I. Husband's right to dissent to devise or conveyance to wife.

Baxter V. Smith

6 BlNNEY, 427. - 1814.

Tilghman, C. J. - It was given in charge by the president of the Court of Common Pleas that the lease was void because made to a married woman, against whom no action could be supported for the non-performance of her part of the agreement. He took for granted from the evidence that the husband did not assent. This broad position took from the jury all right of considering the circumstances of the case; and it appears to me that the president went too far in saying that the lease was void, because no action lay against the woman. For granting that no action lay, yet if in fact all the stipulations on her part were complied with, both during her husband's life and afterwards, neither Finley himself, who had received the benefit of those stipulations, nor the plaintiffs who claim under his will, would be permitted to aver that the lease was void, such averment being against all equity and good conscience. A married woman may take by purchase unless her husband expressly dissents. So that the jury should have been instructed to consider whether from the direct or circumstantial evidence George Baxter, the defendant's husband, had assented to this lease, or whether the terms agreed to by his wife had been complied with, and in either case, if their opinion should be in the affirmative, the lease was valid and the plaintiffs ought not to recover. I give no opinion on the evidence, which is sent up with the record, that being a matter not proper for our consideration. On the whole, I am of opinion that there was error in the judge's charge, and therefore the judgment should be reversed, and a venire facias de novo awarded.

II. Transfers by married women.

Jewitt, J., in

Albany Fire Insurance Co. V. Bay

4 New York, 9. - 1850.

By the common law a married woman is disabled from alienating her lands by deed, either by uniting with her husband, or by executing it alone. The only mode in which she had power to transfer her title or interest in real estate was by levying a fine or suffering a common recovery, her deed being void. 1 Bl. Com. 444; 4 Cruise's Dig., tit. 32 Deed, ch. 11, § 29; Compton v. Collinson, 1 H. Bl. Rep. 345; Jackson v. Vanderheyden, 17 John. 167; Martin v. Dwelly, 6 Wend. 9; Bool v. Mix, 17 id. 128; 2 Kent's Com. 150, 1; Gillet v. Stanley, 1 Hill, 121; 5 Cruise's Dig., tit. 25, Fine, ch. 10, § 5; Constantine v. Van Winkle, 2 Hill, 240. The husband, as a general rule, was required to be a party with the wife in levying a fine for the conveyance of her lands; but she might, as a feme sole, levy a fine of her lands without her husband, and it would be valid and effectual as against her and her heirs, unless it should be avoided by the husband during the coverture, which he might do for the benefit of the wife as well as of himself. 1 Preston on Abst. 336; Com. Dig., tit. Baron and Feme, G. 88; Mary Portington's Case, 10 Coke, 43, p. 322. Lord Loughborough, in Compton v. Collinson, supra, said that it had been settled ever since the case in the 17 Ed. 3, Year Book 17 Ed. 3, 52, 78, that if a fine be levied by a feme covert without her husband, it shall bind her and her heirs, if it be not avoided by the husband; and that both Rolle and Comyns seem to intimate that the law would be the same as to a recovery. In the same case, page 345, it was said, in reference to the power of a feme covert to dispose of her lands, that it would be more accurate to state the law to be that a married woman can make no conveyance of her lands, except by fine or recovery, and that a fine levied by her alone is avoidable only by her husband.

The disability of a married woman to convey her lands by deed was not supposed to arise from want of reason, but because by her marriage she was placed under the power and protection of her husband; and it was upon that ground that the separate examination of such woman on a fine was good, because when delivered from her husband her judgment was supposed to be free. Hearle v. Greenbank,3 Atk. 712; Compton v. Collinson, supra; 2 Kent's Com. 150; Durant v. Ritchie, 4 Mason, 54. Judge Story, in the case of Durant v. Ritchie, said that fines, as a mode of conveyance, did not appear ever to have been adopted in this country; and common recoveries, though resorted to for other purposes, were not known to have been used for transfer of the estates of femes covert. Thompson, Ch. J., in Jackson v. Gilchrist, 15 John. 115, in regard to the alienation of lands by married women, remarked that the common-law modes, by fine and recovery, never were in use here.

The great object which the common law aimed at was to ascertain whether the wife, in the transfer of her estate or interest in real property, acted under fear or compulsion of her husband. In a conveyance by fine and recovery, the wife was privately examined by the court, as to her voluntary consent, which removed the general presumption of the law that she was acting under the compulsion of her husband. 2 Bl. Com. 355; 5 Cruise's Dig., tit. 35, §§ 7, 8, 9; Bool v. Mix, 17 Wend. 128.

Instead of using fines and recoveries for the conveyance of lands by married women, under the government of the colony of New York, deeds were used for that purpose, and upon their simple acknowledgments by the grantors, or proof made by a subscribing witness before a member of his majesty's council, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace, without private examination; and there were lands held under deeds of married women not acknowledged or proved even in the manner mentioned; which practices were recited in the act of the 16th of February, 1771, and such deeds were confirmed by it. As to future conveyances, it was enacted by that act, that no estate of a feme covert should thereafter pass by deed without a previous acknowledgment made by her, apart from her husband and on a private examination, that she executed the same freely, and without any fear or compulsion of her husband. 2 Kent's Com. 150; Jackson v. Gilchrist, 15 John. 109. This act prescribing the form in which the deed of a feme covert should be acknowledged in order to pass her real estate has been substantially continued in respect to married women residing in this State in the successive revisions of the laws. 2 Greenleaf, 99, § 3; 1 R. L. 369, § 3; 1 R. S. 758, § 10.1 No distinction is made, in either of the statutes referred to, between the effect of a deed executed by the husband and wife for the conveyance of her lands, where the wife resides in this State, and a deed executed by the wife without her husband for such purpose. By our usages and laws we have substituted her deed for a conveyance of lands in the place of the common-law mode, by fine. It is conceded that it must have the same effect under our laws, where the husband joins with the wife, if properly acknowledged, as a fine had, at the common law, as a conveyance, where the wife joined with her husband in levying it. And I can see no reason why her deed, properly acknowledged, where the husband does not join with her in it, should not have at least as extensive an effect as a fine had, at the common law, when levied by her alone. * * *