Kingsley v. Gilman

• Decision Date: 01 January 1870
• Citation: Kingsley v. Gilman, 15 Minn. 40 (Minn. 1870)
• Parties: DWIGHT L. KINGSLEY v. REMEMBRANCE R. GILMAN and others.
• Court: Minnesota Supreme Court

Page 40

15 Minn. 40

DWIGHT L. KINGSLEY

v.REMEMBRANCE R. GILMAN and others.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Hennepin county.

J. B. Gilfillan, for appellant, contended—

A. H. Young, for respondent, cited:

BERRY, J.

On the twelfth day of September, 1865, Remembrance R. Gilman, being the owner of two acres of land which she had acquired by grant after her marriage, executed, together with her husband, Francis Gilman, a certain bond, conditioned for the conveyance of the same to the plaintiff.This action was brought to enforce specific performance of the condition.The court below find that the bond was insufficiently acknowledged by the said Remembrance, and that it is therefore void.All the other facts material to the plaintiff's recovery are found in his favor.We are of opinion that the bond was valid and binding upon the obligors without any acknowledgment.By section 106, p. 571, Pub. St., it was provided that "any real or personal estate which may have been acquired by any female before her marriage, * * * or to which she may at any time after her marriage be entitled, by * * * grant, * * * shall be and continue the real and personal estate of such female after marriage, to the same extent as before marriage: * * * provided, that nothing in this section contained shall be construed to authorize any married woman to give, grant, or sell any such real or personal property without the consent of her husband, except by order of the district court of the county. * * *" The language, "to the same extent as before marriage," must mean, "to the same extent as if she were sole."A feme sole owning land in fee-simple has the right, by virtue of, and as one of the attributes of, ownership, to grant and convey it, or contract to do so; and if upon becoming a feme covertshe has not the right to grant and convey it, or to contract to do so, then she is not owner to the same extent as if she were a feme sole; her ownership is not so absolute, nor so extensive, and does not embrace so many rights, as if she were sole.We are of opinion, then, that under the section cited a married woman has the right, with the consent of her husband, to contract to convey her real property; and it is, perhaps, hardly necessary to add that, as she has the right to contract, she has the right to make a valid, binding, and effectual contract, so that the contractee, upon fulfilling upon his part, can enforce specific performance.Yale v. Dederer,18 N. Y. 265, and22 N. Y. 450;Carpenter v. Leonard,5 Minn. 155, (Gil. 119;)Pond v. Carpenter,12 Minn. 430, (Gil. 315;)Williams v. McGrade,13 Minn. 52, (Gil. 39.)

The only condition which the statute cited imposes upon the exercise of...