The decision of the court below, as to lot No. 3, was clearly right. The power given to the trustees, by the first codicil to the will, was sufficient to authorize them to mortgage the trust estate. It empowered them to dispose of it in fee simple or otherwise, as the cestui que trust should request or desire. Under this general delegation of power, the right to mortgage is clearly included. The cases of Cumming v. Williamson, (1Sand. Ch. Rep. 17;) Waldron v. McComb, (1 Hill, 111;) andBloomer v. Waldron, (3 Hill, 361,) were cases of a naked power to sell. In such cases a power to mortgage can not be implied. But the power to dispose of in fee simple orotherwise, would seem to include within it every disposition of the property, which the absolute owner thereof might or could make.
But the important question in this case arises in regard to the real estate, designated in the case as lot No. 1, whether the mortgages in suit are liens upon the interests of the heirs of Gertrude Treat in that lot. The supreme court placed their decision upon the assumption that the interest of Gertrude Treat in that lot, at the time of the execution of the mortgages, was of the nature of a separate estate, which, in equity, *Page 27 she had the power to dispose of as a feme sole. If the court was right upon this point, it obviously disposes of the other points in the case. It becomes, therefore, a question deserving of a careful examination.
The trust created for the benefit of Mrs. Treat, by force of the will alone, was only a separate estate in her during her husband's life. The testator, at his death, was seised of that life estate only, and he could not possibly devise a greater estate than he owned. A life estate, therefore, is all that was vested in the trustees for her benefit. If therefore, a separate estate became vested in her greater than this life estate, which she had the power to dispose of as a feme sole, it must have occurred in one of two ways. Either the estate of inheritance which was vested in her before, became merged in this equitable life estate, or that estate of inheritance was a separate estate in her, independent of the devise. I am satisfied neither of these alternatives are tenable.
Separate estates in married women, which courts of equity recognize their right to dispose of as femes sole, are strictly equitable estates. They are always created by deed, devise or marriage settlement, vesting the legal estate in some third person. Her power over such property is in the nature of a power of appointment, and she is confined in the exercise of the power to such restrictions as are contained in the instrument creating the estate. (3 John. Ch. 77; Story's Eq. Jur. 1393; 9 Smedes Mar. 435; 4 Barr, 93; 4 Yerger, 375.) But the estate which is left in the wife, in lands held in her right after the husband's life estate has been disposed of to a third party, is strictly a legal estate. And it can not be necessary to cite authorities to show that a legal estate of inheritance can not be merged in an equitable estate, so that the whole should become an equitable interest only. The legal title must be vested in some one, and uniting the legal and the equitable in one person, could not possibly have the effect to divest him of his legal interest. If the interests are such as to effect a merger by uniting them, the equitable must necessarily merge in the legal interest. *Page 28
Nor is the second alternative any more tenable. As we have already said, this estate is strictly a legal one, and can only be aliened by her in some mode recognized by courts of law. It is no more a separate estate than any future estate vested in a married woman. Vested remainders and other estates of the same character, where there has been no actual seisin that would entitle the husband to curtesy, would be separate estates within the principle contended for. These are all strictly legal estates, and courts of equity recognize in married women no greater power to dispose of them than is recognized by courts of law. It is only strict equitable titles which courts of law do not recognize at all, that may be transferred by a married woman as a feme sole. If courts of equity should recognize a different method of disposing of legal estates from that required by courts of law, titles to land would be involved in inextricable confusion.
Again, if this is to be deemed a separate estate in the wife, it may be transferred by her by deed with a simple acknowledgment, without any private examination, nay, without any acknowledgment at all, as far as the mere validity of the conveyance is concerned. But it would not be pretended that the wife's interest in lands held by the husband in right of the wife, could be conveyed by the joint deed of herself and husband, without an acknowledgment by her upon a separate examination according to the statute. If, therefore, the conveyance of the husband's interest leaves a separate estate in the wife, which she can convey as a feme sole, it presents this absurdity, that the husband and wife by separate conveyances can pass an interest which they could not pass by a joint conveyance. Again, if this interest of the wife be in the nature of a separate estate, then the proceeds of a sale of such interest would also be her separate property, and not subject to her husband's control; yet if the same property be transferred by a joint deed of conveyance, he would be entitled to the consideration money as soon as received. In fine, it is clear that the mortgage can not be sustained as a lien upon the land, upon the assumption that the whole interest of Mrs. Treat was in equity *Page 29 in the nature of a separate estate, and thus subject at the time of the execution of the mortgage to her control and disposal as a feme sole.
The remaining question, and one which does not seem to have been expressly adjudicated in this state, is whether a married woman can convey her legal interest in lands alone, without her husband joining with her in the conveyance. At common law, afeme covert could not convey her interest in lands by deed at all, her deed being absolutely void. This was the necessary effect of the marriage relation upon the condition of the wife, and her power to contract. "By the marriage, the legal existence of the woman was suspended, or at least incorporated and consolidated into that of her husband, under whose wing, protection and cover, she performed every thing." (1 Black.Com. 442.) Having no capacity to contract, it followed as a necessary consequence, that her deed of conveyance was void. Still a method of conveyance was invented through the aid of the courts of law, by which, with the concurrence of her husband, she was enabled to alien her lands. They might join in levying a fine or suffering a common recovery. And although this method probably originated in actual suits, where the title of the wife to the lands was actually litigated, and adjudged, yet it has been, since the time of the oldest reports in England, considered a mere species of conveyance, as much so as a transfer of lands by grant or deed of bargain and sale. But her husband was always required to join with her in levying a fine, or suffering a recovery; and a fine levied by a feme covert alone, where her coverture appeared upon the record, was void, or at least voidable, and would neither bind her nor her heirs. (2 Roper onHusband and Wife, 141; 1 Siderfin, 122; 1 Taunton, 35; 2Wilson, 1.) Where the wife levied a fine as a feme sole, and her coverture did not appear upon the record, if the husband did not avoid it in his lifetime, it would bind her and her heirs. (2Roper, 141.) This was put expressly upon the ground that she was estopped from contradicting the record and alledging that she was a feme covert, when by the record she appeared to be afeme sole. (2 Roper, sup.; Hobart, *Page 30 225.) Some of the elementary writers have not noticed this distinction, and have therefore laid it down as a general rule, that a fine levied by a married woman was binding upon her and her heirs, unless her husband entered in his lifetime and avoided it. (2 Kent's Com. 151; Clancy, H. W. 177.) But upon a critical examination of the authorities, the distinction will be found clearly established. (Hobart, 225; 2 Wilson, 1.) It is manifest that a fine thus levied bound the wife, on the ground of estoppel alone; for it was always competent for the husband to enter and avoid the fine, for the benefit of the wife and her heirs, as well as for himself. (2 Kent's Com. 151; Clancy, 178; Co. Lit. 46, a.) If therefore it operated as a direct conveyance of the wife's interest, the entry of the husband might restore him to his own rights; but it would not affect her interest. Subject to this exception, a fine levied by a married woman without the concurrence of her husband was void, and bound neither herself nor her heirs, and the same rules were also applied to common recoveries. (1 Roll. Ab. 347; 2 Com. Dig. 97.)
So copyhold lands held in right of the wife, might be disposed of by the husband and wife joining in a surrender. (1 Roper onH. W. 142.) And in some localities, by a particular custom, the wife's interest in lands might be aliened by the husband and wife joining in a deed of bargain and sale. (Roper, supra; 2Inst. 573.) But by no custom was the concurrence of the husband ever dispensed with at common law. Thus in the case of Stevens v. Tyrell, (2 Wils. 1,) an attempt was made to sustain a surrender of copyhold lands, made by the wife without her husband's concurrence, by proving a custom to that effect; but the court held that such a custom would be contrary to law, and the proof was rejected. (Bell on H. W. 194.) It is true that the court of common pleas, in Compton v. Collinson, (1 H.Bl. 334,) held a surrender by a feme covert good, but in that case the husband had covenanted that the wife might surrender at any time, and he would join with her. The decision of the court cannot be supported upon any other ground.
In all these methods of conveying the interest of a feme covert in lands, it was also necessary in order to conclude her, in *Page 31 addition to the concurrence of her husband, that she acknowledge upon a private examination that the act was voluntary on her part, and not influenced by fear or compulsion of her husband. (2Bl. Com. 293.)
At common law, therefore, two things were deemed essential to enable a feme covert to convey her lands; 1st, the concurrence of her husband; and 2dly, that the act be ascertained in the mode prescribed by law to be voluntary on her part, and not from fear or compulsion of her husband. The reason of these restrictions is very concisely stated by a late writer upon the marriage relation. "For the wife, by the disabilities of coverture, was precluded from disposing of her lands without her husband's concurrence, and to guard her against an undue exercise of marital authority on his part, the law would not suffer her to part with her interest until it was first ascertained that it was of her own free will." (McQueen, Husband and Wife, 27.) The same restrictions are preserved in the late act of 3 and 4 William 4, ch. 77, abolishing fines and recoveries. By that act married women are enabled to convey their lands by deed of bargain and sale, but it is made necessary that the husband join in the conveyance, and that the wife acknowledge, before certain officers therein specified, that she executed the deed freely and voluntarily.
In the early settlement of this country the common law mode of conveying the lands of married women by fine or common recovery was never adopted by the colonies, but the more simple mode of conveyance by deed was used. We have no authentic history of the circumstances under which this mode came into practice. Able jurists have suggested different theories in regard to it. It is sufficient that the custom became so general at an early period in the colonies, that it became a portion of the general law of the land, and as firmly established as if it had been expressly enacted by statute. Nor have we any authentic history of all the solemnities which were then deemed necessary to be observed in the form and execution of these deeds of conveyance. But that it was deemed necessary that the husband should join in the deed seems to be universally conceded. It *Page 32 was also essential that the wife should acknowledge it on a private examination. If we had no authority upon the subject we should come to the conclusion that these requisites were not dispensed with by the colonists. Although from the great importance among the early settlers of having cheap facilities for the transfer of lands, they might well adopt the custom of some locality in the mother country instead of the tedious and expensive method of alienation by fine or common recovery, especially as they had not the requisite courts to make that method available; yet they would not be likely to reject any essential requirements, whose observance would be attended with no particular inconvenience. They generally adhered strictly to the common law, a cardinal principle of which was that a feme covert had no power to contract or dispose of property independent of her husband.
But we are not left to speculation alone upon this point, as to what was in fact the custom of the colonies in this respect. InFowler v. Shearer, (7 Mass. 14,) Chief Justice Parker speaks of the custom of married women conveying by deed, as the common law of New England, and says "that the usage never extended to authorize the wife to convey any interest she has in lands without her husband joining in the deed of conveyance." The same is laid down as the custom by Judge Story. (3 Mason, 347; 5 id. 67; 4 id. 45, 62, 273. See also Jackson on RealActions, 326; 14 Maine Rep. 432; 3 Greenl. 63; 1 Verm.Rep. 20.) To show that the usage in other colonies was the same, I may cite 1 Dallas, 11, 15; 1 Binney, 47; 3 Har. Gill, 371. The same custom of the colonies is still adhered to, and has not only become the settled law of those states, but the new states have also adopted the same principle. Unless the state of New-York is an exception, I know of no state in the Union where the common law is in force which does not require, to render the deed of a married woman valid, that the husband shall join with her in the deed. (3 Rand. 464; 9 Mass. 161; 4 Conn. 44; 1Pet. 109; 1 Fair. 178; 3 Blackf. 201; 7 id. 66; 3 Litt. 395; Wright, 205; 3 Wharton, 457; 9 Ham. 121; 3 Har. Gill, 371; 1 Dall. 11; 1 Binney, 47.) *Page 33 Chancellor Kent, after an elaborate examination of this subject thus concludes: "Upon this view of our American law on the subject we may conclude the general rule to be that the husband must show his concurrence to the wife's conveyance by becoming a party to the deed, and that the cases in which her deed without such concurrence is valid, are to be considered exceptions to the general rule." (2 Kent's Com. 154.) The exceptions here alluded to relate to some cases in two or three states, which have held that the wife may, after a sale by her husband, by a separate deed release her right of dower to the grantee of the husband. (2N.H. 176, 405; 7 Mass. 14; 3 Greenl. 63.) But in Massachusetts this exception is understood now not to exist. (3Mason, 347; 4 id. 273; Jackson on Real Actions, 326.) The cases in Maine having merely followed what was supposed to be the rule in Massachusetts, it is now no longer the rule in that state. (14 Maine, 432.) In any view of these cases they must be deemed exceptions to the general rule which is explicitly recognized in those states where the exception is said to prevail. (2 Kent's Com. 153.) In many of the states the concurrence of the husband is made necessary by express statutes; but except in the new states these statutes only enacted what had already become law by general usage, or rather the usage itself had grown out of the requirements of the common law, and hence these statutes may be deemed simply declaratory of the common law. In the new states some statutory regulation was probably deemed necessary in order to abolish the common law method of conveyance by fine and common recovery, and to substitute the conveyance by deed. Hence most of their statutes relating to the subject are in form enabling statutes — enabling married women to convey by deed, but retaining in other respects all the substantial requirements of the common law method of conveyance.
We come then to the great question in this case: Does the state of New-York form an exception to all the states of the Union, in regard to the necessity of the concurrence of the husband in the deed of conveyance of the lands of the wife? It is incumbent on those who alledge that this state is an exception *Page 34 to every other state or country where the common law prevails, to prove it. Until that can be done, the presumption that the same law prevails here that prevails elsewhere in relation to this subject is irresistible. Unless therefore the statute of this state has changed the common law rule requiring the husband to join in the conveyance of the wife's lands, the case is clearly with the defendants. It is equally clear that he was required to join in the conveyance prior to the passage of the statute. This leads me therefore to the examination of the statute in question, and its effect upon this point; for the conclusion to which my brother Jewett arrived was influenced, I understand, mainly by what was supposed by him to be the force and effect of our statute in relation to the proof and recording of conveyances of real estate. (1 R.S. 758.) That part of this statute in relation to the acknowledgment and recording of deeds executed by married women was first passed in 1771, and has remained substantially the same ever since. In order to ascertain the true construction to be given to it, it becomes necessary to look at the circumstances under which it was enacted and the mischiefs which were intended to be remedied by it. Its title is "An act to confirm certain ancient conveyances, and directing the manner of proving deeds to be recorded." The preamble shows that irregularities had crept into practice in regard to theacknowledgments of deeds of conveyance by married women, and the first section of the act provided for confirming titles held under such deeds of conveyance, whilst the second section provided for future conveyances, "that no estate of a feme covert should henceforth pass by her deed, without a previous acknowledgment by her apart from her husband," before certain officers therein specified, who were to make a certificate thereof in the form substantially as required by the existing statute. (3 R.S. App. 22; 1 R.S. 758.) It is plain to me that the mischief which was intended to be remedied by this statute consisted in the want of the requisite private examination of the feme covert. But whatever the irregularities may have been, they were clearly connected with the proper acknowledgment of the instrument, and did not relate to any other *Page 35 question touching its form or execution. It was this irregularity and this alone, which it was the purpose of the act to remedy. The act can therefore decide nothing in relation to the question whether the deed of a feme covert would be valid without the concurrence of the husband. It is simply a restraining act, requiring deeds conveying the lands of married women to be acknowledged by them before certain officers and in a certain form, and restricting them from acknowledging in any other manner; thus preventing the repetition of the irregularities specified in the preamble, and re-establishing the ancient usage and custom of the colony in that respect. Such has been the construction of the act in numerous cases in our courts. (2Barb. Ch. Rep. 268; 17 Wend. 128; 15 John. 84.) The act does not purport nor was it intended to provide for the general requisites of the conveyance of real estate by married women, or under what circumstances they might make a valid deed of conveyance. That was left unchanged and unaffected by this act, and can not therefore be said to throw any light upon the main question under consideration.
This appears more clearly by the examination of some subsequent acts. This act was intended to apply to residents of the state; but lands were also held by married women who were non-residents of the state, and who might desire to alien them. As they would not be affected by our local customs allowing femes covert to convey by deed, it became necessary to pass the act of 1773. (3R.S. App. 23.) The purpose of the latter act would make it necessarily an enabling act, and it would be required to contain all the provisions deemed necessary to enable non-resident married women to make a valid conveyance, and at the same time to surround the exercise of that power with all those safeguards and restrictions required by the principles of the common law. And hence we find it both in form and substance an enabling act, containing all the provisions in relation to the acknowledgment contained in the act of 1771, and also the provision that the deed must be executed in conjunction with the husband. Is it reasonable to suppose that the legislature intended to make a distinction in the two cases? that *Page 36 they intended to dispense with the concurrence of the husband in deeds executed by married women residing in the state, but to require his concurrence in deeds executed by married women residing out of the state? to throw around the latter all the protection and restrictions required by the common law in the alienation of their lands, and leaving the former with no such protection? It would be very difficult to assign any plausible reason for such distinction. Nor is there any such distinction; but the difference in the phraseology of the two acts naturally and necessarily arises from the purpose which the legislature had in view in their enactment — the former being simply a restraining act intended to remedy certain specified mischiefs, whilst the latter is a general enabling act, containing all the provisions necessary in a conveyance by a married woman.
This construction of the statute receives confirmation from another part of the statutes of the state, which provides that "if a married woman execute a power by grant, the concurrence of her husband as a party shall not be necessary." (1 R.S. 736, § 117.) If such concurrence is not required in any case, this provision was entirely unnecessary. It therefore raises a strong implication that the legislature understood that in ordinary cases his concurrence as a party was required.
Again, although the point has not been directly adjudicated, the necessity of the husband's concurrence in the wife's deed has been assumed in numerous cases, and not a case or dictum, I venture to say, can be found in any book which sanctions an opposite assumption. (15 John. 87; 17 Wend. 128; 1 Hill, 121; 2 id. 249; 6 id. 177; S.C. 2 Barb. Ch. Rep. 268.) Several cases have indeed been cited by my brother Jewett, where nothing at all was said upon the subject, and for very obvious reasons. No question relating to this subject was raised in any of the cases. Now it will not require argument to show that affirmative dicta upon questions not arising in the case are entitled to but little weight. I am therefore utterly at a loss to conceive how the absence of such dicta should prove any thing. The fact that no case has ever arisen in our courts where any one has ventured upon the hazardous experiment of taking a title *Page 37 to lands from a married woman without her husband's concurrence, would seem to indicate the general sense of the legal profession, and is sufficient at least to overthrow all inferences from mere absence of authority.
The statute providing "that every person capable of holding lands, (except idiots, persons of unsound mind and infants,) seised of or entitled to any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the restrictions and regulations provided bylaw," (1 R.S. 719,) has been invoked to support the position that the concurrence of the husband is not necessary. This statute states only a truism which this whole investigation assumes. We assume that a feme covert has the right and ability to alien her lands, subject to the restrictions and regulationsprovided by law, and the only embarrassment which I have felt in the case has been occasioned by the difficulty in ascertaining the particular restrictions and regulations to which the right itself is subject. Upon this particular point the statute has afforded me but little aid.
In fine, whether we appeal to the general principles of the common law, to the requirements considered essential in every mode of conveying the estates of married women known to the English courts, to the colonial history of our country, to the universal custom of the other states, to the statutes and adjudications of our state, or the universal understanding of the profession, all concur in one result; to render a deed of conveyance by a married woman valid, it is essential that the husband should join with her in the deed. It follows therefore that the mortgage in suit in this case is not a valid lien upon the interest of the heirs of Gertrude Treat in the premises known as lot No. 1.
The money of the plaintiffs has been, it seems, expended in improvements upon the premises, which have added very much to their value; and it would be highly proper that those who have been benefited by the improvements should pay for them. But it will not do to pervert settled and salutary principles of law to obviate what may seem hard cases. Neither considerations of this character, nor the spirit of transcendentalism, by which it has lately been discovered that the conjugal relation *Page 38 may be improved by discarding all the salutary maxims not only of the common but of the divine law applicable to that relation, and creating separate and conflicting interests between husband and wife, should influence our conclusions. It is true that emanations of the latter spirit have crept into our statute book, whether for good or for evil time will determine. But this case having arisen under the law as it has existed for centuries, we should not anticipate cases which may arise under what may be considered by some the new era of light and knowledge.
I am therefore of opinion that the decisions of the courts below as to lot No. 1 be reversed.
BRONSON, Ch. J. concurred in the opinion of Judge PRATT.
Decree affirmed.