Leland's Appeal

The opinion of the court was delivered by

Rogers, J.

The real estate of a married woman cannot be divested, except by fine and common recovery, or by deed, acknowledged according to the act of 26th February, 1770, establishing a mode by which husband and wife may convey her estate and deliver the deed to the grantee. The acknowledgment is nothing, unless it be delivered, for the delivery is of the essence of the deed; until delivery, the wife may revoke her assent, notwithstanding she may have acknowledged the deed in due and proper form. Here before the conveyance was consummated by delivery, the wife died; and eo instanti, the estate vested in her heirs. Had the deed been delivered in her life time, as an escrow, a different case would be presented, but as nothing was done by her, except executing and acknowledging the deed, we are of opinion the court was right in refusing to decree a specific performance of the contract. This is matter of some consequence to the heirs, for if a conveyance is decreed, the purchase money being personal property, would go to the husband, in exclusion of the heirs, or personal representatives.

Decree affirmed.