The opinion of the Court, Shepley, C. J., Wells, Rice, Hathaway and Appleton, J. J., was drawn up by
Hathaway, J.The demandant, a married woman, claims the demanded premises under a deed from the State of Maine, dated August 26, 1845.
At the time of the trial she was, and had been for fifteen years, the wife of Leonard Eldridge. The defendant claims title to the same premises by virtue of the levy of an execution thereon, March 7, 1846, as the property of said Leonard Eldridge, which execution was issued on a judgment recovered against said Leonard &. al. in favor of Albert Merrill, *151assignee of J. O. Nickerson, a bankrupt, upon a note dated Aug. 11, 1841, payable on demand and interest, and the defendant derives title from said Merrill by mesne conveyances to William A. Preble, whose tenant he was as alleged in his brief statement. The defendant can derive no benefit from his brief statement as a plea of non-tenure of the freehold, if it were intended as such, for that is matter in abatement only, statute of 1846, chap. 221, and the plea was not filed in season. The plaintiff objected to the admission of the judgment, execution and levy, because there was no evidence of the regularity of the proceedings in bankruptcy, &c.
The presumption is, that all judgments rendered by Courts of competent jurisdiction are properly rendered and upon due preliminary proceedings, and there being no evidence in the case to the contrary, the documents objected to, were properly admitted as muniments of title.
At common law the husband has a life estate in lands, of which his wife owns the fee. The usufruct is his, and is an estate in the land, which may be taken in execution for his debts. Whatever interest, therefore, the husband had in the land, passed by the levy to Merrill
But the demandant claims that by statute of 1844, chap. 117, entitled “ an Act to secure to married women their rights of property” as amended by statute of 1847, chap. 27, the wife’s lands are exempted from liability for the husband’s debts; and that therefore nothing passed by Merrill’s levy.
The levy of the execution was made March 7, 1846, so that if Merrill acquired any title by it, that title became perfect before the amendatory Act of 1847, and the rights of the parties remain as at common law unless changed by the Act of 1844. The Act of 1847 could not impair those rights.
By the statute of 1844, sec. 1, “any married woman may become seized or possessed of any property, &c. in her own name and as of her own property ; provided it shall be made to appear by such married woman, in any issue touching the validity of her title, that the same does not, in any way, come *152from the husband after coverture.” The demandant cannot avail herself of the benefit of the statute, without a compliance with the requirement of the proviso, and the burden of proof is upon her. Viles v. Jenkins, 32 Maine, 32.
Whether she has complied with the requirements of the proviso or not, is a question of fact.
By a Resolve of the Legislature, Feb. 22, 1844, the Land Agent was authorized “ to sell the State lands in Greenbush for cash, or labor to be appropriated on the river road in Greenbush,” and the demandant’s deed purports to have been made in pursuance of that Resolve “for the consideration of one hundred dollars, paid for the use of the State by Lucretia H. Eldridge in labor on the river road in Greenbush.”
The demandant presented no evidence of her compliance with, the requirement of the proviso in the statute, but the deed, and her counsel contend that the deed was prima fade sufficient.
We are of opinion that the demandant’s deed alone is not sufficient to authorize the Court to decide that her property in the land did “ not, in any way, come from the husband after coverture.” But if it were so, yet the common law regulating the rights and duties of husband and wife must be regarded as operative so far as it has not been changed by the statute. And in Swift v. Luce, 27 Maine, 285, it was held that the statute of 1844, ch, 117, “ does not determine whether the husband, should he survive the wife, shall be entitled to any right in her personal property or real estate during his life.”
A nonsuit must be entered as agreed by the parties.