The decision of one of the questions "raised by the bill of exceptions seems to be conclusive of the rights of the parties, and to this we have confined our attention. That question is, whether the tenant, whose wife is heir at law of Mrs. Heffrein, is estopped to deny the validity of the deed under which, through the deeds of Hooton, the demandant claims.
The deed of Mrs. Heffrein to Hooton, proprio vigore, conveyed no estate. The separate deed of a married woman, without the assent of the husband, it was absolutely void. Fowler v. Shearer, 7 Mass. 21. Concord Bank v. Bellis, 10 Cush. 276. It has no force, because the grantor had no capacity to make it. The instrument has the form and semblance of a deed, and nothing more. Indeed, the demandant does not contend that this deed has of itself anv validitv; but that, under the facts of *167the case, the tenant is estopped to deny its validity; or, in other words, the title of the demandant is the result of estoppel, and not of grant; or to speak perhaps more precisely, of an estoppel that works a grant.
The demandant, to show title in himself, offers the two deeds of mortgage from John B. Hooton. Deeds of warranty, they make prima facie evidence of the seizin of the premises in the demandant. The tenant then shows that the premises belonged to Mrs. Smith; that she died intestate; that his wife was her daughter and heir in law. The tenant thus makes an elder title. The demandant must now show that the estate that was in Mrs. Smith passed out of her and into his grantor. He undertakes to show it passed by deed. To do this, he must prove not merely the execution of the instrument, but its execution by one having the requisite legal capacity to malte a deed. He offers for this purpose a copy from the registry, .of a deed, pm-porting to be from Mrs. Smith to his grantor, bearing date August 1st 1834. Assume that this is sufficient prima facie evidence of the execution and delivery of the deed at the time of its date; it is only prima facie, and when the evidence is closed, the burden is still on the demandant to show its execution and delivery, by one competent in law for that purpose. When the evidence is in, it appears that this deed was made, delivered, acknowledged and recorded, when the grantor was a married woman, and incapable of making it; that is, that it was absolutely void. By force of the deed, then, the demandant wholly fails to show that the land had passed from the tenant’s wife’s mother to his grantor.
Then the demandant says that the deed, upon its face, bears date of the first of August 1834, when the grantor was sole and capable of making a deed; that it was signed with the name she bore before her marriage with Heffcein; and was so signed and dated with a fraudulent purpose, on her part, of giving the deed an effect, which it would not have had in her true name, and under the true date; knowing it would deceive and impose upon some person to be affected by it; and when the agent of the demandant called upon Mrs. Heffrein, stating to her that he *168wished to examine Hooton’s title, and informing her that the application was made with a view to a mortgage, she produced the deeds of the land to herself, but did not communicate to the agent any defect in Hooton’s title ; and that therefore, whether the fraudulent purpose was to deprive her husband of his interest in the estate, or any other, the grantor and her heirs are estopped to deny that the date of the deed, which she executed and caused to be recorded, was the true date; and as against her and her heirs, the deed will be taken to be of the same effect as if it had been executed and delivered at the time of its date, when she was unmarried and had capacity to execute it; or in other words, the tenant is, upon these facts, estopped from setting up any title in Mrs. Heffrein at the time Hooton conveyed to the demandant. This we understand to be the view of the case taken by the learned judge, though perhaps in a critical examination of the language used by him, the silence of the grantor as to the defect of Hooton’s title will not be found to be included as an element in the instruction given to the jury.
This raises the material question at issue between the parties, whether a married woman and her heirs may be barred of her estate by an estoppel in pais.
She can make no valid contract in relation to her estate. Her separate deed of it is absolutely void; any covenants in such separate deed would be likewise void. If she were to covenant that she was sole, was seized in her own right, and had full power to convey, such covenants would avail the grantee nothing. She could neither be sued upon them, nor estopped by them. The law has rendered her incapable of such contract, and she finds in her incapacity her protection; her safety in her weakness. Her most solemn acts, done in good faith, and for full consideration, cannot affect her interest in the estate, or that of the husband and children. The strongest possible example of this was presented in the case of the Concord Bank v. Bellis, above cited, in which it was held that where an estate was conveyed to a married woman, and she at the same time gave back a deed of mortgage to secure a part *169of the purchase money, such deed of mortgage was wholly void. Arid we think a married woman cannot do indirectly what she cannot do directly ; cannot do by acts in pais what she cannot dp by deed; cannot do wrongfully what she cannot do rightfully. She cannot by her own act enlarge her legal capacity to convey an estate.
This doctrine of estoppel in pais would seem to be stated broadly enough, when it is said that such estoppel is as effectual as the deed of the party. To say that one may, by acts in the country, by admission, by concealment or by silence, in effect do what could not be done by deed, would be practically to dispense with all the limitations the law has imposed upon the capacity of infants or married women to alienate their estates.
But if Mrs. Heffiein were personally estopped to say this deed was executed by her while under coverture, we are not prepared'to say that the daughter would be so estopped. The condition of the estate was this : The fee was in Mrs. Heffrein, with limited power of alienation ; with no power indeed to convey, except by the joint deed of herself and husband ; Rev. Sts. c. 59, § 2; and with no power to devise it. The law had. given her no power by any act of hers to change the destination of the estate, or impair the title which at, her decease would vest in her child. Upon her decease, the daughter enters into possession of the estate. She is rightfully there; the estate is in her, unless there has been an alienation of the estate in the mode prescribed by law, in the lifetime of the mother. If it be said that the mother was guilty of misrepresentation and concealment, for which coverture affords no protection ; the answer might well be, that whatever might be the effect upon her personally, even if it estopped her to claim any interest in tl«« estate, it could not do what the statute has not done, give her a power so to alienate the estate as to prevent the entry of her heirs at law upon her decease.
Such seems to us the result of the application of well settled principles of law to the case at bar. And upon a somewhat diligent examination of the authorities, we have found none to *170lead us to a different conclusion. The diligence of the counsel for the demandant has cited but two cases, having much tendency even to sustain the position that the estate of a married woman, incapable of making a deed, may pass by estoppel in pais. These are Hunsden v. Cheyney, 2 Vern. 150, and Savage v. Foster, 9 Mod. 35.
In both these cases the husband and wife, who jointly were capable of levying a fine, were parties to the original frauds. They were both suits in equity against the parties to the fraud. They both rely, as matter of authority, upon the case of the estoppels of infants, who are not incapable of conveying, but whose deeds are voidable only and not void; and neither of the cases is, we think, entitled to the highest consideration. If they established the point, for which they are cited, that the estate of a married woman may pass by her acts in pais, not only without the concurrence of the husband, but in fraud of his rights, we should question their application under our system, where the statute of frauds is equally binding in courts of equity as of law; where the powers of married women, in the conveyance or devise of lands, are defined and limited by express statute; and where the titles to real estate are matters of public record.
No case at law has been cited, nor have we found one, in which it has been held that the estate of a party has been barred by estoppel in pais, who was incapable of conveying by deed. And though courts of law have liberally applied the doctrine of estoppel in pais to cases of personal property, in tire transfer of which no technical formalities intervene to prevent its application, we know of no case in which it has been applied to a party incapable in law of making a contract.
The result of the views we have felt compelled to take of the case is, that the deed of Mrs. Heffrein to the demandant’s grantor was absolutely void, and that this tenant is not estopped to deny its validity. New trial in this cowrt.