1 See for present law § 251 R. P L. - ED.
At the time Mrs. Treat executed the mortgage in question, she was seised of the premises in fee, capable of holding lands; and it is not pretended that she was either an idiot or a person of unsound mind, or an infant; and therefore was a person expressly authorized by the statute to alien her estate or interest in lands at her pleasure, subject only to such restrictions and regulations as were provided by law; and that as to them the certificate of the officer before whom she acknowledged the execution of the mortgages shows an exact compliance. The defendants insist upon another restriction to her alienating her estate or interest in lands; that her husband must have joined with her in the conveyance to give it the effect to pass her estate. I think that is answered by the fact that there is no provision in our laws making it necessary in order to the passing of the estate or interest of a married woman residing in this state, in lands of which she is seised or entitled to, that her husband should join with her in the conveyance.
It is said in 2 Kent's Com. 152, that the weight of authority would seem to be in favor of the existence of a general rule of law, that the husband must be a party to the conveyance or release of the wife, and that such a rule was founded on sound principles, arising from the relation of husband and wife. It was, however, admitted that there were exceptions to the rule, and that it was not universal in its application. * * *
The substitute in favor of a conveyance by the wife of a deed for a fine or common recovery was made at an early day by most, if not all, the colonial governments, by statutes which have been substantially continued to this period by legislative enactments. These statutes, in most cases, have expressly provided that the husband and wife must join in the conveyance, to have the effect of passing her present or contingent estate or interest in real estate. This is so as it respects Maryland, Lawrence v. Heister, 3 Har. & John. 371; New Hampshire, Massachusetts, Vermont, and several other States. In Vermont, the right of a married woman to convey her lands by deed is given by statute to convey " by deed of herself and baron," and making her separate examination and acknowledgment necessary, and to be certified upon the deed. Sumner v Conant., 10 Vern. Rep. 20.
It is said, 2 Kent's Com. 153, that the particular question, whether the husband must be a party to the deed of release by the wife of her dower, to give it validity, has never been judicially settled in this State. * * *
So far as judicial decision is concerned it is an open question in this State. But if we may rely upon the dicta or casual remarks of learned judges bearing upon it but not involved in the questions determined, it may be as well sustained that a feme covert can, during her coverture, part with her interest in her real estate by deed without her husband, as that she must join with him to effect
I have come to the conclusion that a feme covert residing within this State has power to convey her estate or interest in her land by her separate deed without her husband, if she acknowledge, before a proper officer, on a private examination apart from her husband, that she executed such deed freely and without any fear or compulsion of her husband, and such acknowledgment is properly certified by such officer; and therefore that the mortgages executed by Mrs. ' Treat are valid and subsisting liens on lot No. 1.
III. Her power to devise her lands.
Denio, J. in
12 New York, 415. - 1855.
An argument in favor of this will has been deduced from the course of decisions in respect to testamentary dispositions of real estate made by married women, notwithstanding the prohibition contained in the English Statute of Wills, and which we have seen was re-enacted in this State. It is familiar law that, notwithstanding this prohibition, a married woman was competent to appoint the uses of land where a power for that purpose had been reserved by or given to her by some conveyance competent to raise and to direct the execution of such use, or where land had been conveyed in trust for her benefit with a like power of appointment, and this she might do by will where the power authorized it. Wills operating by way of the appointment of a use were common before the statute had authorized a devise of lands. The use was considered as a thing distinct from the land, and might be transferred by methods which would be entirely insufficient to convey the land itself. The statute of uses, passed a few years prior to the statute of wills, was designed to put an end to this distinction by conferring upon the possessor of the use the legal seisin and ownership of the land. The manner in which the intention of the legislature was defeated by the courts forms one of the most curious chapters of the law of real estate, but it is sufficient here to mention a single feature of this system, the one which declared that future or contingent uses might be limited upon a conveyance in fee, which would remain unexecuted until they were designated and pointed out by the party to whom the power to do so was given. When the power was executed the person in whose favor the appointment was made became invested with the use, and instantly gained the legal estate by force of the statute. 3 Reeves' Hist. Eng. Law, 365, 366; 4 Id. 247, 253, 360; 1 Sugden on Powers, 12, 184.
Now, by the common law, a married woman could not dispose of her legal estate in lands without a fine or recovery, and by the statute of wills she was expressly prohibited from devising her lands; but as the instrument or attorney of another she could, both before and since the statute, convey an estate in the same manner as her principal, because the conveyance was regarded as the deed of the principal and not of the attorney. 1 Sugden on Powers, 184; Thomlinson v. Dighton, 1 P. Williams, 149. It follows that a married woman cannot in England, and could not in this country until the passage of the act respecting married women in the year 1849, make a will of her real estate, except by virtue of a power or by way of appointing a use; but where she is clothed with such a power, her coverture forms no impediment to the transaction. Peacock v. Monck, supra; Bradish v. Gibbs, 3 J. C. R. 523. It may be proper to mention, to prevent misapprehension, though the doctrine has no particular bearing upon this case, that a formal conveyance to uses, or to trustees upon trusts to be executed by virtue of a power, is unnecessary; and that marriage articles, by which the husband agrees that his intended wife may dispose of her real estate, will be enforced in the same manner as though there had been a formal conveyance. Lord Hardwicke, in Peacock v. Monck, expressed a doubt whether a simple agreement between husband and wife would be sufficient; but the cases since that time have definitely settled the question that a court of chancery, acting upon the consciences of the parties and considering that done which they had agreed to do, will sustain an appointment under the provisions of an ante-nuptial contract, simply executory in its terms. Wright v. Cadogan, 6 Brown's P. C. 156; Rippon v. Dawding, Ambler, 565; Bradish v. Gibbs, supra.