Savage v. Savage , 80 Me. 472 ( 1888 )

Libbey, J.

Both parties claim the land in controversy under Hanuah Savage, who, it is admitted, was the owner January 24, 1880. The plaintiff claims as devisee under the will of said Hannah, who died December 9, 1886. • No question is raised as to the validity of the will; and if she held the title at her death the plaintiff must prevail.

The defendant claims that said Hannah conveyed her title to David Savage, her husband, January 24, 1880, and that he conveyed to her, September 1, 1885.

The plaintiff contests the validity of the deed from Hannah Savage to David Savage on two grounds. 1. That when said deed was executed a married woman had no power to convey her lands to her husband. 2. That the deed was obtained by duress.

1. Prior to the act of 1847, c. 27, husband and wife could not contract with each other, because at common law from their legal union they were regarded as one person so far as their power to contract with each other was involved ; but by that act the husband was clothed with power to convey his real, or personal estate directly to his wife. Johnson v. Stillings, 35 Maine, 427.

By the act of 1852, c. 227, the wife was empowered to convey her real, or personal estate directly to her husband ; not in direct terms, but as a result of the power given her to convey her estate "as if she were unmarried.” Allen v. Hooper, 50 Maine, 371.

If the legal meaning of the act of 1852, has not been changed bj' the legislature since its passage, Allen v. Hooper, is conclusive as to the power of Hannah Savage to convey directly to her husband.

In the revision of 1857, c. 61, § 1, the words used in the act of 1852, giving a married woman the power to convey or devise her real, or personal estate "as if she were unmarried,” were changed to "as if sole.” This did not change the meaning at all. By act of 1861, c. 46, R. S., of 1857, c. 61, § 1, was amended by striking out the words "as if sole, and,” so that it read as follows: "Section 1. A married woman of any age, may own in her own right, real and personal estate acquired by descent, gift, or purchase; and may manage, sell, convey, and devise the same by will, without the joinder or assent of her husband.”

It is claimed by the learned counsel for the defendant that this change in the terms of the statute was intended by the legislature to restore the unity, or oneness of husband and wife, so that the wife could no longer convey her lands direetlj' to her husband. If so it would seem to restore their common law' relation so that the husband could not convey to the wife; but there is no change in the terms of the statute construed by the court as giving that power in Johnson v. Stillings, supra, and the statute still recognizes the authority of the husband to convey directly to the wife, and, in such case declares she shall not convey "without the joinder of her husband in such conveyance.”

It is not necessary to determine the intention of the legislature in the amendment of 1861 ; but it may be found in the act of 1857, c. 8, which provides that, "when a husband waives a provision made for him in the will of his deceased wife4 her estate being solvent, and in all cases where she dies intestate and solvent, he shall be entil led to an allowance from her personal estate, and a distributive share in the residue thereof, in the same manner as a widow is in the estate of her husband; and if she leaves issue he shall have the use of one-third ; if no issue, of one-half of her real estate, for his life, to be recovered and assigned in the manner and with the rights of dower.” It may have been supposed that this act was inconsistent with R. S., of 1857, c. 61, § 1, giving the wife power to devise her lands "cis if sole" and the amendment of 1861, striking out the words above quoted, was made to bring the two statutes into harmony. No other intention is perceived.

By the revision of 1871, which was in force when the deed in contention was made, no change was made in these statutes in respect to the question involved here, and we have no doubt Hannah Savage had legal power to convey her lands directly to her husband, when she executed the deed to him.

2. The law given to the jury by the presiding judge on the question of duress was sufficiently favorable to the plaintiff. The attention.of court has not been called by the learned counsel to any authority which holds it more favorable for him.

If the requested instruction presented sound law' in the abstract, the case does not show that there was any evidence proving, or tending to prove the facts upon' which it was based, and the judge, for that reason, might well refuse it. He had already fully instructed the jury upon the law of the case. We can see no error in the exclusion, or admission of the evidence excepted to.

The motion is not relied on, no report of the evidence having-been furnished.

Exception and motion overruled.

Peters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.