Burdeno v. Amperse

• Decision Date: 06 January 1866
• Citation: 14 Mich. 91
• Court: Michigan Supreme Court
• Parties: Augustus D. Burdeno v. Marinus Amperse

14 Mich. 91

Augustus D. Burdeno v. Marinus Amperse

Supreme Court of Michigan

January 6, 1866

Heard October 13, 1865

Error to Wayne circuit.

This was an action of trespass quare clausum fregit, commenced before a justice of the peace. The defendant gave notice under the statute of title to real estate, and the cause was certified to the circuit court. On the trial, the defendants offered in evidence a deed of the premises from the plaintiff to Victoria Burdeno, his wife, to the admission of which the plaintiff objected on account of the relation between the parties. The court sustained the objection, and the defendant excepted.

Judgment reversed, with costs, and a new trial granted.

Ward & Palmer, for plaintiff in error.

Larned & Hebden, and Wm. Gray, for defendant in error.

Campbell J. Christiancy and Cooley, JJ. concurred.

OPINION

Campbell J.:

Burdeno sued plaintiffs in error in trespass for alleged wrongful acts upon his freehold, being land covered by water. The suit was for treble damages to Burdeno, as proprietor of the land, the statutory action not lying for mere possession: Achey v. Hull, 7 Mich. 423. Defendants offered to show that Burdeno had, in September, 1861, conveyed the property by deed to his wife, Victoria Burdeno. This deed was objected to as invalid, because of the relation of the parties; and the court below sustained the objection, and rejected the evidence.

The question is presented, therefore, whether, as our laws now stand, a deed can be made by a husband to his wife. To determine this question, we must see how their relations were governed, in this respect, before our present system was introduced.

The effect of marriage was to produce what is called in the law books unity of person; the husband and wife being but one person in the law: Co. Litt., 112, a; 1 Bl. Com., 442. The wife, by her coverture, ceased to have control of her actions or her property, which became subject to the control of her husband, who alone was entitled, during the marriage, to enjoy the possession of her lands, and who became owner of her goods and might sue for her demands. The wife could neither possess nor manage property in her own right, could make no contract of a personal nature which would bind her, and could bring no suit in her own name. In short, she lost entirely all the legal incidents attaching to a person acting in her own right. The husband alone remained sui juris, as fully as before marriage.

It followed from this legal merger by coverture into a single personality, that the husband could make no grant to the wife, and the wife could make none to the husband. And furthermore, a grant to her by her husband, of a freehold, would be, in effect, a grant to take effect in futuro (the husband retaining possession for life), and such a grant was unlawful because a freehold could only pass by "livery of seizin, which must operate either immediately or not at all. It would, therefore," continues Blackstone, "be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession:" 2 Bl. Com., 165. But a husband might make a devise to his wife, "for that such devise taketh no effect but after the death of the devisor:" Littleton, § 168; Co. Litt., 112, a, b. The same incidents of coverture which made the husband sole possessor of his wife's lands, led to the rule which made estates in their joint names differ from joint tenancies proper, and regarded the title, not as held by moieties, but as an entirety: 2 Bl. Com., 182; Co. Litt., 187, a.

Whether the common law rule preventing husband and wife from making grants to each other is a rule springing from, and inseparably attached to, the relation of marriage, or whether it is an incident to the wife's disability to control property in her own right, must guide us somewhat in determining the effect of our enabling statutes. There can be no doubt that there are incidents of marriage independent of all considerations of property. The common law writers never attempted to classify them, and we must get such light as we can from examples and analogies. It is safe, however, to assume that no act can be absolutely inconsistent with the marriage relation, if it has received the sanction of either law or equity. We must, therefore, see whether the disabilities which applied at common law, in cases like the one before us, have been regarded as universal and personal disqualifications. Upon this we have an abundance of authority.

There were local customs whereby a wife might take by immediate conveyance from her husband--as, for example, at York: Fitzh. Ab. Prescription, 61; Brown's Ab. Custom, 56 (cited Tomlyn Law Dic., Baron and Feme). The queen consort may sue and be sued, alone; may take grants from her husband, as well as from strangers; may take, as well as receive grants, and may covenant: Com. Dig. Roy., F. 1. A husband could convey to the use of his wife under the statute of uses, whereby the use vested in her directly as a legal estate, without the action of the feoffee: Com. Dig. Baron and Feme, D. 1, citing Co. Litt., 112, a. And he might, under the same statute, covenant with a third person to stand seized to the use of his wife: Id.

It appears, therefore, that the law did not prohibit a husband from accomplishing for his wife the precise thing which he would have accomplished by a direct conveyance; and it would seem, from this, that the rule was one of technicality, and not of substance. But there are further illustrations which will throw light upon this subject. When husband and wife were dealing, not in their own right, but in a representative character, or what is termed technically, in auter droit, either might sell and convey to the other, as to a stranger: Co. Litt., 112, a, 187, b; Com. Dig. Baron and Feme, D. 1. It needs no remark to suggest that if the common law was designed to produce unity of will, and to prevent action except by one not under influence or compulsion, no such practice as this could be permitted, for a husband's influence over his wife is personal, and will operate just as strongly, in fact, in one class of dealings as in another. The rule can only be made sensible by holding that, as to matters which a wife could be allowed to hold and manage separately from any interest of her husband, these disabilities of coverture did not exist, or, in other words, that they were not regarded as personal only, but as relative to property. Thus far we have considered only such rights as are legal, as distinguished from equitable, and are enforced in all courts alike. But there has grown up by the side of the common law, a system of equitable rights and powers, which places married women, in regard to property, on the same footing, in most respects, with single women. When property is set apart for the separate use of a married woman, she is, in regard to it, emancipated from the disabilities of coverture, so far as the terms of the trust warrant. This emancipation from her legal disabilities does not depend upon the husband's consent, nor upon any antenuptial agreement. It can be accomplished by any one, relative or stranger, who sees fit to provide a fund for her benefit.

She may sue and be sued concerning it; she may contract concerning it, and her contracts will bind it and be enforced; she may give it, or sell it. Her title is technically an equitable one, and not a legal one; but the trustees are bound to follow her directions, and the distinction is purely formal. The...