Miller v. Wetherby , 12 Iowa 415 ( 1861 )

Wright, J.

Four questions are suggested for our consideration. jFirst, What estate had Catherine in, the land? Second, What interest, if any, had the husband Peter ? Third, How might Catherine make a valid title? And Fourth, If her conveyance as made was not valid, is respondent estopped from setting up his title as against complainant?

As to the first it is conceded that Catherine held the real estate in her own right, as permitted and contemplated by §1, chap. 5, Acts 1846, p. 4; which provides, that a married woman may become seized or possessed of real estate by decent, demise, gift, purchase or distribution, in her own name and as of her own property, provided, the same does not come from her husband, nor is, nor has been purchased with the funds or property of the husband during covert-ure.

In the second place, the husband had no estate or interest in the land. Catherine bore no issue to the husband Peter.

The other inquiries are the important ones, and yet they really present but little difficulty. Was it necessary to the validity of the deed to Jordon, that the husband should have joined in its execution ? This deed was made in October, 1848. By § 24, chap..- 54, Laws 1843, p. 207, it is declared that, “ A married woman may convey any of ber real estate by any conveyance thereof, executed by herself and husband, and acknowledged by such married woman, and certified in the manner hereinafter prescribed by some court, authorized by this act to take and certify such acknowledgments.” And then by the 4th § of chap. 5, Laws 1846, above referred to, it is provided, that “ the real estate owned by a feme covert, under the provisions of this act, may be sold by the joint deed of the husband and wife, executed, proved and recorded agreeably to the laws now in force in relation to the conveyance of real estate.”

These sections were in force at the time this deed was made, and it surely can not require argument to show that these, instead of recognizing the power of the wife to convey her real estate as a feme sole, establish and recognize directly the contrary rule. It is not claimed of course that the deed would be valid at common law. And there is certainly no foundation for such claim under these statutes. It is urged, however, that in equity the wife could thus convey property held in her own right. To sustain this position we are referred to 2d Story Eq. Jur. §§ 1378, 9, 88, and 90. An examination of these sections will show that the learned author is speaking of property settled to the seperate use of the wife by either ante-nuptial or post-nuptial agreements, with or without the intervention of trustees and the like, and not to cases where she acquires real estate during coverture or before, with no power of disposition as a feme sole; for as to the latter estate he expressly says, she can not dispose of the fee from the heirs, except in the manner prescribed by law; as by fine, (under our statute by deed in which the husband joins,) “ unless,” says the author, “ such an absolute power to dispose of the whole fee is conferred on the wife, she takes the estate in fee, subject to the ordinary disabilities resulting from her coverture. As her separate estate her husband can not intermeddle with it; but her heir will take it by descent, as he would any other property vested in her fee.” § 1392.

Nor does the case of Greenough v. Wigginton & wife, 2 G. Greene 435, in its actual facts and principles decided aid appellant. In that case the contract was made with the husband and wife for the erection of a house upon a lot owned by the wife, and the builder asked a mechanic’s lien. His right to the lien was recognized. But that case is not this by any means. And yet there it is said, in giving a construction to chap. 5, Laws 1846, that “to carry out the spirit of this act the title to the land can only be affected by a contract with the wife as well as the husband.” On the succeeding page of the opinion, it is true, we find this language: “Asa necessary result of the principle, that a married woman may take and enjoy property to her separate use, equity enables her to deal with it as a feme sole. Such an interest and power, whether recognized in a court of chancery or created by statute, produce as an incident the right of disposition or appointment; the power to sell, pledge or incumber her seperate estate.” But all this was mere obiter dictum and had nothing whatever to do with the case before the court. Not only so but it seems to us to be bad logic and bad law. Non constat that because a married woman may take and enjoy property to her seperate use, that “ as an incident” to such power or interest she may sell, pledge or encumber it as a feme sole. The power to take and hold, and the manner of holding it, may be one thing, whether recognized in equity or conferred by statute, and the manner of disposition or appointment, quite another. And especially is this thought applicable when the very statute under consideration which gives the power to hold real estate as of her own property, expressly provides, that she can only dispose of it by their joint deed, and not as a feme sole.

Finally, is the respondent estopped by the action of his ancestor from setting up this title. This is claimed to result from the contents of the mortgage from Jordan to the mother, which conveys to her the fee simple subject to the condition of defeasance; it being insisted that by the act of taking this title, she confessed the validity of his title; that both husband and wife recognized the validity of the entire transaction by collecting the debt and receiving the proceeds. And the argumant is extended to the recitals in the deed to Jordan; complainant urging that the heir should not be permitted to gainsay the truth of what is therein contained. But to begin with the argument seems unsound which would estop the wife by recitals contained in a deed which she was legally incompetent to make and which possessed no validity. The predicate of this invalidity is her want of power to convey the estate without the husband’s joining in the deed. Her title never was divested. During her life the title was perfect in her. Her acceptance of the mortgage would not preclude her from setting up her original title. For as she could not except in conjunction with her husband, by deed, dispose of the land, neither could she by the acceptance of the mortgage during coverture; a less solemn act; make valid that which before was void. Indeed it is difficult to see upon what principle the doctrine of estoppel can be applied to this case, and not with equal propriety to every case where the surviving widow claims as against a deed, for instance, defectively acknowledged. The writing signed by her, contains recitals, but the difficulty is that it is not her deed, and she is not to be bound by recitals contained in an instrument which in legal contemplation she never executed.

The action of the husband in suing for and collecting the purchase money, is of but little importance as against defendant’s title. He inherits from the mother. The husband could by no act of his divest the estate. He could not do so by his separate deed, nor can he by receiving the purchase money, make the title good in Jordan or those holding under him, which could only pass by the deed of the husband and wife duly and formally acknowledged.

Affirmed.