Bartlett v. Cowles , 81 Mass. 445 ( 1860 )

Metcalf, J.

If we regard the plaintiff’s intestate merely as an infant, and not also a feme covert, he can disaffirm her executed contract for the sale of the eight trees mentioned in the bill of exceptions, and recover the value of them, (if he can do it at all,) only on the same terms upon which she could have done it, namely, by restoring the money which she received for them. He must therefore fail in this action. Badger v. Phinney, 15 Mass. 363. Boody v. McKenney, 23 Maine, 525. Carr v. Clough, 6 Foster, 280. Bartholomew v. Finnemore, 17 Barb. 430. Bailey v. Barnberger, 11 B. Monr. 115. Reeve Dom. Rel. 244. 1 Parsons on Con. bk. 1, c. 16, § 5. 2 Kent Com. (6th ed.) 240, and cases there cited.

As to the lumber mentioned in the exceptions, the report of the evidence is defective; but the counsel for the plaintiff, in his argument and statement, put the lumber on the same ground, in all respects, as the eight trees.

The case would end here, were it not for the intestate’s coverture, in addition to her infancy. Regarding her as a feme covert, under the common law disabilities of that relation, her contracts for the sale of the eight trees, and the others from which the lumber was xnade, would have been void, and not, like an infant’s, voidable only. But we are of opinion that the husband of an infant succeeds to the place of her guardian —- all other guardianship of her, as a minor, being, by the Rev. Sts. c. 79, § 23, terminated by her marriage - - and that a sale of trees on land held by her in fee simple, with his concurrence and sanction, for a fair price paid into her hands, is a valid transaction, and gives to the purchaser a right to take the trees, and a perfect title to them when taken. See Reeve Dom. Rel. 327, 328. By the common law, the husband acquires, on the marriage, a freehold estate in his wife’s lands, and a right to regulate the cultivation of them, and to take the rents and profits. His liability for waste need not now be considered. See Babb v. Perley, 1 Greenl. 6. There is no suggestion that the sales of the trees, in the present case, were acts of bad husbandry, injurious to the inheritance.

This last view of the case assumes that the intestate’s condition was that of a feme covert at common law. \

Whether, under Sts. 1855, c. 304, and 1857, c. 249, passe' “ to protect the property of married women,” an infant f covert has the same rights and powers as if she were an and the sale of the trees by the plaintiff’s intestate therefore valid, without any other support, is a question on which it is not necessary to express an opinion. Exceptions overruled.