Haines v. Ellis

• Decision Date: 01 March 1855
• Citation: Haines v. Ellis, 24 Pa. 253 (Pa. 1855)
• Parties: Haines versus Ellis.
• Court: Pennsylvania Supreme Court

24 Pa. 253

Haines versus Ellis.

Supreme Court of Pennsylvania.

ERROR to the District Court, Philadelphia.

J. B. Townsend, for plaintiff in error.—There being no trustee, the entire estate of Post, which was a fee simple, vested in the grantee, her heirs and assigns. A married woman may take by purchase, unless her husband expressly dissents: 6 Bin. 427, Baxter v. Smith. In a number of the cases cited on part of the defendant in error, a trustee existed. In the cases of Cochran v. O'Hern, 4 W. & Ser. 95, and Heath v. Knapp, 4 Barr 228, which were cases of devise, there was no trustee. The restriction therein was owing to the coverture, as a devise or grant to a feme sole, to her sole or separate use, imposes no restriction upon the title or power of disposition, and if made to a feme covert and she survive her husband, the restraint is terminated: 3 Whar. 62; 2 Kent 165, note; 16 Johns. 537; 4 Whar. 126; 3 W. & Ser. 216. It was contended that the Act of 1848, excluding all right or power in the husband over the estate or property of his wife, prevents any restriction upon alienation of such an estate in her: Cumming's Appeal, 1 Jones 272; 1 Harris 480; 6 Harris 506, Peck v. Ward; 7 Id. 361; Ulp v. Campbell, 8 Id. 299.

Longstreth, for defendant in error.—A feme covert, in respect to her separate estate, is deemed a feme sole only to the extent of the power given by the instrument by which the estate is settled: 1 Rawle 247, Lancaster v. Dolan; 2 Whar. 11; 3 Id. 309; 9 Watts 137; 4 Barr 93. And this though no trustee intervene: 4 W. & Ser. 95; 4 Barr 228. The husband is a trustee for his wife's separate use: 6 Ser. & R. 467. A feme covert cannot convey her separate estate without her husband's uniting in the conveyance: 6 Harris 506, Peck v. Ward; 7 Id. 361. The protection of the wife is incompatible with the qualified power of alienation, as given by our statutes, and this applies as well since the Act of 1848 as before. By that Act the husband is entitled to a curtesy estate in the real property of his wife; though, by the Act of 1850, his interest is not liable to sale by execution during the life of his wife. The Act of 1848 does not free the wife from the disabilities of coverture. Its object is not to enable the wife, but to disable the husband.

(See postea, Talbot v. Calvert; also 11 Harr. 29, Faries' Appeal.)

The opinion of the Court was delivered by LEWIS, C. J.

It is not necessary to review the decisions made before the Act of 1848, relative to the rights of married women, because, according to Cumming's Appeal, 1 Jones 275, since that Act she must be "considered a feme sole in regard to any estate of whatever name or sort, owned by her before marriage, or which shall accrue to her during coverture, by will, descent, deed of conveyance or otherwise." It was said in that case, by Mr. Justice ROGERS, that the Act of 1848 "works a radical and thorough change in the condition of a feme covert. She may dispose of her separate estate by will or otherwise, as a feme sole:" 1 Jones 275. This language, so far as it has been supposed to countenance the conveyance of her estate, without the consent of her husband, has been qualified by the subsequent decisions in Peck v. Ward, 6 Harris 506; Ulp v. Campbell, 7 Id. 361; Mahon v. Gormley, 12 Harris 80, and other cases. The Act of 1848, as now understood, makes no change in the mode of alienation, although it does in the nature of the wife's estate. A married woman's estate can only be conveyed or affected either by uniting with her husband in a deed separately acknowledged according to the Act of 1770, or by some act of the husband, under "a previous written consent of the wife," duly acknowledged according to the Act of 1848. The object of the statute last named was to protect her estate from being encumbered or conveyed by her husband, or taken by his creditors, against her consent, and not to enable her to sell, encumber, or give it away without his consent. The intention was that she should "own, use, and enjoy" it. It was not necessary to the purposes of the Act, that she...