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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 favour 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 relation 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 ja 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. 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. Subject to this exception, *the general *153 rule is explicitly recognized in those states where the exception prevails. But in Massachusetts, even the exception is now understood not to exist and it is declared, that the husband 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.d in New York, this particular question has never been judicially settled ; it is, however, declared by statute,e that if a married wo
• Woodbury, J., in 2 N. H. Rep. 176. 405.
Rowe v. Hamilton, 3 Greenleaf's Rep. 63. e Powel v. Menson and Brimfield Manufacturing Company, 3 Mason's Rep. 347. Hall v. Savage, 4 ibid. 273. Jackson on Real Actions, 326.
• N. Y. Revised Statutes, vol. i. p. 736. sec. 117.
man 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. The substitute in favour 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.b 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. 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 *154 an officer.d In Virginia, it is laid down as the
general rule, that the wife's deed, to be valid, must
· New York Revised Statutes, vol. i. p. 758. sec. 11.
Lawrence v. Heister, 3 Harr. & Johns. Rep. 371. • 4 Mason's Rep. 45. 62.
d Manchester v. Hough, 5 Mason's Rep. 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 ex. amination 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 Caro. lina, 1751. Brown v. Starke, 3 Dana's Ken. Rep. 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. Brundage v. Poor, 2 Gill, f Johns. Rep. 1.
be executed by the husband also. 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 this view of our American law on the 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 exception. In the case of Belknap v. Lady Weyland, it was held, 2 Hen. IV. ch. 7, that the wife of a man exiled or banished, could sue alone, though that exception was regarded at that day almost as a prodigy; and some one exclaimed, ecce modo mirum, quod femina fert breve regis, non nominando virum conjunctum robore legis. Lord Coke
• Sexton v. Pickering, 3 Randolph's Rep. 468.
Leaming of Spicer's Collections, p. 235. 268. • It was adjudged in Vermont, in Sumner v. Conant, 10 Vermont Rep. 1, or Shaw's R. N. S. vol. 1, 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. M'Kean, 3 Shepley, 304.
& Cited in Co. Litt. 132. b. 133. a.; and see, also, Wilmot's case, Moore's Rep. 851, in which 18 Edw. 1., 10 Edw. JII. ch. 399, and 1 Hen. IV. ch. 1, are also cited by Lord Coke and Doddridge, J., as precedents to the same point.
seems to put the capacity of the wife to sue as a feme sole, upon the ground, that the abjuration or banishment of the husband amounted to a civil death. But if the husband be banished for a limited time only, though it be no civil death, the better opinion, is that the consequen
ces as to the wife are the same, and she can sue *155 and be sued as a feme *sole. And if the hus
band be an alien always living abroad, the reason of the exception also applies; and it was held, in the case of Deerly v. Duchess of Mazarine,b that in such a case, the wife was suable as a feme sole, in like manner as if the husband had abjured the realm. Though it was mentioned in that case, that the husband was an alien enemy, and had been divorced in France, yet, as Lord Loughborough said,c the decision did not rest on either of those grounds, but solely and properly on the ground, that the wife lived in England, on a fortune of her own, and separate from her husband, who had always resided abroad as an alien.
Again, in Walford v. The Duchess of Pienne, Lord Kenyon held, that the wife was liable as a feme sole, for goods sold, when the husband was a foreigner, residing
· Note 209 to lib. i. Co. Litt. Sparrow v. Carruthers, decided by Yates, J. and cited as good authority in 1 Term Rep. 6. i Bos. f Pull. 359. 2 Bos. f. Pull. 233. Carroll v. Blencow, 4 Esp. N. P. Rep. 27. In Robinson v. Reynolds, 1 Aiken's Ver. Rep. 174, the English cases are ably reviewed, and the conclusion seemed rather to be that the wife could only sue and be sued as a feme sole, when the husband was an alien who had always resided abroad, or was civiliter mortuus, as when he was exiled, banished for life, or had abjured the realm. In that case, the husband had voluntarily withdrawn himself from the United States, and that was held not to be sufficient; and the question was by that case still left unsettled, whether transportation or banishment by law, for a limited time only, would be sufficient. But in the English case, Ex parte Franks, 1 Moore f Scott, 1, more recently decided, the wife of a convicted felon sentenced to transportation for 14 years, but detained in confinement in the hulks, was held liable to be made a bankrupt, if she traded on her own account.
b1 Lord Raym. 147. 1 Salk Rep. 116. 61 H. Black's Rep. 349. 2 Esp. N. P. Rep. 554. Bean v. Morgan, 1 Hill's S. C. Rep. 8. S. P
abroad, and that this case came within the principle of the common law, applicable to the case of the husband abjuring the realm. If the wife was not to be personally chargeable for debts contracted under such circumstances, she would be without credit, and might starve. And if the husband was a native, instead of an alien, he thought the rule might be different, as in that case, he was to be presumed to have the *animus rever *156 tendi.a In the case of De Gaillon v. L'Aigle, the court of C. B. held the same doctrine, and that a feme covert was chargeable with her contracts, where the husband, being a foreigner, had voluntarily abandoned her, and resided abroad, and that it was for her benefit that she should be liable, in order to enable her to obtain a credit, and secure a livelihood. It was also said, in that case, that there was no instance, in which the wife was held personally liable on her contracts, on the ground of her husband residing abroad, when he was an Englishman born. In corroboration of the distinction contained in that suggestion, we may refer to the case of Boggett v. Friar, in which the K. B. held, that the plaintiff could not sue as a feme sole, for trespass to her property, when her husband, being a natural born subject, had deserted her for years before, and gone beyond sea, but without having abjured the realm, or been exiled, or banished. The case of Kay v. Duchess De Pienne, d introduced a qualification of the distinction in the former
• Franks v. Duchess of Pienne, 2 Esp. N. P. Rep. 587.
1 Bos. of Pull. 357. e 11 East, 301. The rejoinder in this case, among its averments, stated that the husband had never abjured the realm. This would imply that abjuration was known in modern practice, and yet it is admitted in the books, that abjuration or banishment upon oath taken by a felon on fleeing to a sanctuary, that he would, within forty days, leave the realm forever, has been disused since the reign of James I., and abolished. Hawk. P. C. b. ii. c. 9. sec. 44. 4 Blacks. Com. 326. The privilege of sanctuary was also abolished in France by Louis XII. Henault's Abr. Chro. tom. ii. p. 446.
à 3 Cump. Rep. 123.