242. These disabilities have been more or less removed in all states by statute.
Under the disabilities of which we have heretofore treated there has been no loss of power to take lands, the disabilities being merely as to conveyances. But at common law a husband could disaffirm a conveyance made to his wife.28 If the husband did conto convey land, Baldwin v. Golde, 88 Hun, 115, 34 N. Y. Supp. 587; nor can a remainder-man, Mcmillan v. William Deering & Co., 139 Ind. 70, 38 N. E. 398.
25 Davis Sewing-mach. Co. v. Barnard, 43 Mich. 379, 5 N. W. 411; Scanlan v. Cobb, 85 111. 296; Rusk v. Penton, 14 Bush (Ky.) 490. Contra, Gibson v. Sopher, 6 Gray (Mass.) 279; Crawford v. Scovllle, 94 Pa. St 48; Flanders v. Davis, 19 N. H. 139.
26 Mansfield v. Watson, 2 Iowa, 111; Wilson v. Bigger, 7 Watts & S. (Pa.) 1ll; Wiley v. Ewalt, 66 111. 26; Warnock v. Campbell, 25 N. J. Eq. 48527 See Clark, Cont. 275.
28 Baxter v. Smith 6 Bin. (Pa) 427.
Real Prop.-25 sent to such a conveyance, the wife did not have power to avoid the conveyance.29 On the other hand, a married woman's deeds, at common law, were absolutely void.30 The statute of 3 & 4 Win. IV. c. 75, gave a married woman power to sell her lands if her husband joined in the conveyance, though it required that she be examined separate and apart from her husband, by an officer, as to whether her consent to the conveyance was voluntary. Any land, however, which constituted part of the wife's separate estate, she could deal with as if unmarried.31 In some states the deed of a married woman who is also an infant is void;32 in others it is voidable only.33 Conveyances at common law of a wife's lands could be made only by a fine or recovery.34 The disabilities of married women to take and deal with real estate have been very largely removed by statute.35 In some states they have as much power in this respect as if unmarried, though the statutes in many states provide that the husband must join in the conveyance, and the provision for a separate examination of the wife has been re-enacted in many states. The cases under these married women's acts, as they are called, are conflicting on many points, but it is held that the statutes must be strictly followed.36 At common law a wife could not take a conveyance of real property directly from the husband.37 In order to make such a conveyance of land, it was necessary for the husband to first transfer to a trustee, who would convey back to the wife.38 Relief was, however, granted
29 2 Bl. Comm. 293; Scanlan v. Wright, 13 Pick. (Mass.) 523.
30 2 Bl. Comm. 293. But see, as to her separate estate, ante, p. 72.
31 See ante, p. 72. She cannot avoid a conveyance of such land. Mcanally v. Heflin (Ala.) 17 South. 87.
32 Hoyt v. Swar, 53 111. 134; Youse v. Norcum, 12 Mo. 549.
33 Bool v. Mix, 17 Wend. (N. Y.) 119; Wilson v. Branch, 77 Va. 65; Losey v. Bond, 94 Ind. 07; Richardson v. Pate, 93 Ind. 423. See Ellis v. Alford, 64 Miss. 8, 1 South. 155.
34 2 Bl. Comm. 293.
35 1 Stim. Am. St. Law, art. 650. An attempted conveyance may operate as a contract to convey. Brown v. Dressier (Mo. Sup.) 29 S. W. 13.
36 Garrett v. Moss, 22 111. 303; Rumfelt v. Clemens, 46 Pa, St 455; Glidden v. Strupler, 52 Pa. St. 400; Elwood v. Klock, 13 Barb. (N. Y.) 50.
37 Shepard v. Shepard, 7 Johns. Ch. (N. Y.) 57.
38 Jewell v. Porter, 31 N. H. 34; Bancroft v. Curtis, 108 Mass. 47.
§§ 243-244) in equity when such a precaution had not been taken.39 The rule is now different in most states, and the husband may convey to the wife and the wife to the husband directly.40 In some states it is held that a wife cannot give a power of attorney to convey her lands;41 but where her disabilities have been removed there seems to be no good reason for this rule.42 Even at common law, when the disability of coverture was removed by death or divorce, the power to convey was restored. The power of a married woman to act as trustee has already been considered.44