no rights of his are impaired, there is no reason why his consent is necessary. (Reeves, Baron and Feme, 115; Compton v.Collinson, 1 H.B. 341-346; Walton v. Hele, 2 Saund. 177; 2 Br. C.C. 385.)
The late eminent Chancellor Kent evidently entertained a strong bias against enlarging the powers of femes covert; and would willingly have reduced them much within the scope of the English rules, as appears from his opinion in Jaques v. The *Page 23 Methodist Epis. Ch. (3 John. Ch. Rep. 78,) and in his commentary upon the same doctrine as expounded in Walton v.Hele, (2 Saund. 177.) But in commenting upon the act of 16 February, 1771, he says that "the deeds of femes covert, in the form used in other cases, accompanied by such an examination, have ever since been held to convey their estates, or any future contingent interest in real property." (2 Com. 128.) A doubt expressed by him whether a deed would be void, without the joinder of her husband, I think from the context, refers very plainly to the case of a non-resident. In his remarks upon the case above cited of Walton v. Hele, he says, "this is a very strong case to show that the wife may deal with her land by fine, as if she were a feme sole; and what she can do by fine in England, she may do here by any legal form of conveyance, provided she execute under a due examination." (4 Com. 140;see also his opinion in that case, in 3 John. Ch. Rep. 145.)
In speaking of our statute, providing that no estate of a femecovert residing in this state shall pass by her deed, without a previous acknowledgment and a private examination, Judge Sutherland emphatically says, "this provision is an enlargement and not a restraini of the common law powers of a femecovert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowledged, the same power and effect as a fine." (Martin v.Dwelly, 6 Wend. 12.) We have seen that by fine, a married woman could bar herself and her heirs. But if any of the husband's marital rights were compromitted by it, he could falsify the fine. Our statute is an enlargement of the common law power of a feme covert. She can by deed, duly acknowledged, bar herself and her heirs; but if any marital rights are infringed by her conveyance, he has his remedy by action against the grantee. Very soon after the settlement of this country, the mode of alienation by femes covert, by deed, prevailed, and the expensive process by fine, fell into disuse. (Jackson v.Gilbert, 15 John. 109.)
The charter of the Duke of York, adopting the principle which was essential to the validity of a fine, required the private *Page 24 examination of the feme covert, to the validity of her deed. But that charter had no existence after 1688. A similar requirement was found in an act of the colonial legislature passed 1691, but was repealed in 1697. The first formal act of the colonial legislature recognizing the right to record the deed of a feme covert, conveying real estate, was passed 1771, which recited that "whereas it has been an ancient practice in this colony to record deeds concerning real estates, upon the previous acknowledgment of the grantors, or proof made by any of the subscribing witnesses, before a member of his majesty's council, a judge of the supreme or county court, or a master in chancery, and sometimes before justices of the peace; and whereas there are lands and tenements held under the deeds of femes covert, not acknowledged in manner aforesaid, and yet made bona fide, and for valuable consideration; the purchasers whereof, and those holding under them, ought to be secured both in law and equity, against the respective grantors, their heirs and assigns." It was therefore enacted, "that no claim to any real estate, whereof any person is now actually possessed, shall be deemed to be void, upon the pretence that the feme covert, granting the same, had not been privately examined before any of the public officers or magistrates aforesaid." The act then directs the manner in which deeds should thereafter be acknowledged and recorded. As nothing is said in the act about the concurrence of her husband, the law,ex vi termini, rendered the acts of the feme covert valid, though the husband did not join.
The act concerning tenures, passed 1787, provides that it shall forever thereafter be lawful for every freeholder to give, sell, or alien the lands or tenements, whereof he or she was or at any time thereafter should be seised in fee simple." While the law of 1771, which has remained and from time to time been re-enacted without change, makes the validity of the deed of a feme covert depend solely upon her previous acknowledgment, in the manner there provided.
So far as my researches extend, there has been no decision in our courts directly upon the point at issue, though I find several *Page 25 incidental expressions of several judges, not amounting in authority even to obiter dicta. In Jackson v. Vanderheyden, (17 John. 168,) the question was whether a feme covert was bound by her covenant of warranty; and Spencer, judge, merely says, "she may, in conjunction with her husband, convey her real estate," of which there certainly can be no doubt. In giving his opinion in Martin v. Dwelly, (6 Wend. 13,) Judge Sutherland quotes this remark of Judge Spencer without explanation; although in the same case he says, "the statute gives to her deed, when duly acknowledged, the same power and effect as a fine." The same remark of Judge Spencer was also quoted in that case by Beardsley, senator, to which he adds the very erroneous observation, that "at common law the wife could part with her interest in lands only by joining with her husband in a fine." These remarks were all out of place, for the only question before the court in Martin v. Dwelly was, whether a deed executedjointly with her husband, but not acknowledged pursuant to the statute, was valid against the feme covert, as anagreement to convey.
In a later case, (1 Hill, 121,) a deed was executed by several femes covert, without their husbands, and not acknowledged by them on a separate examination, as the statute requires. His honor Judge Bronson in his opinion to be sure states the fact truly, that the femes covert executed the deeds without their husbands; but there is nothing in the case to show that he put his decision at all upon that ground; for he says "there was no such acknowledgment as the statute required for passing the estate of a feme covert," and then adds "without an acknowledgment on a private examination, c. the deed was a mere nullity."
On the other hand, in the case of Jackson v. Holloway, (7John. 86,) Thompson, judge, says, "she (feme covert) may, during her coverture, part with the whole or any part of her interest in real estate, if the deed be acknowledged in the mode prescribed by the statute." "The words of the statute are general and extend to any estate of the feme covert." A similar opinion, unqualified by any joining of the husband, is expressed *Page 26 by Kent, chancellor, in Demarest v. Wynkoop, (3 John. Ch.Rep. 144.) Late English decisions can have no bearing on this case, as all conveyances by femes covert are now made in England by deed, under the provisions of the statute for the abolition of fines and recoveries, passed 3 and 4 Wm. 4, ch. 74, the 77th section of which, unlike ours, expressly requires the husband's concurrence, except as otherwise provided by that act.
I am of the opinion that the mortgages executed by Gertrude Treat, without the concurrence of her husband, having been acknowledged pursuant to the statute, were valid deeds; and the judgment of the court below should be affirmed.