Cason v. Hubbard , 38 Miss. 35 ( 1859 )

HaNDY, J.,

delivered the opinion of the court.

This bill was filed by Martha A. Boone, then the widow of James A. Boone, deceased, to recover from the plaintiffs in error a certain slave, alleged to be her sole and separate property, and which had been sold and conveyed by the deed of herself and husband to Oason, on the 27th July, 1855, whilst she was an infant, of the age of eighteen years. The ground of the relief sought, is the invalidity of the deed as against the rights of the complainant, by reason of her infancy at the date of its execution; and the relief prayed for, is a decree in her favor for the slave and for hire.

A demurrer was first filed, and overruled, which presents the first ground of error relied on.

It is insisted, that the bill does not sufficiently show that the complainant was entitled to the slave as her sole and separate property, under the laws of this State, and, therefore, that the demurrer should have been sustained.

The allegations of the bill are not very explicit; but they state, in general terms, that the slave was “ owned by her at the time of her marriage” with her deceased husband; that “he was handed over to her and her husband by her guardian after her marriage that he “was her sole and separate property;” that “hep husband had no right or power to sell him, but that she is still entitled to the said slave.” These allegations are certainly sufficient, on demurrer, to show that the slave was the sole and separate property of the complainant. It is true, that there is nothing in the bill positively showing that he was so held by her under the laws of this State. But that is immaterial for the purposes of the demurrer. For if it be true, that the slave was held by her as her sole and separate property at the time of the conveyance by the husband, that would be sufficient to show that the joint deed of herself and her husband, she being then an infant, was^ insufficient to convey her title; for generally such a conveyance would be invalid, and it would require the authority of a statute to render it valid. And under these allegations, it would be incumbent on the defendants to show, that her separate estate had been legally conveyed, whether it arose under the laws of this State or of any other State; and that the conveyance was authorized by the laws of the State by which her separate property may be governed. The separate estate was, therefore, sufficiently averred to call for an answer by the defendants.

After the demurrer was overruled, the defendant Cason answered, claiming to be a purchaser for valuable consideration, and setting up the joint deed of the husband and wife to him, executed and acknowledged by them in the form required by the statute for the conveyance of the separate property of the wife, as conveying a valid title to the slave.

The question arising upon this deed is, whether it is binding upon the wife, who was, at its date, under the age of legal capacity; for it is admitted, that it was executed and acknowledged by the husband and wife according to the form required by the statute.

The statute authorizes a married woman, owning slaves in her sole and separate right, to make a contract, jointly with her husband, for the sale of such slaves; provided,- that all such sales “ shall be evidenced by bill of sale under seal, acknowledged by such married woman, as deeds of married women are'required by law to be acknowledged.” Hutch. Code, 498, § 4. It clearly appears to be the intention of this statute, that such sales should not be valid unless acknowledged in compliance with the same essential .requisites necessary to the valid acknowledgment of a deed for land by a married woman. This provision of the statute cannot refer merely to the form of the acknowledgment, but it must be taken to require such an acknowledgment in all essential particulars, as would be required in an acknowledgment of a deed conveying real estate by a married woman. And it has been held by this court, that an acknowledgment of such a deed by an infant married woman, is invalid and not binding upon her unless ratified by her after she becomes of legal age. Markham v. Merritt, 7 How. 487. And this is well sustained by decisions in other States. Sanford v. McLean, 3 Paige, 117; Bool v. Mix, 17 Wend. 119.

It is urged, in opposition to this construction of the statute, that it deprives the husband and wife, when she is a minor, of the power ■to make contracts necessary for the support and protection of her separate property, because that power depends upon the same clause of the statute which also authorizes the sale of her slaves by the joint contract of herself and her husband. It is true that the power to the wife, jointly with her husband, to make contracts for the sale of her slaves, as well as fo’r their necessary clothing, maintenance, and support, is conferred by the same clause of the statute ; but the proviso contains an important restriction upon the power to sell, which does not apply to the power to make contracts - for necessaries; and prescribes the manner in which such contracts of sale shall be made, to wit, by bill of sale under seal, acknowledged by the wife as deeds of married women are required to be done.

As to the inconvenience and inexpediency of preventing a sale of the slaves of the wife during her minority, which is suggested as a reason against this construction, we do not perceive the force of the objection. For the wife is, during minority, in legal contemplation, not possessed of that judgment and discretion which would enable her to make judicious dispositions of her property; and it was one of the primary objects of the statute to place her separate property beyond the disposal of her husband, so that the legislature might well have intended, as it must be presumed from what they have enacted that they did, to give no power to sell the wife’s slaves until she should attain to the age of legal power and discretion.

Again : it is insisted that the decree is erroneous, because there is no sufficient proof that the complainant held the slave under the laws of this State.

This objection is answered by the view taken in considering the same objection as presented upon the demurrer.

But it is shown by proof that the slave was brought to this State in the year 1846, and held by the guardian of the complainant; and shortly after her marriage to Boone, in the year 1854, that the slave was delivered over by her guardian to her and her husband, as part of her share of her father’s estate ; and that they continued to reside in Monroe county, in this State, after their marriage, and boarded with the defendant Cason. These circumstances seem to warrant the conclusion that the marriage took place in this State. And indeed it appears to have been conceded in the court below that the slave was the separate property of the complainant under the laws of this State ; for the defendant placed his title expressly upon the ground that the joint deed of the husband and wife conveyed a valid title to him under the laws of this State, which is a plain concession that the rights of the parties are governed by our laws.

Let the decree be affirmed.