The plaintiff claims title under a deed from Jane E. Hunt, the wife of Benjamin Hunt, and the principal question in the case is, whether the deed was so executed as to be valid. By Gen. Sts. c. 108, § 3, a married woman is authorized, among other things, to convey her separate real estate. But no conveyance of such estate is valid “ without the assent of her husband in writing, or his joining with her in the conveyance,” or the assent of a judge, in certain cases. In this deed the husband has not joined with the wife as grantor; for in all its words of conveyance and covenants of seisin and war-anty it purports to be merely her deed, and in the description off the land it is said to have been conveyed to her by a deed which is referred to. The husband is first introduced as a party in the testimonium clause. That part of the deed is as follows:
“ In witness whereof, I, the said Jane E. Hunt, and Benjamin Hunt, my husband, in token of our release of all right and title of or to both dower and homestead in the granted premises, have hereunto set our hands and seals this twenty-fifth day of September in the year of our Lord eighteen hundred and sixty-two.” The instrument is signed and sealed by both of them.
This language states the purpose for which the husband set his hand and seal to the deed jointly with his wife, namely, “ in *406token of our release of all right and title of or to both dowel and homestead in the granted premises.” The general rule of construction which is applied to such cases is, that the expression of a purpose excludes the idea of a signature or sealing for any other purpose. Expressio unius exclmio■ alterius. If anything can make this doubtful in the present case, it is the fact that the expressed purpose is absurd; because there was no right of dower or h'omestead in the husband or wife, which these words would tend to convey. The language is therefore nugatory. Our methods of conveyance are so simple that deeds are often prepared by persons who are extremely ignorant in respect to such matters, and probably the form of this deed is- to be imputed to the ignorance of the scrivener. It cannot be supposed that the parties adopted the language intelligently.
One of the rules to be adopted in the construction of deeds is, that words which are insensible are to be rejected. 3 Atk. 136. Another rule to be adopted, if possible, is, that when a deed cannot take effect according to the letter, it is to be construed so as to take some effect or other. Shep. Touchstone, 87. If, in pursuance of these rules, we reject the unmeaning words, and seek to give some effect to the instrument in preference to declaring it wholly void, we shall find that the husband has signed and sealed it “in witness” that his wife has executed it. If we would sustain the deed, it is necessary that we interpret these words as expressing his assent to the deed as a valid conveyance by his wife. A majority of the court are of opinion that they may be so interpreted, since they cannot possibly have any other effect. If they did not mean this they were unmeaning, and the deed is a nullity; because, as we have seen, the statute ■ equires an assent in writing, which means a written signature .o written words expressing assent. Regarding the deed as containing the husband’s written assent to the wife’s conveyance, it is to be held a valid conveyance, and the ruling on that point was correct.
The defendant asked the court to instruct the jury further that if they should find that the defendant had no notice of the plaintiff’s ownership of the property, then there was no promise *407express or implied, on the part of the defendant, to pay over the rents collected by him to the plaintiff, and the plaintiff cannot recover them in this action. The court declined to give this instruction, and this ruling is excepted to.
It appears that the defendant began to collect rents in 1860, as the agent of one Boynton, who then held two mortgages upon the land, made by Benjamin Hunt. But Boynton sold and assigned his mortgages prior to October 1862, and by that assignment his own authority and the authority to collect rents was terminated. He had not entered to foreclose his mortgages, but collected the rents under an arrangement with Hunt, by which he was to receive the rents and profits. This arrangement would of course terminate when be ceased to be mortgagee. After he made his assignment, namely, in October 1862, he agreed by paroi to sell to the defendant one of the mortgages ; but such an agreement can have no effect upon this case. The defendant must be regarded as having received the rents from the tenants after that period under an implied agreement with them that he was the agent of the true owners of the land, and not under any claim of title in himself; He testified that he had no knowledge of the existence of the deed from Jane E. Hunt to the plaintiff till March 1863, when it was made known to him. But assuming that he believed Boynton to have the right to the rents, it would not follow that the title was in controversy, but merely that he collected the money under a mistake as to the ownership. There does not appear to be any adverse claimant to the rents by the facts stated in the report, and the only question presented is, whether the defendant, who has, without authority from the plaintiff, collected rents which belong to him, is liable to an action by the plaintiff to recover the money thus received.
In Hall v. Marston, 17 Mass. 575, it is said that no privity of ontract is necessary between the parties to support this action, except that which results from one man’s having another’s money, which he has not a right conscientiously to retain Where the fact is proved that he has the money, if he cannot show that he has legal or equitable ground for retaining it, the *408law creates the privity and the promise. The same doctrine has been stated in several other cases, and is well settled. Upon this principle, the action may be maintained,
Exceptions overruled.