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but if she levy a fine as a feme sole, without her husband, it will be good as against her and her heirs," though the husband may avoid it during coverture, for the benefit of the wife, as well as for himself. The wife, however, 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 coup ed with an interest, without the concurrence of her husband.c She may also transfer a trust estate, by lease and release, as a feme sole.d
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 a 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 future, no estate of a feme covert should pass by deed without her previous private acknowledgment before the officer, that she kecuted the deed freely without any fear or compulsion her husband. The deeds of femes covert, in therm used in other cases, accompanied by such an examination, have ever since been held sufficient to convey their estates, or any future contingent interest in real property. If the wife resides with her husband,
out of the state, she may unite
and convey all her right and interest, present and contingent, equally as if she were a feme sole, and without any such special acknowledgment.
This substitute of a deed for a conveyance by fine, has prevailed throughout the United States, as the
a Bro. Abr. tit. Fines, pl. 75. Compton v. Perkins, sect. 20
b Preston on Abstracts of Tille, vol. i. 336.
e Sugden on Powers, 148.
d Burnaby v. Griffin, 3 Vesey, 266.
e Laws of N. Y. sess. 36. ch. 97. s. 2.
more simple, cheap, and convenient mode of convey. ance. 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. His concurrence in the conveyance is expressly made necessary, in this state, when a non-resident wife conveys without acknowledgment; and though her release of dower may under certain circumstances, be good if duly executed by her alone, her conveyance of any other interest, without her husband, would, at least, be very imperfect, since his interest in her estate would not be affected. Whether the deed would be absolutely void without her husband being a party, seems not to be definitively declared, but to be left in doubt, by our American cases. No deed of a wife will operate as an estoppel to her subsequently acquired interest in the land; but whether that doctrine, as declared in this state, will apply to non-resident femes covert, may be doubted, since the statute says, that they shall be barred, by their deeds, of all right and title, "in like manner" as if they were femes sole.
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 her and her creditors would be remediless without that exception. In the case of Belknap
a Davey v. Turner, 1 Dallas, 11. Watson v. Bailey, 1 Binney, 470, Jackson v. Gilchrist, 15 Johns. Rep. 89. Fowler v. Shearer, 7 Mass. Rep. 14. Gordon v. Haywood, 2 N, H. Rep. 402. Thatcher v. Omans, Supplement to 3 Pickering, 521. Lithgow v. Kavenagh, 9 Mass. Rep. 172.
b7 Mass. Rep. 21. 2 N. H. Rep. 405. In Rowe v. Hamilton, 3 Greenleaf, 63. the Chief Justice says, that the wife cannot convey her own lands to a stranger, unless the husband joins with her in the deed, c Jackson v. Vanderheyden, 17 Johns. Rep, 167.
v. Lady Weyland,a it was held, 2 Hen. IV. 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 fœmina fert breve regis, non nominando virum conjunctum robore legis, Lord Coke 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 consequences as to the wife are the same, and she can sue and be sued asa feme sole. And if the husband be an alien living abroad, the reason of the exception also applies; and it was held in the case of Deerly v. Duchess of Mazarine,c 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,d 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,e Lord Kenyon held, that the wife was liable as a feme sole, for goods sold, when the husband was a foreigner, residing abroad, and that this case came within the principle of the common law, applicable to the case of the husband abjuring the realm.
a Cited in Co. Litt. 132. b. 133. a.
b Note 209, to lib. 2 Co. Litt. Sparrow v. Carruthers, decided by Yates, J. and cited as a good authority in 1 Term Rep. 6. 1 Bos. & Pul. 359. 2 Bos. & Pul. 233. Carrol v. Blencow, 4 Esp. N. P. Rep. 27. c1 Ld. Raym 147. 1 Salk. 116.
d H. Blacks. 349.
e 2 Esp. N. P. Rep. 554.
If the wife was not to be personally chargeable for debts contracted under such circumstances, she would be without credit, and might starve. If, however, 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 revertendi ;a and 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. Frier, 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.
This is the extent of the English authorities on this subject, and it is easy to percieve that there might be most distressing cases under them; for though the husband be not an alien, yet if he deserts his wife, and resides abroad permanently, the necessity that the wife should be competent to obtain credit, and acquire and recover property, and act as a feme sole, exists in full force. It is probable, that the distinction between husbands who are aliens, and who are not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction. But on this general subject of the liability of
a Franks v. Duchess of Pienne, 2 Esp.. N. P. Rep. 587.
the wife, in case of the absence of the husband, it is still an unsettled point, and attended with difficulty and embarrassment, whether the principle that she is to be deemed a feme sole, is to stop short at a matter of contract, or to go to the length of considering her a feme sole, for all business purposes.
If the wife be divorced a mensa et thoro, according to a very common practice in this state, can she then suc and be sued as a feme sole? It is so stated in one of the elementary books ; but I do not find any adjudged case to the point. I should apprehend, that she could sue alone for any injury to her character, or person, or separate property. She will have property settled upon her, in such case, by the decree of separation, and she will be entitled to acquire property by her own industry; and it would seem to be indispensable that she should have a capacity to act for herself, and the means to protect herself, since she is withdrawn from the dominion and protection of her husband. They are separated by a judicial sentence; and in such a case, Lord Loughborough has said, that she could be sued without her husband.
In Hatchett v. Baddeley, 16 Geo. III., the C. B. held, that a feme cavert eloping from her husband, and running in debt, could not be sued alone, for that no act of the wife could make her liable to be sued alone. If she could be sued, she could sue, acquire property, and release actions, and this would overturn first principles. In no case, said one of the judges, can a feme covert be sued alone, except in the known excepted cases of abjuration or exile, where the husband is considered as dead, and the woman as a widow. It was afterwards held by the same court, in Lean v. Schutz, 18 Geo. III.,d that if the wife had even a separate maintenance, and lived apart from her husband, she could
a Bacon, tit. Baron and Feme, M.
b 2 Vesey, Jun. 145.
t 2 W. B'acks. 1079.
d 2 Blacks. Rep. 1195,