Dietrich v. Hutchinson

• Citation: 50 A. 810,73 Vt. 134
• Parties: DIETRICH v. HUTCHINSON et al.
• Decision Date: 05 April 1901
• Court: Vermont Supreme Court

50 A. 810

73 Vt. 134

DIETRICH

v. HUTCHINSON et al.

Supreme Court of Vermont Caledonia.

April 5, 1901.

Appeal in chancery, Caledonia county; Start, Chancellor.

Bill by Christian Dietrich against Lydia Hutchinson and others. From a decree in favor of the orator, Edward H. Deavitt as codefendant, appeals. Reversed.

Algued before ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

Sullivan & Cleaveland and E. W. Smith, for orator.

Edward H. Deavitt, in proper.

ROWELL, J. On September 28, 1896, the petitioner sold and conveyed to the defendant Lydia Hutchinson a house and lot in Lyndon for $1,000, $200 of which were paid down, and at the same time and as a part of the transaction the mortgage in question was given thereon to secure the balance, evidenced by four promissory notes of that date for $200 each, signed by Mrs. Hutchinson and her husband, Charles Hutchinson, one of the defendants, and payable to the petitioner, or order, in one, two, three, and four years from date, respectively, with interest annually. Only Mrs. Hutchinson's name appears in the body of the mortgage as that of the grantor, the name of her husband not appearing therein at all as grantor nor otherwise, nor being suggested even in the testatum; but he signed and acknowledged the mortgage the same as his wife did. The instrument has only one seal, but, as the defendant Deavitt, who alone defends, does not claim in argument that it is not to be taken as the seal of both signers, it is so taken. On April 14, 1899, Mrs. Hutchinson leased the place for a year, and her husband directed the lessee to pay the rent to the petitioner to apply on the mortgage, and thereupon they moved away, leaving no one to look after the place for them, and the petitioner could not ascertain their whereabouts. On April 4, 1900, the defendant Deavitt, knowing of the mortgage, and what it was given for, took a quitclaim deed of the place from the Hutchinsons, the consideration of which was a debt of $65 that Hutchinson owed him for money advanced and legal services rendered. Deavitt now claims that the mortgage is void, because not joined in by Hutchinson as the statute requires, and seeks to hold the property discharged therefrom. The statute provides that a husband and wife may, by their joint deed, convey the real estate of the wife as she might do by her separate deed if unmarried (V. S. § 2209); and that a married woman shall not convey nor mortgage her real estate except by deed duly executed by herself and husband (Id. § 2646). This last section, though passed long after the other, does not alter the other, for, as originally passed, it had after the words "herself and husband" the words "as now provided by law" (Acts 1884. No. 140, § 1); and not putting those words into the revision does not alter the construction of the section, and so the question depends upon the construction of section 2209.

There is more or less conflict in the cases as to what is a sufficient joining of a husband in his wife's deed of her real estate toanswer the requirements of the statutes in such case made and provided. But we think the weight of authority is that, when the husband has a freehold interest in his wife's real estate by virtue of the marital relation, he must, in order to make her conveyance thereof good, so join therein as to pass his title, and that to do that he must be named in the body of the deed as a grantor, and use apt and sufficient words to convey, and that his merely executing a deed jointly with his wife, in which she alone is named as grantor, is not enough. 9 Am. & Eng. Enc. Law (2d Ed.) Ill. This agrees with the holding in Bank v. Rice, 4 How. 225, 11 L. Ed. 949, and Batcheler v. Brereton, 112 U. S. 390, 5 Sup. Ct. 180, 28 L. Ed. 748, that, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee; and that merely signing, sealing, and acknowledging an instrument in which another is grantor is not sufficient. Chancellor Kent says that the weight of authority would seem to favor the existence of a general rule of law that the husband must be a party to the conveyance or release of his wife, and that such a rule is founded on sound principles arising from the relations of husband and wife (2 Kent, Comm. [10th Ed.J *153); and on page *155, "on view of our American law on this subject," he concludes the general rule to be that the husband must show his concurrence in 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. An extended consideration of the cases is unnecessary. They are pretty fully reviewed in a note to Payne v. Parker, 25 Am. Dec. 220; in one to King v. Rhew, 23 Am. St. Rep. 82 (s. c. 13 S. E. 174); and in 9 Am. & Eng. Enc. Law (2d Ed.) 110-113. Much of the conflict among them is apparent, rather than real, and grows out of the difference in statutes and in the marital rights of the husband in his wife's lands. Thus, in Maine, the statute requires "the joinder of her husband," but not, it is said, as a grantor, for he has nothing to grant, but merely as an assenter, for he has only the power to give or to withhold assent; and therefore it is sufficient there if he signs and seals the deed without otherwise becoming a party to it. Bray v. Clapp, SO Me. 277, 13 Atl. 900, 6 Am. St. Rep. 197. The court says in that case that why a husband, under the common-law sway, joined in the wife's deed, was that they were both seised of her real estate, —he of a freehold and she of a fee; that they were regarded as one person, the legal existence of the wife being consolidated into that of the husband, and that, therefore, they were required in matters affecting her to join in pleading and conveyance; but that those rules, under their statutory system, are obsolete. But under our statutory systern they are not obsolete as to real estate of the wife that is not her separate property, for in that the husband still has a freehold (Hackett v. Moxley, 68 Vt. 210, 34 Atl. 949), and in respect of conveying...