Clark v. Clark

• Decision Date: 16 April 1888
• Citation: 16 Or. 224,18 P. 1
• Parties: CLARK v. CLARK et al.
• Court: Oregon Supreme Court

18 P. 1

16 Or. 224

CLARK v. CLARK et al.

Supreme Court of Oregon

April 16, 1888

Syllabus by the Court.

Appeal from circuit court, Multnomah county.

Suit by Pauline Clark against Charles D. Clark and others to set aside certain deeds. From a decree in favor of the defendants the plaintiff appeals.

Killen & Starr, for appellant.

R. &amp E.B. Williams and Caples & Mulkey, for respondents.

LORD C.J.

This is a suit in equity to declare certain deeds hereinafter mentioned void, and to require the record of them to be canceled. The plaintiff is the widow of John C. Clark, deceased, and the mother of all the defendants except one, who is the husband of her daughter Emma A. On the 17th day of April, 1873, the plaintiff, as party of the first part, made a deed of certain realty to one T.K. Williams, as party of the second part which, in the body of it, is written as if it were her own individual deed except the attestation clause, in which it is said that "the party of the first part have hereunto set their hands and seals this the 17th day of April, 1873." This deed is signed and sealed by the plaintiff and her husband, John C. Clark, and her acknowledgment of the same is separately taken. Prior to the execution of said deed the realty thereby intended to be conveyed was the property of the plaintiff in fee simple, the interest of the husband being solely in the right of his wife. By deed of like date the same property was conveyed by Williams and wife to the said John C. Clark, who shortly thereafter died, and through whom the defendants claim title to the property in controversy. Upon this state of facts the plaintiff contends that her deed was insufficient to convey the title to such realty, because her husband was not a party to the operative part of the deed.

The provisions of our Code, regulating the conveyances of real estate of married women, are to the effect that "the husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed," provided that the same be duly authenticated, and such married woman shall acknowledge, on a separate or private examination before the officer authorized to take her acknowledgement of such deed separate and apart from her husband, that she executed the same freely and without fear or compulsion from any one. Hill's Code, § 3015. At common law, a married woman could not convey her real estate either separately or in conjunction with her husband. The effect of the marriage was to destroy her legal identity, and to confer on her husband the ownership of the personal property, the rents and profits of her real estate and curtesy. Her deed, as a conveyance, or for any other purpose, imposed no binding obligation, and was utterly void. As a result the corpus of her realty was beyond the reach of either husband or wife, and it descended to her heirs until the invention of fines and recoveries. These were devices invented by the courts of law, by which, with the concurrence of her husband, she was enabled to alien her lands. But to give them the effect of conveyances by this method the husband was required to join with the wife in levying a fine or suffering a common recovery. It was a solemn proceeding of record in the presence of the court whose duty it was to ascertain if her participation in the act was voluntary and unconstrained. A fine levied by a married woman alone, where her coverture appeared upon the record, would neither bind her nor her heirs. 2 Rop.Husb. &amp Wife, 141; Cruise, Fines, tit. "Fine," c. 5, § 12. Yet, if the wife levied a fine as a feme sole, and her coverture did not appear upon the record, and the fine was not avoided by the husband in his life-time, it bound her and her heirs upon the ground that she was estopped from averring against the record that she was a feme covert. 2 Rop.Husb. & Wife, 141. But it was always competent for the husband to enter and avoid the fine for the benefit of the wife and her heirs, as well as for himself. With this exception, a fine levied by a married woman, without the concurrence of her husband, was void, and bound neither herself nor her heirs. Whenever, therefore, a married woman was party to a fine, it was necessary that she should be examined apart from her husband to ascertain whether she joined in the fine of her own free will, or was compelled to do it by threats and menaces of her husband. This is significant as indicating that she must unite with her husband in levying the fine in order to convey her real estate. The disability incident to her coverture in the theory of the common law was created for her benefit and protection. To relieve against that so as to conclude her, two things were deemed essential to enable her to convey her lands, namely: (1) The concurrence of her husband; and (2) the acknowledgment upon a private examination that the act was voluntary on her part, and uninfluenced by fear or compulsion of her husband. "For the wife," says Mr. Macqueen, "is by the disability of coverture, precluded from disposing of it without her husband's concurrence, and in order to guard her against the consequences of an undue exercise of marital authority, the law will not suffer her to part with her estate till it is previously ascertained that she performs the act voluntarily." Macq. Husb. & Wife, *27. In lieu of the conveyance by fine, the less expensive and more convenient mode by deed has been substituted and provided by statute in this country without dispensing with any of the guards designed for the protection of married women.

By our statute, as is generally provided by the statutes of other states, the husband is required to join with the wife in the conveyance of her land, in order, as Chancellor Kent says "that his assent might appear upon the face of it, and show he was present to protect her from imposition." 2 Kent, Comm. 150. And as a general proposition it may be stated that the deed of a married woman, unless joined by her husband, or unless authorized by statute, is void. Martind. Conv. § 25, and note. "If the statute, in express terms," says Mr. Bishop, "requires that the husband shall be joined with the wife in the deed, her deed alone, however formal, is plainly of no effect. The immemorial usage, under which this sort of conveyance has been held to be good without the act of a statute requires the joinder of the husband with the wife; and it is believed that, since by a principle of the common law a wife can do no valid act without the concurrence of her husband, the husband must always join to make her statutory conveyance good; unless the statute, either in express words, or by necessary implication, renders such joinder unnecessary." 1 Bish.Mar.Wom. § 593; 1 Devl. Deeds, §§ 100, 101; Tied. Real Prop. § 794. This indicates quite plainly that a conveyance of lands held in right of the wife must be by the deed of the husband and wife, in which they join as prescribed by statute. "For," said SEWALL, J., "in a sale or grant of real estate where the title proceeds from her, the husband and wife are as one grantor. They act together in her right, his concurrence being essential to the validity of the conveyance; and she is to be joined with him in the operative words and stipulations of the conveyance." Lithgow v. Kavenagh, 9 Mass. 173. Again it was said by DEWEY, J.: "By the well-settled principles of the common law, as long held and practiced upon in this commonwealth, and subsequently confirmed by Rev.St. c. 59, § 2, a feme covert, who owns the fee of land, can convey the same only by a deed executed by herself and her husband, and when both are parties to the effective and operative part of the instrument of conveyance." Jewett v. Davis, 10 Allen, 70. A similar decision was made in Gray v. Mathis, 7 Jones, (N.C.) 502, in which a married woman, having a life-estate in land, made a deed purporting to convey it in her own name, without that of her husband's being in the body, but only affixed after the signature of the wife, and it was held that such deed was void, the court saying: "It is void as...