Edgar v. Baca , 1 N.M. 613 ( 1875 )

By Court,

JohnsoN, J. :

The appellants brought their bill against respondents in the district court for Santa Ana county, at April term, 1872, said respondents being Quirina Baca and Filomeno Gallegos, her husband, and the appellants (complainants in the court below), being the daughter and heir of James L. Collins, deceased, late of Santa Fe county, and her husband, James M. Edgar. Complainants allege that Quirina Baca, then being owner of certain real estate in Santa Ana county, now known as La Bajada rancho, by her deed dated the twenty-fifth of February, 1867, conveyed to said Collins the undivided half of all of said property. 2. That at the time of the transactions set forth in the bill, and for several years prior to the commencement thereof with said Collins, said Quirina Baca was and had been living separate and apart from Gallegos, her said husband, who had “agreed and consented that his said wife, Quirina Baca, should have the entire management, control, and disposition of all her own individual property, without any let, hindrance, or molestation on the part of him, the said Filomeno Gallegos, and therefore in accordance with the terms of said undertaking refrained from and withdrew from all connection with any of the business or property of the said Quirina Baca, and from that time until after the death of the said James L. Collins, lived separate and apart from the said Quirina Baca, and in another county than that in which she lived.” 3. That in May, 1869, Quirina and Collins had a settlement of their partnership accounts, ascertaining a balance due from her to Collins of one thousand eight hundred and seventy-one dollars and six cents, to secure which she then gave to Collins a mortgage on the remaining undivided one half of the said real estate, household and. kitchen furniture, live stock, etc.

Complainants prayed the court to decree a partition of the said real estate and personal property between them and the respondents; to appoint a commission to take an account between complainants and respondents, and to decree a foreclosure of the mortgage and sale of respondent’s half of said real estate, live stock, etc., and to pay such amount as may be found to be due on account, etc., from respondents to complainants.

Bespondents demurred to the bill, alleging the following grounds of demurrer: 1. Said bill does not show any title in or conveyance to said Collins, of the real estate mentioned therein by the said Quirina Baca. 2. Said bill by its terms vests the title of Collins to the real estate on a verbal agreement, which agreement, so far as it affects real estate, is null and void. 3. Said bill alleges a conveyance, by the defendants to said Collins, which was not joined in by her husband, and attempts to claim title from this conveyance by another allegation to the effect that by an agreement the said defendants were living apart, and by the terms thereof said Quirina Baca had the right to transact business solely, but fails to allege that she had the right and power, by the terms of said agreement, to sell and convey real estate without the consent of her husband. 4. Said bill is multifarious in this, it seeks to settle a copart-nership, set aside conveyances, and foreclose a mortgage. 5. The paper purporting to be a mortgage, and which it is sought to foreclose, is not a mortgage by its terms.

On the twenty-third of October, 1873, the court below made a decree sustaining the respondent’s demurrer and dismissing the complainants’ bill with costs in favor of respondents. And from this decree complainants bring their appeal.

In this court, at the argument, the position most strongly insisted upon, if not exclusively, by the appellants, is that their bill shows sufficient ground for a court of equity to make the decree prayed for, touching the real estate at least. They insist that, the statutes of this territory to the contrary notwithstanding, a wife living separate and apart from her husband can convey or mortgage her real estate absolutely, without the concurrence or joinder of her husband, in the deed of conveyance or mortgage; and in support of their position cite authorities which would be conclusive in this court were the law of this territory similar to the law of the states in which the decisions quoted were rendered.

The material portions of the law of this territory relative to conveyances of real estate are embraced in chapter 44 of the Revised Statutes. Section 1 of this chapter says: “Any person or persons, or body politic, holding, or who may hold, any right or title to real estate in this territory, be it absolute or limited, by possessions, in part payment or transfer, may convey the same in the manner and subject to the restrictions prescribed in this act.”

The effect of this language is such — so restrictive — that any writing affecting real estate, in law or equity, is of force, or valuable, so far only as it may be in accordance with the requirements of the statute; and of course, if such writing do not conform to the requirements of the-statute, it has no force, and is valueless. Section 9 of the same chapter says: “Any married woman may convey her real estate, by any conveyance executed by herself and her husband, and shall be acknowledged as a married woman, and certified to in the manner hereinafter prescribed;” and sections 10, 11, 12, and 13 contain the further legal requisites to render valid a conveyance of her real estate by a married woman.

The statutory provisions have existed since January 12, 1852. Judging from their context, the intention of the legislature which enacted them was to prevent husbands from squandering the real estate of their wives; but facts occurring in several parts of this territory have demonstrated their adaptability for the protection of the real property of married women against the rapacity of others as well. The term “married woman” in these statutory provisions has no different sense from that in which it is understood in any other civilized community, and that is the legal sense. When a woman is joined with a man in wedlock, performed by either clergyman or civil officer, she becomes a married woman in law, and remains so in contemplation of law until the death of herself or husband, or until they be divorced by the decree of a court of competent jurisdiction; and she remains, until such separation take place, subject to all the liabilities and disabilities touching her person and estate, which the law may prescribe. Here the statute prescribes that she may convey her real estate, in a, certain manner and form, and by its phraseology implies disability on her part to convey it in any other manner and form.

No agreement, verbal or written, between her and her husband, can avoid the provisions of the statute in the premises, any more than the adverse acts of persons can nullify any other positive rule of law; and this, for two very simple reasons: 1. The power which enacts a law is the only one competent to annul, repeal, or modify its provisions; and, 2. Husband and wife, being one person in law, are incompetent to make a valid contract of the kind alleged by the complainants. It has long been settled that courts of equity may enforce the specific performance of a valid contract, afford a party redress for a wrong when the common law affords him no remedy, etc., but the equity jurisdiction of the court below or of this court is not sufficient to enforce a contract contrary to law, or to afford a remedy against law.

As to the matter of a commission to take account of the copartnership between the respondent, Quirina Baca, and James L. Collins, deceased, prayed for by the complainants, they estop themselves by their own allegation that there had been a settlement of copartnership accounts by the copartners themselves, a short time previous to Collins’ death; and if there was anything due at that time from Quirina to Collins, Collins’ legal representatives had a remedy at common law, to judgment at least.

It would be supererogatory to discuss now the multifariousness of the bill alleged in the demurrer. The judgment and decree of the court below is affirmed.

Bristol, J., concurred in the affirmance.