ture. (d) As a general rule, the husband must be a * party *151 with the wife to her conveyance; but if she levied a fine

as a feme sole, without her husband, though it would be good as against her and her heirs, (a) the husband may avoid it during coverture, for the benefit of the wife as well as for himself. (b) Now the English law is changed as to the mode of conveyance of the wife, by the abolition of fines and recoveries, and the wife conveys by deed, with the husband's concurrence. (c) The wife may, as an attorney to another, convey an estate in the same manner as her principal could, and she may execute a power simply collateral, and, in some cases, a power coupled with an interest, without the concurrence of her husband. (d) She may also transfer a trust estate, by lease and release, as a feme sole. (e)

The conveyance of land by femes covert, under the government of the colony of New York, was, in point of fact, by deed and not by fine, and upon the simple acknowledgment of the wife before a competent officer, without private examination. Such loose modes of conveyance were mentioned in the Act of the 16th of February, 1771, and were confirmed; but it was declared, that in fu

(d) Beckwith's case, 2 Co. 57. Swanton v. Raven, 3 Atk. 105. In Durant v. Ritchie, Mason, 45, the husband and wife conveyed to A. in fee, to the use of the grantors for their joint lives, and to the survivor in fee, and the uses were held to be well raised out of the seisin of A.

(a) Bro. Abr. tit. Fines, pl. 75. Perkins, sec. 20. Shep. Touch. by Preston, p. 7. (b) Preston on Abstracts of Title, vol. i. p. 336. By the Fine and Recovery Act of 3 & 4 Wm. IV. c. 74, the court of C. B. may, whenever the husband's concurrence cannot be procured from any cause whatever, authorize the wife to convey her lands by deed without his concurrence.2 This is analogous to the provision in the Civil Code of Louisiana, art. 127, taken from the Code Napoleon, art. 218, by which, in case the husband refuses to authorize his wife to sell her paraphernal property, she may apply to the judge of the place of her domicil for authority, and which he may grant after hearing the parties.

(c) By the English statute of 3 & 4 Wm. IV. c. 74, abolishing fines and recoveries, married women are enabled, with the concurrence of their husbands, and in special cases without it, to dispose by deed, or relinquish any estate they may have, as effectually as they could do if sold, provided the deed of a married woman be acknowledged by her before a competent officer, on a previous examination, apart from her husband.

(d) Sugden on Powers, c. 3, sec. 1.
(e) Burnaby v. Griffin, 3 Vesey, 266.

Co. Litt. 52 a, 112 a.

Gridley v. Winant, 23 How. U. S. 500.

1 Scott v. Purcell, 7 Blackf. 66. But see, as to the law in New York, the F. Ins. Co. v. Bay, 4 Barb. (N. Y.) 407. Affirmed in the Court of Appeals, 4 Comst. 1. The mortgage of the wife, without the concurrence of the husband, was held to be good. * See 30 E. L. & Eq. 493; Id. 519; 30 Id. 348; 33 Id. 227, 282.

8

ture no estate of a feme covert should pass by deed, without her previous private acknowledgment before the officer, apart from her husband, that she executed the deed freely, without any fear or compulsion of her husband. (f) The deeds of femes covert, in the form used in other cases, accompanied by such an examination, and which is still required by statute, (g) have ever since been held sufficient to convey their estates, or any future contingent interest in real property, and fines and recoveries are now abolished by statute in New York. (h) If the wife resides out

*

of the state, she may unite with her husband and convey all 152 her right and interest, present and contingent, equally as if she were a feme sole, and without any such special ac

(f) It is worthy of notice, however, that in the Act of the first legislature of New York, in 1683, under the Duke of York, and which was termed "the charter of liberties," it was provided, that no estate of a feme covert should be conveyed but by deed acknowledged by her in some court of record, and she being secretly examined, whether she did it freely, without threats or compulsion of her husband. In the old colony of Plymouth, it was enacted by law, in 1646, that the acknowledgment of a sale of lands by the wife before a magistrate was sufficient. Plymouth Colony Laws, by Brigham, 1836, p. 86. In Massachusetts, under the Province Act of 9 William III., a wife, in conjunction with her husband, might convey her real estate by deed of bargain and sale, duly executed, acknowledged, and recorded, without being privately examined, whether she did it freely or not. Judge Trowbridge, said, such had been the practice in the province down to his time, and he held such conveyances, so authenticated, to be valid. See his opinion in the American Jurist, No. 27. See, also, Fowler v. Shearer, 7 Mass. 14, 19-22. The Revised Statutes of Massachusetts, of 1836, give a sanction to the joint deed of husband and wife; but though the deed will pass her real estate, it will not bind her by any covenant or estoppel.

(g) N. Y. Revised Statutes, vol. i. p. 758, sec. 10.4

(h) Ibid. vol. ii. p. 343. If, however, the party was an infant as well as a feme covert, the disability arising from infancy remains, though she execute and acknowledge the deed in the form prescribed by the statute. Bool v. Mix, 17 Wendell, 119.

The certificate of the officer must be complete according to the requisition of the statute to make a married woman's deed operative. It cannot be amended by parol testimony of the officer, after his term of office has expired. Elwood v. Klock, 13 Barb. (N. Y.) 50. Dennis v. Tarpenny, 20 Barb. (N. Y.) 371.

By a recent statute of Vermont, the separate acknowledgment of married women to deeds is no longer required. They execute deeds in the same manner as their husbands. Laws of 1851, p. 29.

The wife may be estopped from impeaching the validity of a conveyance made without her separate acknowledgment, if by her own free act she receive the consideration. Fulton v. Moore, 25 Penn. 468. See Curtiss v. Follet, 15 Barb. (N. Y.) 337.

4 In Blood v. Humphrey, 17 Barb. (N. Y.) 660, it was decided that the deed of a married woman, of her separate real estate, under the Married Women Acts of 1848, 9, need not be ac knowledged in the special manner theretofore required by the law of New York.

knowledgment. (a) Nor does a deed by the wife, in execution of a power or trust, require a private examination. (b)

This substitute of a deed for a conveyance by fine has prevailed throughout the United States, as the more simple, cheap, and convenient mode of conveyance. (c) The reason why the husband was required to join with his wife in the conveyance was, that his assent might appear upon the face of it, and to show he was present to protect her from imposition; and 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. Such a rule is founded on sound principles arising from the relations of husband and wife. But there are exceptions to the rule, and it is not universal in its application. In New Hampshire, the wife, according to statute and usage, may release her right of dower by her separate deed, executed without her husband; (d) and in Massachusetts it has been said, by a very high authority, that the wife, by her separate deed executed subsequently to a sale by her husband, and in consideration of that sale, may release her right of dower. (e) In the State of Maine the same exception has been adopted; and it is declared to be the usage or common law of New England, that a wife, in consideration of her husband's conveyance, may, by her own separate deed, release her right of dower to the grantee of her husband. (ƒ) Subject to this exception, * the *153 general rule is explicitly recognized in those states where

(a) New York Revised Statutes, vol. i. p. 578, sec. 11.

(b) Platt, J., in Jaques v. Method. Epis. Church, 17 Johns. 590. Sturges v. Corp, 13 Vesey, 190. When the wife's property settled on her is the subject of a deed, equity looks upon her as a feme sole, and as incident to the ownership in her, is her power of disposition without the concurrence of her husband. Powell v. Murray, 2 Edw. Ch.

636.

(c) Davey v. Turner, 1 Dallas, 11. Watson v. Bailey, 1 Binney, 470. Jackson v. Gilchrist, 15 Johns. 89. Fowler v. Shearer, 7 Mass. 14. Gordon v. Haywood, 2 N. Hamp. 402. Thacher r. Omans, Supplement to 3 Pick. 521.. Lithgow v. Kavenagh, 9 Mass. 172. Elmer's N. J. Dig. 83. Acts of North Carolina, 1715, 1750. The method of conveying lands by fine and common recovery was never in use in North Carolina, and the statutes of 1715 and 1750 required the wife's previous private examination before her conveyance by deed was binding. The law of the island of Jamaica allows a married woman to convey by a simple conveyance with her separate acknowledgment.

(d) Woodbury, J., in 2 N. Hamp. 176, 405.

(e) Parsons C. J., in Fowler, v. Shearer, 17 Mass. 14. (ƒ) Rowe v. Hamilton, 3 Greenl. 63.

the exception prevails. But in Massachusetts, even the exception is now understood not to exist, and it is declared that the hus band must be a party to the deed of release by the wife of her dower, and the previous conveyance by the husband is not sufficient to give the wife's deed, executed by her alone, validity. (a) 1 In New York, this particular question has never been judicially settled; it is, however, declared by statute, (b) that if a married woman execute a power by grant, the concurrence of her husband, as a party, is not requisite; and if she reside out of the state, though she may convey any real estate situated within the state, without any other acknowledgment or proof of the execution of it than that required of a feme sole, she is in that case to "join with her husband" in the conveyance. (c) The substitute in favor of a conveyance by the wife, of a deed for a fine or common recovery, was made in Maryland, by the colony statutes of 1715, 1752, and 1766; and the statute law of that state is explicit, that the husband and wife must join in the conveyance. (d). So, in Massachusetts, from the earliest periods of the colony, the wife, with the concurrence of her husband, could convey her estate in fee by deed duly acknowledged and recorded. (e) In South Carolina, Georgia, and Kentucky, the wife conveys in the same way; and in Rhode Island, Connecticut, Ohio, Indiana, Missouri, and North Carolina, (and this is no doubt the general rule,) the husband must join in the conveyance by the wife, and she must be separately examined before an officer. (ƒ) In Virginia,

(a) Powell v. Monson and Brimfield Manufacturing Company, 3 Mason, 347. Hall v. Savage, 4 Ibid. 273. Jackson on Real Actions, 326.

(b) N. Y. Revised Statutes, vol. i. p. 736, sec. 117.

(c) N. Y. Revised Statutes, vol. i. p. 758, sec. 11.
(d) Lawrence v. Heister, 3 Harr. & Johns. 371.
(e) 4 Mason, 45, 62.

(ƒ) Manchester v. Hough, 5 Mason, 67. Revised Statutes of Ohio, 1831. See, also, Ter. Law of Ohio, 1795. Chase's Statutes, vol. i. p. 186. The statute law of Ohio requires the certificate of the separate examination of the wife to her deed, to state that the contents of the deed were made known to her. Chase's Statutes, vol. iii. Act of North Carolina, 1751. Brown v. Starke, 3 Dana (Ken.) 320. Prince's Dig. of Statutes of Georgia, (2d edit. 1837,) p. 159. Revised Statutes of Indiana, 1838, p. 313. Statutes of Connecticut, 1838, p. 392. R. S. of Missouri, 1835. But in Maryland it has been held, that if the wife gives a mortgage of lands held in trust for her separate use, though it be not acknowledged as the statute requires in respect to deeds of femes covert, the deed creates a specific lien, to be enforced in equity. Brundige v. Poor, 2 Gill & Johns. 1.

1 Gerrish v. Mason, 4 Gray, 432.

it is laid * down, as the general rule, that the wife's deed, *154 to be valid, must be executed by the husband also. (a) In New Jersey, by their early colony laws, the wife might convey her estate by deed, provided she was previously and privately examined by a magistrate. (b) Upon the view of our American law on this subject, we may conclude the general rule to be, that the wife may convey by deed; that she must be privately examined; that the husband must show his concurrence to the wife's conveyance by becoming a party to the deed; and that the cases in which her deed without such concurrence is valid, are to be considered as exceptions to the general rule. (c)

(2.) To sue and be sued.

If the husband was banished, or had abjured the realm, it was an ancient and another necessary exception to the general rule of the wife's disability to contract, and she was held capable to contract, and to sue and be sued, as a feme sole. In such a case, both she and her creditors would be remediless without that

(a) Sexton v. Pickering, 3 Rand. 468.

(b) Leamig & Spicer's Collections, pp. 235, 268.

(e) It was adjudged in Vermont, in Sumner v. Conant, 10 Vermont, 1, or Shaw's R. S. N. vol. i. that a feme covert could not, either separately or jointly with her husband, execute a valid power of attorney to convey lands held in her right. The statute giving her a right to convey by deed, did not reach the case. So in Maine, the agreement of a married woman for the sale of her real estate, though made with her husband's assent, and for a valuable consideration, is void. Lane v. McKeen, 15 Maine, 304.

1 In Dewey v. Campan, 4 Mich. 565, it was held that a deed was void, in which the acknowledgment of the wife was taken by the notary through a sworn interpreter.

2 In Hunt v. Johnson, 19 N. Y. R. 279, this question was left undecided.

* In Kentucky, a wife may sue alone, if the action relates to ber separate property. Petty v. Malier, 4 B. Mon.( Ky.) 246. In New Jersey, a feme covert can make no contract, except as to her separate estate. Young v. Paul, 2 Stockt. (N. J.) 401. Under the Married Women Act of that state en action in equity will be sustained to enforce a debt incurred by a married woman in carrying on business on her own account, and the chancellor intimated that an action at law ought also to be sustained. Wheaton v. Phillips, 1 Beasley (N. J.) 221. A feme covert cannot contract, under the laws of California, so as to render her liable in a suit at law. Rowe v. Koble, 4 Cal. 285. In Wisconsin, a married woman has not the power to contract debts, so as to be liable to a personal action. Wooster v. Northrup, 5 Wis. 245. In New York, by the Code of Procedure, a married woman may sue alone when the action concerns her separate property; and when the action is between herself and husband, she may sue or be sued alone. In no case need she prosecute by a guardian or next friend. Under the New York Acts of 1860 and 1862 (ante, 130, in note), a married woman, trading on her own account, may be sued alone on a note given by her in the course of her trading. Barton v. Beer, 35 Barb. (N. Y.)78.