Melley v. Casey , 99 Mass. 241 ( 1868 )

Hoar, J.

The lease executed by the wife, being a lease for more than a year, and without the assent in writing of her husband, was wholly void. Gen. Sts. c. 108, § 3. Not being within the authority conferred on her by statute, the common law disability of her coverture made her deed inoperative to convey any estate whatever. We find no authority for the doctrine for which the defendant contends, that it might take effect as a lease for a year, and be void only for the excess. It was a single and entire contract; and there was no agreement of the parties for any separate part. The defendant therefore' became merely a tenant at will of the leased premises by reason of his entry, occupation and payment of rent.

The deed to the plaintiff, executed by the husband and wife, excepts from the covenants against incumbrances the lease which the wife had undertaken to make, but, as the deed grants the whole estate, the exception gives no affirmative validity to the void lease. The assignment of the lease to the plaintiff, to which the husband assents in writing, was the assignment of an instrument wholly invalid; and gave the plaintiff no other or greater right or estate than he took under the deed which had been executed on the same day. It did not purport to confirm or add to the defendant’s title, but merely to transfer to the plaintiff whatever rights the wife had. It is very clear that it could not inure to the benefit of the defendant, because it was wholly res inter alios acta, never communicated to him, or delivered to him. The lease made by the wife without the assent of the husband, being void on her part, was also void as to the defendant. To make the instrument binding upon him, we think the assent in writing of the husband which the statute requires must be an assent contemporaneous with the execution of the instrument, and delivered or communicated as an opera tive part of it. The defendant must have accepted a lease to which the husband assented at the time of the acceptance, to give the lease effect as the wife’s deed.

The title of the plaintiff being therefore perfect, and his right to the possession of the premises complete against the defendant, he is not estopped from asserting that right in this process on account of giving the notices of December 31 and January 16. Those notices granted no estate to the defendant; they did not mislead him or induce him in any way to alter his condition. The defendant did nothing under or by reason of them. They only tend to show that the plaintiff for a time mistook his rights, but do not prevent his asserting them afterward when discovered. Exceptions overruled.