This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The vendor must, if practicable, in person convey (a); the purchaser need not unnecessarily rely upon a power of attorney, which (unless made irrevocable (b)) may have determined by the death of the principal (c), or been suspended by his mental incapacity (d). Any assurance of a married woman's interest in real estate, executed under a power of attorney, was formerly inoperative (e). But she can now, whether an infant or not, and notwithstanding that the property to which the power relates does not belong to her as separate estate, by deed appoint an attorney on her behalf for the purpose of executing any deed or doing any other act which she might herself execute or do (f). The attorney formerly executed in the name of his principal: the fact being noticed in the attestation; but he may now execute any instrument under the power in and with his own name and signature (g). The execution of a deed by the committee of a lunatic, on his behalf, must be made in the name of the lunatic (h). In all cases where a transaction is to be carried out under a power of attorney, care should be taken to see that the power does, in fact, authorise it (i).
Vendor must convey in person.
(a) Mitchel v. Neale, (1755) 2 Ves. sen. p. 681; Noel v. Weston, (1821) 6 Mad. 50; see Anon., cited 1 Esp. 116; Richards v. Burton, (1795) ib. 269.
(b) See ss. 126 and 127 of the L. P. Act, 1925, taking the place of ss. 8 and 9 of the Conv. Act, 1882. •
(c) Wallace v. Cook, (1804) 5 Esp. 117; see Bailey v. Collet, (1854) 18 Beav. 179; Webb v. Kirby, (1856) 7 D. M. & G. 376.
(d) Duke of Beaufort v. Glynn, (1855) 25 L. T. (0. S.) 171; but see now s. 124 (2) of the L. P. Act, 1925.
(e) Graham v. Jackson, (1845) 6 Q. B. 811; 14 L. J. Q. B. 129. (f) S. 129 of the L. P. Act, 1925, re-enacting s. 40 of the Conv. Act,
1881. See Stewart v. Fletcher, (1888) 38 Ch. D. 627, 628; 57 L. J. Ch. 765. The section does not enable a married woman, by appointing an attorney, to dispense with her husband's concurrence.
In the cases - now becoming very rare - in which a married woman whose marriage took place before 1883, disposes of property her title to which accrued before that date, and which does not, under the M. W. P. Act, 1870, or under a trust in Equity, belong to her as her separate estate, the husband's concurrence is still necessary (except in certain special cases (k)), but an acknowledgment of the deed is no longer required (l).
1. Sales by married women when married before 1883 as regards property acquired before that date.
A married woman, who is not restrained from anticipation, has, in respect of her separate estate, the same power of disposition as if she were a feme sole. In Taylor v. Meads (m), Lord Westbury held that a married woman, not restrained from anticipation, has, as incident to her separate estate, and without any express power, an absolute right of disposition over her equitable fee by deed, not acknowledged under the Act, or by will; and the interposition of trustees is not necessary to give her this right (n).
Under s. 8 of the M. W. P. Act, 1870 (which applies to women married between the 9th August, 1870, and the 1st January, 1883), the rents and profits of any real estate descending upon any woman, married after the passing of the Act, as heiress of an intestate, belong (subject to the trusts of any settlement which may affect the same) to such woman for her separate use. But the Act left her unable, during coverture, to dispose of the fee by will or by deed, unless such deed was acknowledged (o).
Separate estate under M. W..p.
(g) S. 23 of L. P. Act, 1925, re-enacting s. 46 of Conv. Act, 1881.
(h) See 124 of the Lunacy Rules, 1892, and Lunacy Act, 1890, s. 120; L. P. Act, 1925, s. 22.
(i) See Hawksley v. Outram, 1892, 3 Ch. 359.
(k) See s. 91 of Fines and Recoveries Act, 1833; 8. 2 of Malin's Act, 1857; Ord. XLIV., R. S. C., r. 54b.
(l) S. 167 of L. P. Act, 1925.
(m) (1865) 4 D. J. & S. 597; and see Pride v. Bubb, (1871) 7 Ch. 64; 41 L. J. Ch. 105.
(n) Hall v. Waterhome, (1863) 5 Giff. 64.
An assignment (in cases not within the M. W. P. Acts) merely by the husband, of his wife's legal terms for years, is sufficient; but as respects her equitable chattels real, it is prudent to require that she shall join in the assignment (p).
As to her terms for years.
Under s. 91 of the Fines and Recoveries Act, where a husband is of unsound mind, or from any other cause incapable of executing a deed, or if his residence is not known, or he is in prison, or is living apart from his wife, either by mutual consent (q), or by sentence of divorce, or from any other cause, the Court may by order, upon the application (r) of the wife, dispense with the concurrence of the husband in any case in which his concurrence is required by the Act or otherwise: and all deeds, etc, by the wife, pursuant to such order, are to be executed, etc, by her, as if a feme sole, and will be as valid as if he had con-curred (s). The provision does not extend to cases in which the Lord Chancellor or the Court of Chancery is protector of a settlement in lieu of the husband. The order does not deprive the husband of the common law rights which he has acquired in the property by reason of the coverture (t).
Concurrence of husband when dispensed with.
(o) Johnson v. J., (1887) 35 Ch. D. 345.
(p) See sup. p. 11.
(q) As to what constitutes living apart by mutual consent, see Re Alice Rogers, (1865) L. R. 1 C. P. 47; 35 L. J. M. C. 71.
(r) Applications should be made in the King's Bench Division; sec Re Ellen Giles, (1894) 70 L. T. 757.
(s) For cases in which an order dispensing with the husband's concurrence has been obtained, see Ex p. Gill, (1834) 1 Bing. N. C. ,168; Ex p. Stone, (1841) 9 Dowl. 843; Ex p. Benny, (1854) 2 C. L. R. 1755; Re Bruce, (1841) 3 Sc. N. R. 592; Re Williams, (1840) 2 Sc. N. R. 120; Ex p. Yarnall, (1855) 17 C. B. 189; Ex p. Wimbush, (1855) 3 C. L. R. 340; Re Alberici, (1856) 4 W. R. 208; Re Kelsey, (1855) 16 C. B. 197; Re Mary Ann Newman, (1891) 36 Sol. Jo. 79; Re Woodall,