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contract for the sale of real estate. Af., contract should show in the body of the firmed.

same that it was a joint act, made by both The facts are stated in the opinion. parties at the same time. Messrs. C. P. Black and Allan R

Agricultural Bank v. Rice, 4 How. 225, Black, with Mr. H. H. Smith, for appel. 11 L. ed. 949; Harrison v. Simons, 55 Ala. lants:

510; Gaston v. Weir, 84 Ala. 194, 4 So. Equity will not decree specific perform- 258; Stone v. Sledge, 87 Tex. 49, 47 Am. ance of a contract that is uncertain.

St. Rep. 65, 26 S. W. 1068; Laughlin Bros. Kimball v. Batley, 174 Mich. 544, 140 N. v. Fream, 14 W. Va. 322; Kelton v. Brown, W. 915.

Tenn. 39 S. W. 541; Adams v. MedThe complainants' possession of the premises does not authorize a decree for sker, 25 W. Va. 127; Daly v. Willis, 5 Lea, them.

100; Berrigan v. Fleming, 2 Lea, 274; CatFox v. Pierce, 50 Mich. 500, 15 N. w. lin v. Ware, 9 Mass. 218, 6 Am. Dec. 56; 880; Wilson v. Eggleston, 27 Mich. 257; Lufkin v. Curtis, 13 Mass. 223; Peabody v. Barrows v. Baughman, 9 Mich. 213; Warner Hewett, 52 Me. 33, 83 Am. Dec. 486; Merv. Whittaker, 6 Mich. 134, 72 Am. Dec. 65; rill v. Nelson, 18 Minn. 366, Gil. 335; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Melvin v. Locks & Canals, 16 Pick. 137.; Dec. 453; Perkins v. Perkins, 12 Mich. 456; Bruce v. Wood, 1 Met. 542, 35 Am. Dec. Wurcherer v. Hewitt, 10 Mich. 453; Peck- 380; Greenough v. Turner, 11 Gray, 332; ham v. Buffam, 11 Mich. 529.

Wales v. Collin, 13 Allen, 213; Cox v. Wells, In order to make a valid contract to con- 7 Blackf. 410, 43 Am. Dec. 98. vey the joint estate of husband and wife, the The option was void under the statute of decided cases: Sloss-Shellield Steel & I., in the body of the deed as grantors, and Co. v. Lollar, 170 Ala. 239, 54 So. 272 (mere. the signer, although not named particularly, ly a recognition of the principle, see saine falls within the class. Sloss-Sheffield Steel case infra for holding); Swindall v. Ford, & l. Co. v. Lollar, 170 Ala. 239, 54 So, 272; 184 Ala. 137, 63 So. 651 (but it may oper-Bowles v. Lowery, 181 Ala. 603, L.R.A. -, ate as a valid contract to convey); Cordano | 62 So. 107. In these two cases a grantor v. Wright, 159 Cal. 610, 115 Pac. 227, Ann. and “his heirs" were specified in the deed Cas. 1912C, 1044; Kidd v. Bell, Ky. as grantors, and the signer was

one of 122 S. W. 232 (married womau's property; / grantor's children. husband's deed not naming her did not con- Notwithstanding the fact that there are vey her interest, although she signed and fewer decisions wherein the courts have acknowledged the deed); Parsons v. Justice, taken the position of the court in Agar v.

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 The rule here stated has been applied to nothing more than an application of a where one of the grantors named in a deed well-established principle of interpretation, died without having executed it, and the i. e., the contract should be so construed deed was later signed and acknowledged by as to give effect to the evident intent of her heirs, they not being named in the body the parties. When an owner of some inof the deed. LeBlanc v. Jackson, Tex. terest in real property joins the owners of Civ. App. 161 S. W. 60; Jackson v. other interests in the execution of a deed Craigen, Tex. Civ. App. 167 S. W. or mortgage that purports to convey the 1101.

property, he evidently intends that his act In Perlman v. Perlman, 178 Ill. App. 382, shall not be a mere useless ceremony, alwhere a man signed a contract both as agent though he is not named or described in the for his wife and for himself individually, body of the instrument. The courts, in all wherein it was stipulated that on failure reason and justice, should assume that the of either of the parties to perform the con parties intended the act of executing the tract (the contract was for an exchange of instrument to have some force; and, in lands), the party so failing should pay to order to give it any force at all, it must the other a certain sum as liquidated dam- have the same effect as if the signer's name ages, it was held that, on failure of the had been written in the body of the instruwife to perform, the husband could not be ment, at least to operate as an estoppel to held liable either severally or jointly in any claim title. In the ordinary case there is amount, his name not appearing in the body no middle ground between these two alterof the contract.

natives, i. e., either it was intended to perThe rule above stated, however, will not form a useless act, or the execution of the be applied where a class of persons is named l instrument was intended to have the same



frauds because the acceptance was not in Ostrander, J., delivered the opinion of writing.

the court: Buck v. Smith, 29 Mich. 166, 18 Am. Rep. The bill is filed for specific performance 84; Hollingshead v. Morris, 172 Mich. 126, of a contract for the sale of real estate. 41 L.R.A. (N.S.) 310, 137 N. W. 527; Mier So far as the facts are concerned, the dev. Hadden, 148 Mich. 494, 118 Am. St. Rep. fense is predicated upon the denial of de586, 111 N. W. 1040, 12 Ann. Cas. 88; fendant Annie E. Streeter that she ever Wilcox v. Cline, 70 Mich. 523, 38 N. w. signed the instrument relied upon by com

The 555; Gustin v. Union School Dist. 94 Mich. plainants, or a party thereto. 505, 34 Am. St. Rep. 361, 54 N. W. 156;

lease and option relied upon describes the Abell v. Munson, 18 Mich. 305, 100 Am. premises as a strip 40 feet wide and 8 rodis

long. It is so described in the bill. The Dec. 165; Maynard v. Brown, 41 Mich. 298, decree, which recites that the trial court 2 X. W. 30; Bowen v. Met arthy, 85 Mieh. finds that defendant Annie E. Streeter 26, 48 N. W. 155; Weiden v. Woodruff, 38 signed the lease and option understandMich. 130; Bronson v. Herbert, 95 Mich. ingly and with the intention and purpose 478, 55 N. W. 359; McDonald v. Bewick, of uniting therein as one of the lessors and 51 Mich. 79, 16 N. W. 240; Leo Austrian optioners, orders the defendants to execute & Co. v. Springer, 94 Mich. 343, 34 Am. St. and deliver to the complainants a sufficient Rep. 350, 54 N. W. 50; Kimball v. Batley, conveyance of the premises described in the 174 Mich. 544, 140 N. W. 915.

option and lease upon payment to them of Messrs. Brooker & Corkins for appel- the sum of $449.70, which is the amount of lees.

the purchase price less the amount allowed effect, so far as the signer's title to the wife to the separate property of one of property is concerned, as if all the signers' them is to bar the marital rights of the names had been mentioned in the body of one joining, or to convey that one's interest, the instrument.

with binding covenants, the ourts could But in cases where husband and wife are consistently adopt the new rule, and yet the signers, one not being named in the hold that, if the one merely joining in the body of the deed (possibly there might be deed was not named in the body of the other exceptional cases involving the same instrument, that fact would give rise to principle), there may be middle ground. the presumption that the intention Whether there is middle ground or not merely to give consent to or to enable the depends upon the effect that the courts in conveyance of the real grantor's property. the particular jurisdiction would give to Or, as a practical matter, it could be conthe deed if both names had been inserted sistently held that such signer is in the in the body of the deed. (That question position of one who had expressly released is not within the scope of the present note, marital rights without joining in the grantbut was covered in note to W. F. Taylor Co. ing clause. (See cases of this sort cited in v. Sample, 28 L.R.A. (N.S.) 289. Only cases the note to W. F. Taylor Co. v. Sample, turning upon the fact that a signer's name cited, supra.) It will be observed that the was not inserted in the body of the deed court in AGAR V. STREETER could not well are cited in the present note. ) To exhaust take a middle ground, for the reason that the possibilities we may infer that one the grantors, husband and wife, were in spouse intends, by joining in a complete effect joint owners. conveyance of the other's separate property, In Runyan v. Snyder, 45 Colo. 156, 100 to (1) merely show consent to the real Pac. 420, the court seemed disposed to favor grantor's conveyance; (2) to enable the the doctrine that the deed is valid without real grantor to make the conveyance; (3) the grantor's name appearing in the body to bar the marital interest of the one join of the deed, but did not decide the question ing: (4) to convey all interest and become for the reason that the grantor was sufbound by the covenants. (This supposition | ficiently named in the body of the deed, refers to a deed in which both are named, i, e., he was described as “the party of the and is merely for illustration. See the note first part," and his name was given in the to W. F. Taylor Co. v. Sample, cited, supra, warranty clause. for the holdings.) Now, suppose that the In Jackson v. Craigen, Tex. Civ. App. name of the spouse who merely joined in 167 S. W. 1101 (see citation of this case, the deed does not appear in the body of supra, for holding), the court said: “The the instrument. Evidently, the deed could writer is not prepared to agree to the propbe given some effect without giving it the osition that the rule announced in Stone full effect of a complete deed, if the complete v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65, deed is to be given the effect stated as (3) 26 S. W. 1068, is based upon the soundest and (4), supra; but if the effect of the reason, but that it is well settled in this complete deed is as stated in (1) and (2), state, and is based upon the great weight supra, then there would appear to be no of authority, cannot be questioned." For middle ground between its effect, and no holding in Stone v. Sledge, see citation of fl'ect at all. So, in jurisdictions where the the case in note in 13 L.R.A. (X.S.) 299. effect of a complete deed by husband and

J. W. M.

to complainants as costs. The defendants | veyance of the interest of the one whose appeal, insisting that the defendant Annic name is omitted. A considerable collection E. Streeter never signed the instrument, as- of cases has been made by counsel, and such serting also that it and what was done in a collection is to be found in a note to Sterrespect to it is insufficient in law: (a) Be- ling v. Park, 129 Ga. 309, 58 S. E. 828, 121 cause the undisputed testimony shows that Am. St. Rep. 224, 13 L.R.A. (V.S.) 298, as they owned but 33 feet by 8 rods, and not reported in 12 Ann. Cas. 201, 203. See 40 feet by 8 rods. (b) Because the option also 13 Cyc. 538; 21 Cyc. 1203. No analyand lease on its face purports to be made sis of these cases is attempted, although it by Daniel W. Streeter alone. (c) Because may be remarked that a considerable num(and this is predicated upon the last-stated ber of them are based upon some statute contention) the husband signed the lease in requirement as to the form of the conveythe forenoon and the wife in the afternoon, ance, others follow the early decision in neither being present when the other exe. Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56. cuted the instrument, the contract appear. In that case a wife signed and sealed a deed ing on its face to have been made by the in which she joined with her husband for husband alone and as his individual act; the purpose evidently of releasing or barthe wife could not join with him in a valid ring her dower; she having no other intercontract to sell the property by the simple est. She was not otherwise mentioned in act of signing her name thereto. (d) Be the deed. The conclusion that the deed was cause the option was void under the statute ineffectual to bar dower was rested upon of frauds, because not accepted in writing the ground that a deed cannot bind a party

I am satisfied, after reading the record signing and sealing it unless it contains and after an examination of the handwrit. words expressive of an intention to be ing of the defendant Annie E. Streeter and bound. of her alleged signature to the lease and The statute requisites of a deed in Michioption, that she signed the lease, and that gan are that it be executed in the presence the finding and conclusion of the trial court of two witnesses, who shall subscribe their as to this fact must stand. The giving of names to the same as such. 3 Comp. Laws, the option was part of a single transaction $ 8962; 4 Ilow. Stat. 2d ed. § 10824. But agreed upon between the parties. The ten-as between the parties deeds not witnessed der of the money within the time limited are good. Fulton v. Priddy, 123 Mich. 298, was sufficient to make the contract other. 81 Am. St. Rep. 201, 82 N. W. 65; Carpenwise evidenced by the option mutual and ter v. Carpenter, 126 Mich. 217, 85 N. W. binding upon both parties. I have no doubt 576. As to lands owned by the husband, that both defendants undertook to do what the wife joins in his deed for the purpose of ever was necessary to be done, and that releasing dower, and if the homestead is complainants relied upon what defendants conveyed she is a necessary party to the did as securing to them what they had bar- deed because she has peculiar interest gained for. The serious question is whether in the premises by reason of the family the instrument relied upon as giving an relation and must join with her husband in option is, for that purpose, legally effective. conveying it. In practice it is usual, in Assuming the bargain to have been that every case where a married man conveys defendants were to convey to complainants real estate, to name his wife in the body certain property, and give them a lease for of the deed, in which, usually, she appears five years of the strip of land in question to have joined in making all of the coveand an option that the vendees might buy nants of the deed. Whether the purpose the strip at any time during the five years is to release the homestead interest, or to for $500, for which the complainants paid bar dower, the form of the deed is usually $4,000, the necessary legal evidence of the the same. The Constitution (article 14 bargain must have been contemplated. A § 2) provides that the alienation of the properly drawn and properly executed lease homestead by the owner, if a married man, and option was a part of the necessary shall not be valid "without the signature legal evidence of the bargain.

of the wife to the same.” A married wom. There are many decisions to be found an may bar her dower in any estate con which sustain the proposition that the es. veyed by her husband by joining in the deed tate of one who signs, seals, and acknowl- of conveyance and acknowledging the same. edges a deed, but is not described therein 3 Comp. Laws, § 8930, 4 How. Stat. 2d ed as grantor with apt words to indicate the $ 10922; Maynard v. Davis, 127 Vich. 571, estate and interest intended to be conveyed, 86 N. W. 1051. It would not be entirely does not pass by the deed, and it has been safe, however, to conclude that the sig. many times held that a joint deed executed nature and acknowledgment by the wife to by husband and wife, which omits the name a deed in which she joined with her hus. of either as grantor, is inoperative as a con-'band as grantor in conveying land owned 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 hus- Neither the husband nor the wife can band's deed effective; that if the intention alone alien an estate held by them by the is to affect any independent interest of her entireties. A deed or mortgage of such an own, it is reasonable to expect some special estate executed by either alone is a nullity, provision in the instrument showing spe- i before and after the death of the nonconcifically in what manner and how far her senting spouse. Naylor v. Minock, 96 Mich. separate interests are intended to be affect- 182, 35 Am. St. Rep. 595, 55 N. W. 664. ed. Kitchell v. Mudgett, 37 Mich. 81. A | At least, if the conveyance is to a third wife joined with her husband in giving a party. Wilkinson v. Kneeland, 125 Mich. warranty deed of land in which he had a | 261, 264, 84 N. W. 142. A wife has no life estate, and the wife had a contingent dower interest in such an estate, or in such interest as heir of her husband, created by interest as her husband has therein. To the will of the husband's ancestor, by which convey such an estate, one of them joins the life estate was also created.

It was

in the deed for the same reason that the said: “In Arthur v. Caverly, 98 Mich. 82, other joins in it, and to accomplish the 56 N. W. 1102, it was held that a married same purpose, namely, to alien the estate. woman uniting with her husband in a war- Nothing can be accomplished except by ranty deed of his property is liable on the joint action, and therefore they act jointly. covenant when she obtains all the consid- Defendants stand in the position of joint eration, which, in that case, was a convey- grantors, who must act jointly or not at ance to her of other property. The record all if the estate or any interest in it is to in the instant case does not disclose for be aliened. In the instrument relied upon what purpose the wife signed the deed, as as conveying an interest therein one is she had no dower interest; the husband's named as grantor; the other is not named. interest being simply a life estate. The Both have signed it, and both signatures are burden was upon the complainant to show witnessed by two witnesses. Following the for what purpose she joined in the instru- reasoning of our own decisions, to some of ment, and to prove it clearly, and to show which I have referred, the implication is, that she had brought herself within the and it is the only reasonable one, that the rule above set forth. Mutual Ben. L. Ins. wife, one of the joint owners, signed the Co. v. Wayne County Sav. Bank, 68 Mich. deed in order to make the instrument effec116, 35 N. W. 853. This complainant has tive. We are permitted to adopt, and I failed to do, and it necessarily follows that think should adopt, the rule that in such the wife's signature to the instrument was case the failure to name the wife as a nullity, and did not bind her subsequently grantor in the body of the deed or other acquired estate.” Menard v. Campbell, 180 instrument of conveyance is not fatal. I Mich. 583, 147 N. W. 556.

quote and approve the language and conFrom these cases I deduce the following clusion of the Georgia supreme court in rules: (1) Usually, when a wife joins in Sterling v. Park, supra. After referring to the deed of her husband of his property, a large number of authorities, it is said the covenants in the deed being in form (page 312 of 1% Ga.) “Most of these deci


sions were based upon the ground that a in this connection, Ball v. Wallace, 32 Ga. wife could not relinquish her right of dower 170." unless the conveyance contained apt words See also Sloss-Sheffield Steel & I. Co. v. expressive of such intent. But the weak- Lollar, 170 Ala. 239, 54 So. 272. ness 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 dano v. Wright, 159 Cal. 610, 115 Pac. 227, our own civilization. As was very perti- Ann. Cas. 1912C, 1044, and cases cited in nently said by Woodbury, J., in Elliot v. opinion. I conclude that the instrument Sleeper, 2 N. H. 525, decided as early as creating the option was not, for that pur1823: Here, however, a deed must by pose, invalid. statute be attested; and since seals have It is singular that there should be a disceased to be distinguished by peculiar de pute, at least a failure to agree, about the vices, and education has become more gen- / width of the strip defendants own. Record erally diffused, signing would seem to be evidence of title does not appear to have proper and indispensable. When a deed is been produced by either party. Complainsigned, the utility of naming the grantor ants can gain no title through a deed from in the premises or any part of the body of defendants, to land defendants do not own. the instrument appears in a great measure The bill is framed according to no theory superseded; for "know,” says Perkins, 8 of an abatement of the purchase price to 36, “that the name of the grantor is not correspond with the quantity of land deput in the deed to any other intent but to fendants own. The evidence upon the submake certainty of the grantor.” Bacon, jeet, aside from the oral statements of deAbr. “Grant” C. This certainty is attained fendants, or one of them, is found in the whenever a person signs, seals, acknowl. lease and option, in which defendants assert edges, and delivers an instrument as his title to 40 feet. If the defendants own but deed, though no mention whatever be made 33 feet, there ought not to be two suits to of him in the body of it; because he can per-adjust differences which should be settled form these acts for no other possible pur

in one. However, as the record stands. pose than to make the deed his own. In a there appears to be no warrant for modideed poll, like that under consideration, fying the decree. where only the grantor speaks or signs or It is therefore affirmed, with costs to apcovenants, there is still less danger of mis- pellees. take and uncertainty concerning the party bound, then in deeds indented.' In agreement with the New Hampshire case Armstrong v. Stovall, 26 Miss. 275; In

MINNESOTA SUPREME COURT. goldsby v. Juan, 12 Cal. 564; Hrouska v.

STATE OF MINNESOTA Janke, 66 Wis. 252, 28 N. W. 166. Text writers now very generally discard as un

CHARLES A. LESTER. sound the proposition that the grantor should be named as such in the deed, and

(127 Minn. 282, 149 N. W. 297.) approve those cases which hold that the conveyance is operative when signed by the Homicide negligence of physician. grantor, though his name be omitted from 1. A medical man, or a person assuming the body of the instrument. 3 Washb. Real to act as such, will be held guilty of “culpaProp. 2120; 1 Devlin, Deeds, $ 204. The

ble negligence,” within the meaning of Gen. requisites of a deed under the Code are that

Headnotes by Philip E. BROWN, J. it must be in writing, signed by the maker, attested by at least two witnesses, and Note. II omicide: negligence of physidelivered to the purchaser or someone for

cian, him, and be made on a valuable or good

The general question of negligent homiconsideration. No prescribed form is es-cide is discussed in a note to Johnson v. sential to the validity of a deed, and the State, 61 L.R.A. 277, and the reader is reinstrument will be deemed suficient if it ferred to pages 287–290 of that note for make known the transaction. Civil Code, the earlier cases upon negligence of a phy. $$ 3599, 3602. We think that the deed sician as homicide. under discussion measures up to these stat. ,

For civil liability of a physician or sur.

geon where foreign material is left in an utory essentials, and is effective as a con

incision, see notes in 27 L.R.A.( N.S.) 1174, veyance of the defendant and her coremain- and 46'L.R.A.(N.S.) 611. derman, though their names are not men

And cases involving the civil liability of tioned in the body of the instrument. See,'a physician for injuries resulting from elec



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