Greenough v. Turner , 77 Mass. 332 ( 1858 )

Metcalf, J.

This is a writ of entry to foreclose a mortgage, made by the defendant, of his homestead estate, which was exempted, by St. 1851, c. 340, from sale or levy on execution. And the question is, whether his wife joined in the deed of mortgage, within the meaning of the sixth section of that statute, which declares that “ no conveyance by the husband of any property, exempted as aforesaid, shall be valid in law, unless the wife join in the deed of conveyance.” ■

The court are of opinion that the defendant’s wife did not “join in the deed of conveyance,” within the meaning of the statute above cited. That statute exempted a debtor’s homestead from sale or levy on execution, and provided that the exemption should continue after his death, for the benefit of his widow and family, until his youngest child should be twenty one years of age, and until the death of his widow. The same provision was made in St. 1855, c. 238. And though both these statutes were repealed by St. 1857, c. 298, yet there was a proviso that such repeal should not affect any rights that might have been acquired under those statutes. By St. 1851, c. 340, § 6, which was in force when the mortgage to the plaintiffs was made, and on which this case must be decided, this right of exemption from sale or levy on execution shall not be defeated by the husband’s conveyance of the homestead, unless his wife join in the deed of conveyance. The manifest intent of this section is, that the wife’s right in her husband’s homestead, like her right to dower in his estate, shall not be barred or defeated by the act of her husband, without her concurrence in that act, by her relinquishing or releasing such right, by deed executed jointly with him. How, then, is a wife barred of dower, by joining in a deed of his lands ? The provincial statute of 1697, (Anc. Chart. 304,) and the St. of 1783, c. 37, § 5, recognized the power of a wife to bar herself of dower in her husband’s lands or tenements, by joining with him in a sale or mortgage thereof. But the mere adding of her signature and seal to his deed of his real estate, without _any words of conveyance or of release by her, never barred her right of dower. It was always held under those statutes, that, to bar such right, she must not only join with her husband, in a deed of conveyance, by executing the deed, but that the deed, so executed, must contain apt words of grant or release by her, and that the court could not inquire into her intention in joining in the deed with her husband, if that intention was not manifested by the deed itself. Catlin v. Ware, 9 Mass. 220. Lufkin v. Curtis, 13 Mass. 223. Leavitt v. Lamprey, 13 Pick. 382. Learned v. Cutler, 18 Pick. 11. Hall v. Savage, 4 Mason, 273. Stevens v. Owen, 25 Maine, 94. This construction of the elder statutes was incorporated into the provision of § 7 of c. 60 of the revised statutes, which enacts that “a married woman may bar her right of dower in any estate conveyed by her husband, by joining with him in the deed conveying the same, and therein releasing her claim to dower.” And it is our opinion that the construction, which was given to the Sts. of 1697 and 1783, as to a wife’s barring herself of a right to a life estate in one third of her husband’s lands and tenements, by joining with him in a sale or mortgage thereof, must be given to § 6 of St. 1851, c. 340, as to her barring herself of a right to a life estate in the whole of his homestead, and his children of a right to a home there during their minority. The deed of conveyance, under which the plaintiffs claim, is therefore not valid in law, because the grantor’s wife did not join in that deed. Richards v. Chace, 2 Gray, 383. And there must be a new trial of this case, unless the plaintiffs elect to become nonsuit.

The provision in St. 1857, c. 298, § 7, tends, perhaps, to confirm our view of the law. That section is as follows : “ Any conveyance by the husband, heretofore made, or hereafter to be made, of any property exempted as aforesaid, shall be valid in law to defeat the interests of the wife and children in such property, she joining therein for the purpose of releasing her right to a homestead in said property, in the same manner in which a wife may now release her right of dower in the real estate of her husband.” New trial in this court