This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Sec.593. Married women.
595. Persons mentally incapacitated.
593. Married women. At common law, a married woman could not dispose of her land by her sole deed, and could convey it even in conjunction with her husband only by the levy of a fine.1 In this country a conveyance jointly with her husband, acknowledged by her apart from him was, at a quite early date, substituted for a conveyance by means of a fine,2 and this mode of conveyance is no doubt legal in all the states. In most states, moreover, at the present day, the formality of a separate acknowledgment by the wife is dispensed with, and the statutes extending her rights over her property free from any control by her husband have in some states given her power to convey her lands by a conveyance executed by her alone, without the joinder of her husband.3 Such right of sole transfer has for many years been recognized by courts of equity in connection with her equitable separate estate, the right being, however, in some jurisdictions, dependent upon
1. 1 Blackst. Comm. 444; 2 Williams, Real Prop. (18th Ed.) Id. 293, 2 Kent's Comm. 150; 288; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9.
2. Schouler, Domestic Relations, Sec. 94; Manchester v. Hough,
5 Mason, 67, Fed. Cas. No. 9,005; Fowler v. Shearer. 7 Mass. 14; Jackson v. Gilchrist, 15 Johns. (N. Y.) 89, 110.
3. 1 Stimson's Am. St. Law, Sec. 6500, where the statutory provisions are summarized
(2329) an express grant of the power of disposition in the instrument creating the estate.4
The later decisions, under the influence, more or less direct, of the statutes enlarging the powers of married women, uphold conveyances made in her behalf by a person holding her power of attorney;5 and the fact that her attorney is her husband, and that he executes the conveyance in his own right, as well as in her behalf, does not render it invalid.6
At common law the husband could dissent, and so invalidate, a transfer made to the wife.7 The modern statutes excluding the husband's rights in her property, and his control thereover, are, however, inconsistent with the existence of any such right in him.
Conveyances between husband and wife. At common law, a conveyance by a married woman directly to her husband was void, they being regarded in law as
4. 2 Story, Eq. Jur. Sec. 1392 et seq.; 2 Pomeroy, Eq. Jur. Sec.Sec. 1104, 1105; ante, Sec. 206.
5. In such cases, the power of attorney has usually been executed by the husband jointly with the wife. Williams v. Paine, 169 U. S. 55, 42 L. Ed. 658; Hull v. Glover, 126 111. 122, 18 N. E. 198; Ellison v. Bran-strator, 153 Ind. 146, 54 N. E. 453; Fulweiler v. Baugher, 15 Serg. & R. (Pa.) 45; Linton v. National Life Ins. Co., 104 Fed. 584, 44 C. C. A. 54. Except when the husband himself is appointed attorney, as to which see cases in next note. In a number of states there is a statutory provision authorizing the wife to convey by attorney. 1 Stimson's Am. St. Law, Sec. 6506. Contra. to the effect that the wife cannot convey an interest in land by attorney, see Dawson v. Shirley,
6 Blackf. (Ind.) 531; King v. Nutall, 7 Baxt. (Tenn.) 221; Batte v. McCaa, 44 Ark. 398; Earle's Adm'rs v. Earle, 20 N. J. Law, 347; Sumner v. Conant, 10 Vt. 9; Mott v. Smith, 16 Cal. 533; Louisville Bank v. Gray, 84 Ky. 565.
6. Weisbrod v. Chicago & N. W. Ry. Co., 18 Wis. 35, 86 Am. Dec. 743; Munger v. Baldridge, 41 Kan. 236, 13 Am. St. Rep. 273, 21 Pac. 159; Wronkow v. Oakley, 133 N. Y. 505, 16 L. R. A. 209, 28 Am. St. Rep. 661, 31 N. E. 521. That the husband must not only sign but also be a party to the conveyance, see Rushton v. Davis, 127 Ala. 280, 28 So. 476.
7. Co. Litt. 3a; 2 Blackst. Comm. 293; 2 Kent's Comm. 150; Schouler, Domestic Relations, Sec. 92; Melvin v. Proprietors of Locks & Canals on Merrimack but one person, and this is still quite frequently the rule, in spite of the statutes enlarging her property rights.8 Under some of the modern statutes, however, she may make such a conveyance to him as freely as to other persons.9 She might, even at common law, convey land to a third person, to be conveyed to the husband, in the absence of any coercion or undue influence on the husband's part.10
At common law, the husband could not convey to the wife, and this rule still exists in some jurisdictions.11 In others it has been changed by the modern statutes with reference to married women.12 Land could, howRiver, 16 Pick. (Mass.) 161, 167; Baxter v. Smith, 6 Binn. (Pa.) 427.
8. 1 Roper, Husb. & Wife, 53; Trawick v. Davis, 85 Ala. 342, 5 So. 83; Rico v. Brandenstein, 98 Cal. 465, 20 L. R. A. 702, 35 Am. St. Rep. 192, 33 Pac. 702; Brooks v. Kearns, 86 111. 547; Johnson v. Jouchert, 124 Ind. 105, 8 L. R. A. 795, 24 N. E. 580; Vicroy v. Vicroy, 20 Ky. Law Rep. 47, 45 S. W. 75; Preston v. Fryer, 38 Md. 221; White v. Wager, 25 N. Y. 328; Alexander v. Shalala, 228 Pa. 297, 77 Atl. 554; Riley v. Wilson, 86 Tex. 240, 24 S. W. 394; Kelley v. Dearman, 65 W. Va. 49, 63 S. E. 693. That such a conveyance passes the equitable title, see Mathy v. Mathy, 88 Ark. 56, 113 S. W. 1012.
9. Osborne v. Cooper, 113 Ala. 405, 59 Am. St. Rep. 117, 21 So. 320; Wells v. Cay wood, 3 Colo. 487; Despain v. Wagner, 163 111. 598, 45 N. E. 129; Robertson v. Robertson, 25 Iowa, 350; Savage v. Savage, 80 Me. 472, 15 Atl. 43; Glascock v. Glascock
- (Mo.) -, 117 S. W. 67.
10. Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528; Gebb v. Rose, 40 Md. 387; Jackson v. Stevens, 16 Johns. (N. Y.) 110; Jasper v. Maxwell, 16 N. C. 357; Garvin v. Ingram, 10 Rich. Eq. (S. C.) 130; Riley v. Wilson, 86 Tex. 240, 24 S. W. 394; Shepperson v. Shepperson, 2 Grat. (Va.) 501.
11. 1 Blackst. Comm. 442; 2 Kent, Comm. 129; Carrington v. Richardson, 79 Ala. 101; Loomis v. Brush, 36 Mich. 40; Wilder v. Brooks, 10 Minn. 50, 88 Am. Dec. 49; Frissell v. Rozier, 19 Mo. 448; Johnson v. Vandervort, 16 Neb. 144, 19 N. W. 461, 20 N. W. 122; Shepard v. Shepard, 7 Johns. Ch. (N. Y.) 57; Crooks v. Crooks, 34 Ohio St. 610; Coates v. Gerlach, 44 Pa. St. 43; Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. 410.
12. Booker v. Worrill, 55 Ga. 332; Merchants & Laborers' Building Ass'n v. Scanlan, 144 Ind. 11, 42 N. E. 1008; Sproul v. Atchison Nat. Bank, 22 Kan. 336; Burdeno v. Amperse, 14 Mich. 91; ever, always be transferred indirectly from the husband to the wife by making use of a third person as a conduit of title,13 and a conveyance directly from the husband to the wife, not in fraud of his creditors, and otherwise meritorious in character, has usually been upheld in equity as a settlement on the wife14
Transfer by will. Under the English Statute of Wills, as declared by a statute passed two years later, a married woman had no power to dispose of her legal interest in lands,15 nor could she so dispose at common law of her legal personal property, since this belonged to the husband.16 In most of the states she can, at the present day, dispose of her real or personal property by will without her husband's consent, as if sole,17 and she can, in all jurisdictions, so dispose of her equitable separate estate.18