Newbegin v. Langley , 39 Me. 200 ( 1855 )

Rice, J.

— The demandant conveyed the premises, by deed dated Eeb. 27, 1851, to Jane C. Langley, one of the defendants, who then was, and still is, a married woman; and said Langley re-conveyed the same, in mortgage, to the de-mandant, by deed dated April 5, 1851, to secure the payment of her promissory note given in payment for the premises in controversy. These deeds, though of different dates, were delivered at the same time, and in law constitute one contract.. Holbrook v. Finney, 4 Mass. 566; Hubbard v. Cummings, 1 Maine, 11; Dana v. Coombs, 6 Maine, 89; Bigelow v. Kinney, 3 Vermont, 359.

These deeds became operative, if at all, from the time of their delivery. Harrison v. Phillips Academy, 12 Mass. 456; Dana v. Coombs, 6 Maine, 89.

The deed and mortgage being one contract must stand or fall together. They cannot be void in part and good in part. Richardson v. Boright, 9 Ver. 368; Roberts v. Wiggin, 1 N. H. 73, and cases above cited.

The promissory note of a married woman, in this State, at the date of this transaction, was absolutely void. Howe v. Wildes, 34 Maine, 566.

It is a general rule, (the exceptions to which do not apply in this case,) that the deeds of married women are void. 2 Bright’s Husband & Wife, 38; Greenl. Cruise, Tit. Deed, c. 11, § 25 ; Hill. Ab’t, c. 25, § 49 ; Page v. Page, 6 Cush. 196; Shaw v. Russ, 14 Maine, 432; Fowler v. Shearer, 7 Mass. 14.

It was suggested in tbe argument, by counsel for the de-mandant, that the two deeds might be construed as one deed upon condition subsequent. If they were to receive that construction, the tenants would be entitled to judgment, as the demandant exhibits no right of entry for condition broken. The whole contract is more analogous to a deed from demandant with condition precedent unperformed. But they do not constitute a deed upon condition, but a deed with a defeasance. Greenl. Cruise, Tit. Deed, c. 7, § 25.

Both the defendants have pleaded the general issue, with brief statements, which, though not in form, are in substance, pleas of non tenure. In all writs of entry, the defendant may plead that he is not tenant of the freehold, in abatement, but not in bar. Stat. of 1846, c. 221. These pleas cannot avail as pleas in abatement, being informal, and not having been filed within the time prescribed by the rules of Court, and they are not authorized as pleas in bar.

The demandant must have judgment.