Perkins v. Morse

• Decision Date: 16 December 1885
• Citation: 2 A. 130,78 Me. 17
• Parties: PERKINS v. MORSE.
• Court: Maine Supreme Court

2 A. 130

78 Me. 17

PERKINS

v. MORSE.¹

SUPREME COURT OF MAINE.

Filed December 16. 1885.

The case is fully stated in the opinion.

H. L. Whitcomb, for plaintiff.

J. C. Holman, for defendant.

PETERS, C. J. Real estate, directly or indirectly conveyed to a married woman by her husband, or paid for by him, or given or devised to her by his relatives, cannot be conveyed by her without the joinder of her husband; except real estate conveyed to her as security or in payment of a bona fide debt actually due to her from her husband. Rev. St. c. 61, § 1. In the case before us it appears that a farm, with buildings thereon, was purchased in the name of a wife, and paid for fully by her husband. They afterwards separated, now living apart; after the separation he remaining upon the place. She let it under a sealed lease, in usual form, for two years, on a rent payable annually, to the complainant, who seeks to remove the husband from the possession. The only question presented by the case is whether the lease is a conveyance within the meaning of the statute above quoted. It is the opinion of the court that it is not. There is much to sustain such a conclusion. The word "convey" or "conveyance" must refer to an alienation of the estate,—a transference of the title. It is "real estate" that cannot be conveyed. A lease is personal property. It bargains away a temporary possession,— does not dispose of any fee or title. There is no inhibition against a sale of personal property by the wife alone, although given to her by the husband. Real estate "conveyed to" a married woman is the property described. "Cannot be conveyed by her" are the words to be interpreted. A lease may be, in a sense, a conveyance; but such is not the commonly accepted nor the accurate meaning of the term. When we say premises are "leased" we generally mean that the use of them is transferred, and by the term "conveyed" that the title is deeded. It is a significant fact that the word "convey" is many times used in the Revised Statutes, and especially in chapter 73, relating to conveyances; and, generally, if not at all times, in the sense of an alienation of the title to real estate. The distinction is clearly observed in section 8, which provides that "no conveyance of an estate, etc., or lease for more than seven years," shall be effectual against third persons, unless the deed be recorded.

If the legislature intended that the wife should not lease property acquired by her through her husband, it would have been easy to declare its intention in explicit terms. It is hardly to be supposed that it was left to be implied. A married woman is not limited in the management of her property, however obtained by her. She may control its income, unless she releases it to her husband. How can she manage this property or control its income, when not occupying it, unless she can rent it? The counsel for the defendant argues that if the wife could lease at all, she can lease the farm for 99 years,—a lease practically equivalent to a conveyance of title. This argument is quite plausible, but not in our judgment sound. If the wife cannot make a lease for two years, it must be because she cannot lease at all. If the lease is for 99 years a rent will be presumed to be reserved. It would be different from an absolute conveyance, which might result in a waste or loss of the property. If the statute needs amendment, the legislature can mend it. We construe it as it...