Cole v. Riper

• Decision Date: 30 April 1867
• Parties: SOLOMON COLEv.HENRY VAN RIPER.
• Court: Illinois Supreme Court

44 Ill. 58

1867 WL 5096 (Ill.)

SOLOMON COLE

v.HENRY VAN RIPER.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the La Salle County court; the Hon. P. KIMBALL LELAND, Judge, presiding.

This was an action of ejectment brought by Henry Van Riper against Solomon Cole, in the La Salle County Court to recover possession of a tract of land situate in the town of Whitfield, in La Salle county.

The plaintiff, to prove title, called George Munroe, who was sworn as a witness. Showed the witness a deed from John R. Snyder, and Elizabeth H. Snyder, his wife, to James Van Riper, of all of block number nine in the town of Whitfield, in La Salle county, Illinois, dated July 22, A. D. 1862, and filed for record August 2, A. D. 1862.

James Van Riper went into possession, under that deed, of a store building, which stood on the east part of the block, and moved a stable from the east side of the block.

Cole, the defendant, at that time and before, was in possession of the tavern stand on the west part of the block--on the part of the block now in controversy in this suit--as the tenant of John R. Snyder; so Cole told me.

The plaintiff then offered the deed in evidence to the jury. The defendant objected. The court overruled the objection, and the plaintiff read the deed in evidence to the jury.

The plaintiff then read in evidence to the jury a deed from James Van Riper and Hannah Van Riper, his wife, to Ellen Cole.

Plaintiff then offered in evidence a deed from Helen Cole to himself.

It was agreed that the said Ellen Cole was the wife of the defendant at the date of said last mentioned deed.

The defendant objected to the giving of said deed in evidence to the jury, on the ground that Ellen Cole, being a married woman at the date of the deed, could not convey real estate without her husband, the defendant, joining with her in the conveyance. The court overruled the objection and permitted the deed to be read in evidence to the jury, and the defendant excepted.

The plaintiff then read in evidence the affidavit of A. Potter, on the back of the declaration, of the service of a copy of the declaration.

The plaintiff then called as a witness J. W. Brown, who testified:

The defendant was in possession of the premises in controversy at the time of the service of the declaration in this case on him; and just before the commencement of this suit I advised Cole to go out of this property, and he said that the property was his, and he should not go out until he was carried out.

The jury returned a verdict for the plaintiff.

The defendant moved for a new trial at common law, on the ground that the court erred in admitting in evidence the deed from Ellen Cole to the plaintiff, and in deciding that, by the laws of this State, a married woman can convey her own real estate without her husband joining with her in the conveyance.

The court overruled the motion for a new trial, and to the decision of the court in that behalf the defendant excepted.

The court then rendered judgment upon the verdict for the plaintiff.

The defendant then prayed an appeal, which was allowed on filing bond, as required by law.

Mr. OLIVER C. GRAY, for the appellant.

At common law the conveyance of a femme covert of her land, by deed, was absolutely void. She could only pass her freehold estate by fine or common recovery; and even if she levied a fine, without the concurrence of her husband, though it would be good against her and her heirs, it would not bind the husband, and he might avoid it. 2 Kent's Com. 150, 151; Shep. Touch. by Preston, 7; 1 Preston on Abstracts of Title, 336.

In this State the common law was changed by the seventeenth section, chapter twenty-four, Revised Statutes, entitled “Conveyances.” Revised Statutes of 1845, p. 106.

But it is urged that the “act to protect married women in their separate property,” approved February 21, 1861, has changed the law on this subject.

We insist that the act of 1861 does not purport or pretend to be a conveyance act; nor does it provide in any way for the conveyance, by the wife, of her separate property, nor does it contain any repealing clause.

It simply places her separate property under her sole control, to be “held, owned, possessed and enjoyed by her the same as though she were sole and unmarried,” and exempts it from liability to execution or attachment for her husband's debts.

Chancellor KENT says:

“The reason why the husband was required to join with his wife in the conveyance was, that his assent might appear on 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.” 2 Kent's Com. 152.

The record shows that Solomon Cole and Ellen Cole have children living, the issue of their marriage.

If the property in controversy became her separate property by the deed from James Van Riper to her, Cole is still tenant by the curtesy.

We insist that the act of 1861 has not repealed, by implication or otherwise, the law which gives and creates a tenancy by the curtesy.

If not, then the husband's curtesy cannot be affected by a deed executed by the wife alone; and if not, then Cole's right to a possession of the property cannot be destroyed by her deed to Henry Van Riper. But this right is effectually destroyed if Van Riper can recover in ejectment on the strength of her deed.

Messrs. J. O. GLOVER, and GEORGE C. CAMPBELL, for the appellee.

The first point made by the appellant, is upon the introduction in evidence of the deed of Ellen Cole.

The sole objection to the deed is, that it is the separate deed of a married woman, who, under the act of February, 1861, claimed the right to, and, as we say, did, by the deed in question, convey her separate property without the “control or interference of her husband.”

It is insisted by appellant, that the law of 1861, which provides, that, as to the separate property of the wife, it “shall, notwithstanding her marriage, be and remain during coverture, her sole and separate property, under her sole control, and be held, owned, possessed and enjoyed by her, the same as though she was sole and unmarried; and shall not be subject to the disposal, control, or interference of her husband;” does not authorize the wife to convey real estate without the consent of the husband, evidenced by his joining her in the deed, as required by section 17 of the 24th chapter of the Revised Statutes, entitled “Conveyances.”

It is said repeals by implication are not favored in law, and this I concede; but it is equally true, that, if the evident intent of a subsequent statute cannot be carried out unless it operates to repeal by implication a prior act, it will always be held to so operate. Dwarris on Stat. 673; The King v. Middlesey, 2 B. & Adolph, 818; Bowen v. Lease, 5 Hill, 221; Ill. & Mich. v. Chicago, 14 Ill. 335; Maus v. Logansport P. & B. R. R., 27 Ill. 82.

The question to be considered, therefore, is, whether it was the intent of the act of 1861 to allow a married woman, as one of the methods of “controlling” and “enjoying” her separate estate, to convey it without the control or interference of her husband.

If this is the intent, it is plain that it cannot be carried out, if the husband may defeat a conveyance by refusing to join in the deed.

The only decision in our own court upon this statute, is in the case of Emerson v. Clayton, 32 Ill. 493.

It seems to me that the reasoning in that case is conclusive of this.

But the rule for which we contend is not without authority, and was expressly upheld in New York, under a law almost word for word with ours. Blood v. Humphrey, 17 Barb. 660.

By the law in question it is evident that the principle of the rule fails, for the wife has the administration of her separate estate; she has not given up to her husband the control, or title to, or possession of any of it, and not being wanting in discretion, there is no reason why she should not contract. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment, and one of the questions presented by the record is, whether under the law of 1861, known as the married woman's act, a married woman can convey real estate, acquired since that time, without the joinder of her husband. That act provides “that all the property, both real and personal, belonging to any married woman, as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman, during coverture, acquires in good faith from any person other than her husband, by descent, devise or otherwise, together with all the rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain during coverture, her sole and separate property under her sole control, and be held, owned, possessed and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control or interference of...