Wolff v. Meyer

• Decision Date: 10 June 1907
• Citation: 75 N.J.L. 181,66 A. 959
• Parties: WOLFF v. MEYER.
• Court: New Jersey Supreme Court

66 A. 959

75 N.J.L. 181

WOLFF

v. MEYER.

Supreme Court of New Jersey.

June 10, 1907.

(Syllabus by the Court.)

Appeal from District Court, Elizabeth County.

Action by David Wolff against Maud M. Meyer. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

J. A. Kiernan and Clarence D. Meyer, for appellant. Samuel Koestler, for respondent.

SWAYZE, J. This is an action against a married woman to recover damages for breach of a written contract to convey land, in which her husband did not join. Her signature was not acknowledged. The contract bears date October 23, 1905, and the balance of the purchase money, after deducting a deposit, was to be paid December 1, 1905. Prior to that time, Mrs. Meyer conveyed the property to one Levinson by deed dated October 18, acknowledged October 31, and recorded November 6, 1905. This suit was begun November 25, 1905.

Two defenses are relied upon—that a married woman cannot bind herself by a contract to convey land, and that the plaintiff was in default because he failed to tender the balance of the purchase price.

Prior to the legislation of 1874 a married woman could not, by her own act, bind herself to convey her land. Pentz v. Simonson, 13 N. J. Eq. 232. By the fifth section of the revision of 1874 (Revision, p. 637) she was authorized to bind herself by contract, in the same manner and to the same extent as though she were unmarried, with certain exceptions not material to the present case; but section 14 (Revision, p. 639) provided that nothing contained in the act should enable any married woman to execute any conveyance of her real estate, or any instrument incumbering the same, without her husband joining therein as theretofore.

The present case presents the question which was left undecided in Lorillard v. Union Brick & Tile Manufacturing Company, 45 N. J. Eq. 289, 17 Atl. 632, whether a married woman can enter into a contract for the sale of her real estate apart from her husband.

The language of the fifth section is broad enough to cover the present case, unless it is modified by the fourteenth section; and the construction thus far put upon the act by the courts has favored the power of the wife to contract as a feme sole. In Sullivan v. Barry, 46 N. J. Law, 1, affirmed 47 N. J. Law, 339, 1 Atl. 240, it was held that the wife could, without the co-operation of her husband, create a term of five years in her lands, and Chief Justice Beasley said: "The leading object of the statute is to give the married woman her property, both real and personal, as though she were a feme sole, and to clothe her with all the rights and authorities requisite for its possession, enjoyment, and disposition, and it is indisputable that she is to have the exclusive use and benefit of her realty as though she had no husband."

The exceptions to the wife's power in section 14 are conveyances of the real estate and instruments incumbering the same. An agreement to convey is obviously not a conveyance. Is it an instrument incumbering the real estate? If we adopt the view of Chief Justice Beasley in Sullivan v. Barry, which was expressly approved by the Court of Errors and Appeals, that "incumber" is used in its ordinary and not its technical meaning, it is fair to say that an agreement to convey is no more an incumbrance than was the term of years in that case. We might rest the case upon the construction there adopted which limited the incumbrances meant by the statute to mortgages or similar burthens; but there is an additional reason for the same result growing out of the language of the act respecting conveyances (P. L. 1898, p. 670). Section 39 enacts that no estate or interest of a feme covert in any lands shall pass by her deed or conveyance without a previous acknowledgment in a prescribed form, and adds these words, which were not contained in the act prior to the revision of 1898: "Every deed or instrument of the nature or description set forth in the twenty-first section of this act [which includes agreements for sale] heretofore or hereafter executed by her and so acknowledged and certified as aforesaid shall be good and effectual to convey or affect the lands, tenements, or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected." This provision was inserted in the statutes shortly after the decision in Corby v. Drew, 55 N. J. Eq. 387, 36 Atl. 827, which held the wife's contract to convey to be unenforceable. Since the act of 1898 it has been held that specific performance will be decreed of the contract of a married woman where she has acknowledged it as required by the act (Goldstein v. Curtis, 63 N. J. Eq. 454, 52 Atl. 218, affirmed 65 N. J. Eq. 382, 59 Atl. 639), and that it will not be decreed if the agreement is not acknowledged. Schwarz v. Regan, 64 N. J. Eq. 139, 53 Atl. 1086; Ten Eyck v. Saville, 64 N. J. Eq. 611, 54 Atl. 810. In the latter case Vice Chancellor Stevens referred to the act of 1898, and...