Wing v. Deans

• Decision Date: 23 May 1913
• Citation: 102 N.E. 313,214 Mass. 546
• Parties: WING et al. v. DEANS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 546

102 N.E. 313

WING et al. v. DEANS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1913

COUNSEL

Elder, Whitman & Barnum and James Thomas

Pugh, all of Boston, for plaintiffs.

Richard D. Ware, of Boston, for defendant.

OPINION

BRALEY J.

A married woman at common law was incapable of conveying her lands by deed, and the conveyance including the covenants was not merely voidable, but absolutely void either in law or equity. Fowler v. Shearer, 7 Mass 14; Concord Bank v. Bellis, 10 Cush. 276; Jewett v. Davis, 10 Allen, 68; Nolin v. Pearson, 191 Mass. 283, 284, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am St. Rep. 605, 6 Ann. Cas. 658. Nor unless acting under a power of appointment could she make a valid will devising real property. Bunnell v. Hixon, 205 Mass. 468, 91 N.E. 1022. But whether through immemorial usage, as stated by Chief Justice Parsons in Fowler v. Shearer, 7 Mass 21, or by force of Prov. St. 1697 (Anc. Chart. p. 304) c. 47,§ 3, relied on by Chief Justice Bigelow in Bartlett v. Bartlett, 4 Allen, 440, 441, 442, a deed of conveyance jointly executed by husband and wife passed a valid title to her real estate, although she would not be liable on the covenants except in so far as they might operate by way of estoppel. Colcord v. Swan, 7 Mass. 291; Wight v. Shaw, 5 Cush, 56, 66; Doane v. Willcutt, 5 Gray, 328, 332, 66 Am. Dec. 369.

The provisions of Rev. St. 1836, c. 59, § 2, re-enacted in substance in Gen. St. c. 108, § 2, are merely declaratory of the law as defined in these decisions. By St. 1845, c. 208, §§ 1, 2, and 3, a married woman was enabled to receive and to hold real property by antenuptial settlement, or by conveyance or devise, to her sole and separate use without the intervention of a trustee, and free from the control of her husband. It was held in Beal v. Warren, 2 Gray, 447, 457, that under this statute she could convey property held to her separate use even if her husband did not join in the conveyance. St. 1855, c. 304, § 3, and St. 1857, c. 249, § 2, however, while confirming the right to bargain, sell and convey an estate so held as if she were sole, provided that her husband must assent in writing to the conveyance. See Smith v. Bird, 3 Allen, 34. It resulted from these enactments that the husband's rights in his wife's lands might be either at common law, where the conveyance must be by their joint deed, or in her separate estate as tenant by the curtesy, where she might convey the fee since St. 1855, c. 304, only with his consent in writing, although he need not appear as a grantor. Comer v. Chamberlian, 6 Allen, 166; Chapman v. Miller, 128 Mass. 269; Hayden v. Peirce, 165 Mass. 359, 43 N.E. 119. Gen. St. c. 108, § 1, did away with this distinction, and real property acquired by a married woman either by descent, devise or grant after the revision took effect became her separate estate. Caldwell v. Blanchard, 191 Mass. 489, 77 N.E. 1036, and cases cited. But under section 3 no conveyance of her separate property shall be valid without the assent of the husband in writing, or 'his joining with her in the conveyance.' Weed Sewing Machine Co. v. Emerson, 115 Mass. 554. If by reason of 'sickness, insanity or absence from the state * * * or other good cause' his assent could not be obtained, application could be made to a judge of this court or of the superior court or the probate court for the judge's consent to the execution of the deed. Gen. St. c. 108, § 3; Lynde v. McGregor, 13 Allen, 182, 184, 90 Am. Dec. 188.

It is to be borne in mind that these statutes are a modification of the common law, and the right to convey is expressly made dependent upon compliance with precedent conditions, so that the conveyance by a married woman of her separate real property before St. 1874, c. 184, took effect removing the disability, unless executed in strict conformity therewith did not divest her title, and was void. Lowell v Daniels, 2 Gray, 161, 61 Am. Dec. 448; Jewett v. Davis, 10 Allen, 68; Pierce v. Chace, 108 Mass. 254, 259; Knight v. Thayer, 125 Mass. 25; Chapman v. Miller, 128 Mass. 269. If no estate passed because of the grantor's incapacity to make a valid conveyance, the covenants are also void, and the grantee even if put in possession, or those claiming under him, cannot maintain an action on the covenant of warranty upon eviction by the grantor, her heirs or devisees. Gen. St. c. 108, §§ 1-3; Nash v. Spofford, 10 Metc. 192, 43 Am. Dec. 425; Lowell v. Daniels, 2 Gray, 161, 166, 168, 61 Am. Dec. 448; Doane v. Willcutt, 5 Gray, 328, 332, 66 Am. Dec. 369; Cole v. Raymond, 9 Gray, 217, 218; Bartlett v. Bartlett, 4 Allen, 440; Basford v. Pearson, 7 Allen, 504; Plumer v. Lord, 9 Allen, 455, 457, 85 Am. Dec. 773; Melley v. Casey, 99 Mass. 241; Weed Sewing Machine Co. v. Emerson, 115 Mass. 554; Russ v. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464; Bank of America v. Banks, 101 U.S. 240, 247, 25 L.Ed. 850. It follows upon the pleadings and agreed facts, that the deed of Nancy S. Deans of...