contract for the sale of real estate. Af- contract should show in the body of the firmed. The facts are stated in the opinion. Messrs. C. P. Black and Allan R Black, with Mr. H. H. Smith, for appel lants: Equity will not decree specific performance of a contract that is uncertain. Kimball v. Batley, 174 Mich. 544, 140 N. W. 915. The complainants' possession of the premises does not authorize a decree for them. Fox v. Pierce, 50 Mich. 500, 15 N. W. 880; Wilson v. Eggleston, 27 Mich. 257; Barrows v. Baughman, 9 Mich. 213; Warner v. Whittaker, 6 Mich. 134, 72 Am. Dec. 65; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Dec. 453; Perkins v. Perkins, 12 Mich. 456; Wurcherer v. Hewitt, 10 Mich. 453; Peckham v. Buffam, 11 Mich. 529. same that it was a joint act, made by both parties at the same time. Agricultural Bank v. Rice, 4 How. 225, 11 L. ed. 949; Harrison v. Simons, 55 Ala. 510; Gaston v. Weir, 84 Ala. 194, 4 So. 258; Stone v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65, 26 S. W. 1068; Laughlin Bros. v. Fream, 14 W. Va. 322; Kelton v. Brown, Tenn., 39 S. W. 541; Adams v. Medsker, 25 W. Va. 127; Daly v. Willis, 5 Lea, 100; Berrigan v. Fleming, 2 Lea, 274; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56; Lufkin v. Curtis, 13 Mass. 223; Peabody v. Hewett, 52 Me. 33, 83 Am. Dec. 486; Merrill v. Nelson, 18 Minn. 366, Gil. 335; Melvin v. Locks & Canals, 16 Pick. 137; Bruce v. Wood, 1 Met. 542, 35 Am. Dec. 380; Greenough v. Turner, 11 Gray, 332; Wales v. Coffin, 13 Allen, 213; Cɔx v. Wells, 7 Blackf. 410, 43 Am. Dec. 98. The option was void under the statute of in the body of the deed as grantors, and the signer, although not named particularly, falls within the class. Sloss-Sheffield Steel & I. Co. v. Lollar, 170 Ala. 239, 54 So. 272; Bowles v. Lowery, 181 Ala. 603, L.R.A. 62 So. 107. In these two cases a grantor and "his heirs" were specified in the deed as grantors, and the signer was one of grantor's children. Notwithstanding the fact that there are fewer decisions wherein the courts have taken the position of the court in AGAR V. In order to make a valid contract to convey the joint estate of husband and wife, the decided cases: Sloss-Sheffield Steel & I., Co. v. Lollar, 170 Ala. 239, 54 So. 272 (merely a recognition of the principle, see saine case infra for holding); Swindall v. Ford, 184 Ala. 137, 63 So. 651 (but it may operate as a valid contract to convey); Cordano v. Wright, 159 Cal. 610, 115 Pac. 227, Ann. Cas. 1912C, 1044; Kidd v. Bell, - Ky. 122 S. W. 232 (married woman's property; husband's deed not naming her did not convey her interest, although she signed and acknowledged the deed); Parsons v. Justice, Ky. 174 S. W. 725; LeBlanc v. Jack-STREETER than can be cited to the opposing son, Tex. Civ. App., 161 S. W. 60; rule, cases like Sterling v. Park, 13 L.R.A. Jackson v. Craigen, Tex. Civ. App. —, (N.S.) 298, and AGAR v. STREETER appear 167 S. W. 1101. See remarks of the judge to be based upon the better reasoning, and who wrote the opinion in this last case as the conclusion reached seems to be better quoted at end of this note, indicating that adapted to modern conditions. The reason the decision would probably have gone on for the early rule, i. e., need of identificathe opposite rule but for the binding author- tion, surely does not exist under the modern ity of other decisions. laws of conveyancing. The new rule amounts to nothing more than an application of a well-established principle of interpretation, i. e., the contract should be so construed as to give effect to the evident intent of the parties. When an owner of some interest in real property joins the owners of other interests in the execution of a deed or mortgage that purports to convey the property, he evidently intends that his act shall not be a mere useless ceremony, although he is not named or described in the body of the instrument. The courts, in all reason and justice, should assume that the parties intended the act of executing the instrument to have some force; and, in order to give it any force at all, it must have the same effect as if the signer's name had been written in the body of the instrument, at least to operate as an estoppel to claim title. In the ordinary case there is no middle ground between these two alternatives, i. e., either it was intended to perform a useless act, or the execution of the instrument was intended to have the same The rule here stated has been applied where one of the grantors named in a deed died without having executed it, and the deed was later signed and acknowledged by her heirs, they not being named in the body of the deed. LeBlanc v. Jackson, Tex. Civ. App. 161 S. W. 60; Jackson v. Craigen, Tex. Civ. App. -, 167 S. W. 1101. In Perlman v. Perlman, 178 Ill. App. 382, where a man signed a contract both as agent for his wife and for himself individually, wherein it was stipulated that on failure of either of the parties to perform the contract (the contract was for an exchange of lands), the party so failing should pay to the other a certain sum as liquidated damages, it was held that, on failure of the wife to perform, the husband could not be held liable either severally or jointly in any amount, his name not appearing in the body of the contract. The rule above stated, however, will not be applied where a class of persons is named frauds because the acceptance was not in writing. Ostrander, J., delivered the opinion of the court: The The bill is filed for specific performance of a contract for the sale of real estate. So far as the facts are concerned, the defense is predicated upon the denial of defendant Annie E. Streeter that she ever signed the instrument relied upon by complainants, or was a party thereto. lease and option relied upon describes the premises as a strip 40 feet wide and 8 rods long. It is so described in the bill. The decree, which recites that the trial court finds that defendant Annie E. Streeter signed the lease and option understandingly and with the intention and purpose of uniting therein as one of the lessors and optioners, orders the defendants to execute and deliver to the complainants a sufficient conveyance of the premises described in the option and lease upon payment to them of Buck v. Smith, 29 Mich. 166, 18 Am. Rep. 84; Hollingshead v. Morris, 172 Mich. 126, 41 L.R.A. (N.S.) 310, 137 N. W. 527; Mier v. Hadden, 148 Mich. 494, 118 Am. St. Rep. 586, 111 N. W. 1040, 12 Ann. Cas. 88; Wilcox v. Cline, 70 Mich. 523, 38 N. W. 555; Gustin v. Union School Dist. 94 Mich. 505, 34 Am. St. Rep. 361, 54 N. W. 156; Abell v. Munson, 18 Mich. 305, 100 Am. Dec. 165; Maynard v. Brown, 41 Mich. 298, 2 N. W. 30; Bowen v. McCarthy, 85 Mich. 26, 48 N. W. 155; Weiden v. Woodruff, 38 Mich. 130; Bronson v. Herbert, 95 Mich. 478, 55 N. W. 359; McDonald v. Bewick, 51 Mich. 79, 16 N. W. 240; Leo Austrian & Co. v. Springer, 94 Mich. 343, 34 Am. St. Rep. 350, 54 N. W. 50; Kimball v. Batley, 174 Mich. 544, 140 N. W. 915. Messrs. Brooker & Corkins for appel- the sum of $449.70, which is the amount of lees. effect, so far as the signer's title to the property is concerned, as if all the signers' names had been mentioned in the body of the instrument. But in cases where husband and wife are the signers, one not being named in the body of the deed (possibly there might be other exceptional cases involving the same principle), there may be middle ground. Whether there is middle ground or not depends upon the effect that the courts in the particular jurisdiction would give to the deed if both names had been inserted in the body of the deed. (That question is not within the scope of the present note, but was covered in note to W. F. Taylor Co. v. Sample, 28 L.R.A. (N.S.) 289. Only cases turning upon the fact that a signer's name was not inserted in the body of the deed are cited in the present note.) To exhaust the possibilities we may infer that one spouse intends, by joining in a complete conveyance of the other's separate property, to (1) merely show consent to the real grantor's conveyance; (2) to enable the real grantor to make the conveyance; (3) to bar the marital interest of the one joining: (4) to convey all interest and become bound by the covenants. (This supposition refers to a deed in which both are named, and is merely for illustration. See the note to W. F. Taylor Co. v. Sample, cited, supra, for the holdings.) Now, suppose that the name of the spouse who merely joined in the deed does not appear in the body of the instrument. Evidently, the deed could be given some effect without giving it the full effect of a complete deed, if the complete deed is to be given the effect stated as (3) and (4), supra: but if the effect of the complete deed is as stated in (1) and (2), supra, then there would appear to be no middle ground between its effect, and no effect at all. So, in jurisdictions where the effect of a complete deed by husband and was the purchase price less the amount allowed wife to the separate property of one of them is to bar the marital rights of the one joining, or to convey that one's interest, with binding covenants, the courts could consistently adopt the new rule, and yet hold that, if the one merely joining in the deed was not named in the body of the instrument, that fact would give rise to the presumption that the intention merely to give consent to or to enable the conveyance of the real grantor's property. Or, as a practical matter, it could be consistently held that such signer is in the position of one who had expressly released marital rights without joining in the granting clause. (See cases of this sort cited in the note to W. F. Taylor Co. v. Sample, cited, supra.) It will be observed that the court in AGAR V. STREETER could not well take a middle ground, for the reason that the grantors, husband and wife, were in effect joint owners. In Runyan v. Snyder, 45 Colo. 156, 100 Pac. 420, the court seemed disposed to favor the doctrine that the deed is valid without the grantor's name appearing in the body of the deed, but did not decide the question for the reason that the grantor was sufficiently named in the body of the deed, i. e., he was described as "the party of the first part," and his name was given in the warranty clause. In Jackson v. Craigen, Tex. Civ. App. -, 167 S. W. 1101 (see citation of this case, supra, for holding), the court said: "The writer is not prepared to agree to the proposition that the rule announced in Stone v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65, 26 S. W. 1068, is based upon the soundest reason, but that it is well settled in this state, and is based upon the great weight of authority, cannot be questioned." For holding in Stone v. Sledge, see citation of the case in note in 13 L.R.A. (N.S.) 299. J. W. M. to complainants as costs. The defendants | veyance of the interest of the one whose name is omitted. A considerable collection of cases has been made by counsel, and such a collection is to be found in a note to Sterling v. Park, 129 Ga. 309, 58 S. E. 828, 121 Am. St. Rep. 224, 13 L.R.A. (N.S.) 298, as reported in 12 Ann. Cas. 201, 203. See also 13 Cyc. 538; 21 Cyc. 1203. No analysis of these cases is attempted, although it may be remarked that a considerable number of them are based upon some statute requirement as to the form of the conveyance, others follow the early decision in Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56. In that case a wife signed and sealed a deed in which she joined with her husband for the purpose evidently of releasing or barring her dower; she having no other interest. She was not otherwise mentioned in the deed. The conclusion that the deed was ineffectual to bar dower was rested upon the ground that a deed cannot bind a party signing and sealing it unless it contains words expressive of an intention to be bound. appeal, insisting that the defendant Annie E. Streeter never signed the instrument, asserting also that it and what was done in respect to it is insufficient in law: (a) Because the undisputed testimony shows that they owned but 33 feet by 8 rods, and not 40 feet by 8 rods. (b) Because the option and lease on its face purports to be made by Daniel W. Streeter alone. (c) Because (and this is predicated upon the last-stated contention) the husband signed the lease in the forenoon and the wife in the afternoon, neither being present when the other executed the instrument, the contract appearing on its face to have been made by the husband alone and as his individual act; the wife could not join with him in a valid contract to sell the property by the simple act of signing her name thereto. (d) Be cause the option was void under the statute of frauds, because not accepted in writing. I am satisfied, after reading the record and after an examination of the handwriting of the defendant Annie E. Streeter and of her alleged signature to the lease and option, that she signed the lease, and that the finding and conclusion of the trial court as to this fact must stand. The giving of the option was part of a single transaction agreed upon between the parties. The tender of the money within the time limited was sufficient to make the contract otherwise evidenced by the option mutual and binding upon both parties. I have no doubt that both defendants undertook to do whatever was necessary to be done, and that complainants relied upon what defendants did as securing to them what they had bargained for. The serious question is whether the instrument relied upon as giving an option is, for that purpose, legally effective. Assuming the bargain to have been that defendants were to convey to complainants certain property, and give them a lease for five years of the strip of land in question and an option that the vendees might buy the strip at any time during the five years for $500, for which the complainants paid $4,000, the necessary legal evidence of the bargain must have been contemplated. A properly drawn and properly executed lease and option was a part of the necessary legal evidence of the bargain. The statute requisites of a deed in Michigan are that it be executed in the presence of two witnesses, who shall subscribe their names to the same as such. 3 Comp. Laws, § 8962; 4 How. Stat. 2d ed. § 10824. But as between the parties deeds not witnessed are good. Fulton v. Priddy, 123 Mich. 298, 81 Am. St. Rep. 201, 82 N. W. 65; Carpenter v. Carpenter, 128 Mich. 217, 85 N. W. 576. As to lands owned by the husband, the wife joins in his deed for the purpose of releasing dower, and if the homestead is conveyed she is a necessary party to the deed because she has a peculiar interest in the premises by reason of the family relation and must join with her husband in conveying it. In practice it is usual, in every case where a married man conveys real estate, to name his wife in the body of the deed, in which, usually, she appears to have joined in making all of the covenants of the deed. Whether the purpose is to release the homestead interest, or to bar dower, the form of the deed is usually the same. The Constitution (article 14, § 2) provides that the alienation of the homestead by the owner, if a married man, shall not be valid "without the signature of the wife to the same." A married woman may bar her dower in any estate conveyed by her husband by joining in the deed of conveyance and acknowledging the same. There are many decisions to be found which sustain the proposition that the estate of one who signs, seals, and acknowledges a deed, but is not described therein 3 Comp. Laws, § 8930, 4 How. Stat. 2d ed as grantor with apt words to indicate the estate and interest intended to be conveyed, does not pass by the deed, and it has been many times held that a joint deed executed by husband and wife, which omits the name of either as grantor, is inoperative as a con § 10922; Maynard v. Davis, 127 Mich. 571, 86 N. W. 1051. It would not be entirely safe, however, to conclude that the sig. nature and acknowledgment by the wife to a deed in which she joined with her hus band as grantor in conveying land ownes by him amounted to no more than barring | the joint covenants of both of them, the ber dower. Where a wife joined with her covenants are not hers, but are his only. husband in a warranty deed of his land, (2) If, however, it is made to appear that and the sole consideration was paid to her, the sole consideration for the deed was reshe was held jointly liable with her hus-ceived by her, and was by her husband band for a breach of the covenant against so intended, the covenants will be treated encumbrances. Arthur v. Caverly, 98 Mich. as the joint covenants of husband and wife. 82, 56 N. W. 1102. Decision was put upon The fact may be shown by evidence aliunde the ground that she was contracting with the deed. (3) While a wife may convey her respect to property to be held and owned separate interest in land as though she were as her separate estate. A married woman unmarried, if the deed she executes with who held a recorded mortgage upon her her husband is a proper and suitable inhusband's land, which they occupied as a strument for the release of her dower, or homestead, joined with him in a second for consenting to the alienation of the mortgage upon the land. In a foreclosure homestead,—such an one as she would be of the second mortgage, it was claimed expected to execute if she had no independthat, in joining with her husband in giving ent interest,- -no purpose to affect her inthe mortgage, the wife had subjected her dependent interest can be implied. It is own mortgage interest to the lien of the perceived that, as affecting the wife, the junior mortgage. It was held that the declarations in the body of the instruexecution by the wife of her husband's deed ment are usually of no significance. The of any sort implies that she executes it for significant thing is that she joins her husthe purposes for which the statute requires band in executing the deed. such execution in order to make the husband's deed effective; that if the intention is to affect any independent interest of her own, it is reasonable to expect some special provision in the instrument showing specifically in what manner and how far her separate interests are intended to be affected. Kitchell v. Mudgett, 37 Mich. 81. A wife joined with her husband in giving a warranty deed of land in which he had a life estate, and the wife had a contingent interest as heir of her husband, created by the will of the husband's ancestor, by which the life estate was also created. said: "In Arthur v. Caverly, 98 Mich. 82, 56 N. W. 1102, it was held that a married woman uniting with her husband in a warranty deed of his property is liable on the covenant when she obtains all the consideration, which, in that case, was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband's interest being simply a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument, and to prove it clearly, and to show that she had brought herself within the rule above set forth. Mutual Ben. L. Ins. Co. v. Wayne County Sav. Bank, 68 Mich. 116, 35 N. W. 853. This complainant has failed to do, and it necessarily follows that the wife's signature to the instrument was a nullity, and did not bind her subsequently acquired estate." Menard v. Campbell, 180 Mich. 583, 147 N. W. 556. It was From these cases I deduce the following rules: (1) Usually, when a wife joins in the deed of her husband of his property, the covenants in the deed being in form Neither the husband nor the wife can alone alien an estate held by them by the entireties. A deed or mortgage of such an estate executed by either alone is a nullity, before and after the death of the nonconsenting spouse. Naylor v. Minock, 96 Mich. 182, 35 Am. St. Rep. 595, 55 N. W. 664. At least, if the conveyance is to a third party. Wilkinson v. Kneeland, 125 Mich. 261, 264, 84 N. W. 142. A wife has no dower interest in such an estate, or in such interest as her husband has therein. To convey such an estate, one of them joins in the deed for the same reason that the other joins in it, and to accomplish the same purpose, namely, to alien the estate. Nothing can be accomplished except by joint action, and therefore they act jointly. Defendants stand in the position of joint grantors, who must act jointly or not at all if the estate or any interest in it is to be aliened. In the instrument relied upon as conveying an interest therein one is named as grantor; the other is not named. Both have signed it, and both signatures are witnessed by two witnesses. Following the reasoning of our own decisions, to some of which I have referred, the implication is, and it is the only reasonable one, that the wife, one of the joint owners, signed the deed in order to make the instrument effective. We are permitted to adopt, and I think should adopt, the rule that in such a case the failure to name the wife as grantor in the body of the deed or other instrument of conveyance is not fatal. I quote and approve the language and conclusion of the Georgia supreme court in Sterling v. Park, supra. After referring to a large number of authorities, it is said (page 312 of 1 Ga.) "Most of these deci in this connection, Ball v. Wallace, 32 Ga. 170." See also Sloss-Sheffield Steel & I. Co. v. Lollar, 170 Ala. 239, 54 So. 272. dano v. Wright, 159 Cal. 610, 115 Pac. 227, Ann. Cas. 1912C, 1044, and cases cited in opinion. I conclude that the instrument creating the option was not, for that purpose, invalid. It is singular that there should be a dispute, at least a failure to agree, about the evidence of title does not appear to have been produced by either party. Complainants can gain no title through a deed from defendants, to land defendants do not own. The bill is framed according to no theory of an abatement of the purchase price to correspond with the quantity of land defendants own. The evidence upon the subject, aside from the oral statements of defendants, or one of them, is found in the lease and option, in which defendants assert title to 40 feet. If the defendants own but 33 feet, there ought not to be two suits to in one. However, as the record stands. there appears to be no warrant for modifying the decree. sions were based upon the ground that a wife could not relinquish her right of dower unless the conveyance contained apt words expressive of such intent. But the weakness of the reasoning, in our judgment, is It is probable that if the weight of authe clinging to an ancient rule of the com-thority depends upon the number of decimon law which grew out of the environ- sions, old and new, my conclusion is opment and civilization of the sixteenth cen-posed to the weight of authority. See Cortury, when such conditions do not exist in our own civilization. As was very pertinently said by Woodbury, J., in Elliot v. Sleeper, 2 N. H. 525, decided as early as 1823: 'Here, however, a deed must by statute be attested; and since seals have ceased to be distinguished by peculiar devices, and education has become more gen-width of the strip defendants own. Record erally diffused, signing would seem to be proper and indispensable. When a deed is signed, the utility of naming the grantor in the premises or any part of the body of the instrument appears in a great measure superseded; for "know," says Perkins, § 36, "that the name of the grantor is not put in the deed to any other intent but to make certainty of the grantor." Bacon, Abr. "Grant" C. This certainty is attained whenever a person signs, seals, acknowledges, and delivers an instrument as his deed, though no mention whatever be made of him in the body of it; because he can per-adjust differences which should be settled form these acts for no other possible purpose than to make the deed his own. In a deed poll, like that under consideration, where only the grantor speaks or signs or covenants, there is still less danger of mistake and uncertainty concerning the party bound, then in deeds indented.' In agreement with the New Hampshire case are Armstrong v. Stovall, 26 Miss. 275; Ingoldsby v. Juan, 12 Cal. 564; Hrouska v. Janke, 66 Wis. 252, 28 N. W. 166. Text writers now very generally discard as unsound the proposition that the grantor should be named as such in the deed, and approve those cases which hold that the conveyance is operative when signed by the grantor, though his name be omitted from the body of the instrument. 3 Washb. Real Prop. 2120; 1 Devlin, Deeds, § 204. The requisites of a deed under the Code are that it must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser or someone for him, and be made on a valuable or good consideration. No prescribed form is essential to the validity of a deed, and the instrument will be deemed sufficient if it make known the transaction. Civil Code, §§ 3599, 3602. We think that the deed under discussion measures up to these statutory essentials, and is effective as a conveyance of the defendant and her coremainderman, though their names are not mentioned in the body of the instrument. See, It is therefore affirmed, with costs to appellees. MINNESOTA SUPREME COURT. STATE OF MINNESOTA V. CHARLES A. LESTER. (127 Minn. 282, 149 N. W. 297.) Homicide negligence of physician. Headnotes by PHILIP E. BROWN, J. Note. Homicide: negligence of physi cian. The general question of negligent homicide is discussed in a note to Johnson v. State, 61 L.R.A. 277, and the reader is referred to pages 287-290 of that note for the earlier cases upon negligence of a physician as homicide. For civil liability of a physician or surgeon where foreign material is left in an incision, see notes in 27 L.R.A. (N.S.) 1174, and 46 L.R.A. (N.S.) 611. And cases involving the civil liability of a physician for injuries resulting from elec |