3. Of Equitable Separate Property.-When a married woman has the capacity to deed her equitable separate property she executes the deed, unless the settlement provides otherwise, as if unmarried.1 As to whether or not she has the capacity there are three rules: (1) That she has the capacity unless the settlement takes it away; (2) that she has not the capacity unless the settlement ;2 gives it; and (3) that she has the capacity to deed away her estate during coverture, but not her reversion.4 Her equitable property, which is not separate, she must deed as she does her legal estates of the same kind.5

4. Of Statutory Separate Property.-The general rule is that a married woman has no capacity to dispose of her statutory separate lands unless this is expressly given by statute.6 The power to dispose is not, for example, included within the power to "own enjoy, and possess, as if unmarried," and when the capacity is not expressly given her she must dispose of her statutory separate property in the same way as she would dispose of property held as at common law,8 and her invalid deed would have no effect.9 If the statute expressly gives her the power to dispose of her property,but prescribes some particular mode of dispositionsome particular formalities-the deed must substantially conform with the requirements of the statute or it will be wholly void.10 If the statute expressly gives her the power of disposition, but names no particular mode of execution, etc., she may execute her deed as if unmarried,11 and if it is imperfect it may be confirmed, and will be valid in equity just as the imperfect deed of an unmarried woman is.11

Dubois, 12 Pet. (U. S.) 345, 374; Lane 2. Dolick, 6 McLean (U. S.) 200; Leonis v. Lazzarovich, 55 Cal. 52, 57; Mariner v. Saunders, 10 Ill. 113; Cross 7. Everts, 28 Tex. 523, 532.

1. American Home Missionary Soc. 7. Wadhams, 10 Barb. (N. Y.) 597, 602. "Hence it follows, that in relation to a separate estate held by a feme covert, without the prohibition of anticipation, she is, to all intents and purposes, a feme sole, and so she is treated in all the books." Essex v. Atkins, 14 Ves. 542; Radford v. Carwile, 13 W. Va. 572, 578.

2. Chew 7. Beall, 13 Md. 348, 360. 3. Swift v. Castle, 23 Ill. 209, 222. 4. Radford v. Carwile, 13 W. Va. 573, 682, 683.

5. Clayton v. Rose, 87 N. Car. 106, 110; Young v. Young, 7 Coldw. (Tenn.) 461, 477; Hawley v. Twyman, 29 Gratt. (Va.) 728.

6. Swift v. Luce, 27 Me. 285. "The statute of 1844, ch. 117, entitled 'An act to secure to married women their rights in property,' has not so altered

the common law as to enable a feme covert to sell her personal property without the assent of her husband.

There does not appear to have been any language used in the act with a design to remove the disabilities imposed by the common law upon a feme covert, and to enable her, contrary to its rules, to make sales and purchases of property."

99.

7. Parent. Callerand, 64 Ill. 97,

8. Bressler v. Kent, 61 Ill. 426. "The act of February 21st, 1861, to protect married women in their separate property,' does not go to the extent of authorizing married women to sell real estate without concurrence of the husband. Such power cannot be implied, but must be given in direct terms."

9. Lucas v. Cobbs, 1 Dev. & B. (N. Car.) L. 228, 232; Rogers v. Higgins, 48 Ill. 211, 216.

10. Silliman v. Cummins, 13 Ohio 116,

118.

11. Edwards v. Schoeneman, 104 Ill. 278,284; Scranton 7. Stewart, 52 Ind.68,

:

5. Joinder of Husband.-The husband's joinder in his wife's deed is generally necessary to render it valid,1 and is unnecessary only when she is expressly authorized to deed "as if sole," or "as if unmarried."2 At common law he had an actual estate to convey, and it would seem that he had to join as a cograntor;3 but when the whole estate is vested in the wife and his assent is required to prevent imposition, his mere signature to the deed is enough,4 and he need not be named in the body of the deed. But his assent cannot be proved by parol, although, where his assent was required in writing, his joinder in a mortgage note was held sufficient, though he did not join in the mortgage at all. The joint deed of husband and wife need not be executed at the same time and place. Whether he shall join is discretionary with him, and he cannot be compelled to join; so it is a personal right and cannot be delegated; nor can he honestly claim compensation for joining. His joinder is not necessary in his wife's deed of her equitable separate estate, when she has the power to convey as if sole, nor need he join in her deed executed under a special power. Where, by statute, a husband must join in his wife's deeds, she cannot without him make a deed good in equity, or a good agreement to convey.

6. Execution, Acknowledgment Deeds. When a married womar she must strictly conform with t execute it herself; she would n her name in her presence, nor t her, and she must acknowledge it if the power refers to the mode privy examination apart from her thereof is fatal.10

89; Silliman v. Cummins, 13 Ohio 116, 119.

1. Alexander v. Saulsbury, 37 Ala. 375, 377; Hartley v. Ferrell, 9 Fla. 374, 378; Bressler v. Kent, 61 Ill. 426; Scott v. Scott, 13 Ind. 225; Shumaker v. Johnson, 35 Iowa 33, 35; Jewett v. Davis, 10 Allen (Mass.) 68, 71; Buchanan v. lazzard, 95 Pa. St. 240, 243; Young v. Snyder, 3 Grant (Pa.) 150, 151.

2. Rake v. Lawshee, 24 N. J. L. 613, 616.

3. Blythe 7. Dargoin, 68 Ala. 370, 375.

4. Pease v. Bridge, 49 Conn. 58, 61; Evans v. Summerlin, 19 Fla. 858, 861; Hills v. Bearse, 9 Allen (Mass.) 403, 406; Stone v. Montgomery, 35 Miss. 83, 107; Elliott v. Sleeper, 2 N. H. 525, 529.

5. Chapman v. Miller, 128 Mass. 269, 271. "In the case at bar, the wife, having acquired her title by deed since the statute of 1857. might convey it without her husband joining as a grantor,

d Recording of Married Women's xecutes a deed under a power terms of the power;6 she must be bound by another signing nother filling in blanks left by in conformity with the power of acknowledgment.9 When a husband is required, omission

and the insertion of his name in the last clause of the mortgage, with his signature and seal, manifest the 'assent in writing,' which was all that was requisite to make it valid."

6. Drury . Foster, 2 Wall. (U. S.) 24. "A paper executed under seal for the husband's benefit. by husband and wife, acknowledged in separate form by the wife, and meant to be a mortgage of her separate lands, but with blanks left for the insertion of the mortgagee's name and sum borrowed, and to be filled up by the husband, is no deed as respects the wife, when afterwards filled up by the husband and given to a lender of money, though one bona fide and without knowledge of the mode of execution."

7. Hord v. Taubman, 79 Mo. 101,
104, and reasoning in above note.
8. See note 1.

9. Cross v. Everts, 28 Tex. 523.
10. Pratt v. Battels, 28 Vt. 685; 2

An examination apart means an examination out of the presence of the husband so that he cannot communicate with his wife by word, look or motion. The husband and wife need not acknowledge at the same time.2 If a married woman has full power to deed her property and no special acknowledgment is required, the effect of defects in the acknowledgment is the same as in the case of unmarried women.3

The Certificate.-The certificate is the legal evidence of the execution of the deed, and it must show that everything has been done which is necessary to the validity of a married woman's deed. The certificate is prima facie evidence of all that it states;6 it is not conclusive as against the wife, so that she may show, for example, that there was in fact no prior examination,8 except, perhaps, where the grantee was a party to, and had no notice of, the defect, and except as to bona fide purchasers for value.10 Without a proper certificate the deed is absolutely void;11 an in

Scribner Dow., ch. 13; Hepburn '. Dubois, 12 Pet. (U. S.) 345, 374.

1. Belo . Mayes, 79 Mo. 67. "The examination of the wife separate and apart from the husband, required by the statute, means an examination out of the presence of the husband, so that he cannot communicate by word, look or motion."

2. Newell . Anderson, 7 Ohio St. 12, 16. Compare Adams v. Buford, 6 Dana (Ky.) 406, 408.

3. Edwards 7. Schoeneman, 104 Ill. 278, 284: Scranton 7. Stewart, 52 Ind. 68, 89; Silliman 7. Cummins, 13 Ohio 116, 119.

4. Young v. Duvall, 109 U. S. 573, 577- "The certificate of the officer states every fact essential under the statute to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed. sealed and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the husband, in respect to the execution and delivery of the deed. To that end he was required to examine her privily and apart from the husband. These facts were to be manifested by a certificate under his hand and seal."

5. Gill. Fauntleroy, 8 B. Mon. (Ky.) 177; S. B. Toulmin v. Heidelberg, 32 Miss. 268; Bagby . Ember

son, 79 Mo. 139; Browder v. Brownder, 14 Ohio St. 589; Mullins v. Weaver, 57 Tex. 5, 6.

6. Carpenter v. Dexter, 8 Wall. (U. S.) 513; Rhoades 7. Selin, 4 Wash. (U. S.) 718; Smith 7. McGuire, 67 Ala. 34, 37; Blackman v. Hawks, 89 Ill. 512; Heeter v. Glasgow, 79 Pa. St. 79.

7. Russell 7. Baptist Theological Union, 73 Ill. 337. "It is a rule that the acknowledgment of a deed cannot be impeached for anything but fraud, and in such case the evidence must be clear and convincing beyond a reasonable doubt; and whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of the party purporting to have made the acknowledgment cannot overcome the officer's certificate, nor will such evidence, slightly corroborated, overcome it." Jackson v. Hayner, 12 Johns. (N. Y.) 469, 472; Central Bank 7. Copeland, 18 Md. 305; Fisher v. Meister, 24 Mich. 447; Marsh v. Mitchell, 26 N. J. Eq. 497: Priest v. Cummings, 16 Wend. (N. Y.) 617, 631. 8. See above note.

9. Davis. Kennedy, 58 Tex. 516; Drury . Foster, 2 Wall. (U. S.) 24. 34; Ö'Ferrali 7. Simplot, + Iowa 381; Dodge . Hollingshead, 6 Minn. 1; Stone 7. Montgomery, 35 Miss. 83; Williams 7. Robson, 6 Ohio St. 510, 515; Baldwin v. Snowden, 11 Ohio St. 203: Shrader . Decker, 9 Pa. St. 14; Hartley v. Frosh, 6 Tex. 208; Harkins 7. Forsythe, 11 Leigh (Va., 294

10. Reasoning in above cases.

7'.

11. Smith . McGuire, 67 Ala. 34, 37; Leonis . Lazzarovich, 55 Cal. 52, 56.

sufficient certificate cannot be helped out by parol evidence, or reformed in equity.2

7. Confirmation of Married Women's Deeds. If a married woman's deed is defective it may be confirmed, if confirmable, in three ways: by act of party, by statute, and by suit in equity.

5

6

(1) By Act of Party.—If a married woman's deed is imperfectly executed, it is usually utterly void, and cannot, therefore, be ratified by her; her subsequent assent to it, during or after coverture, or her parol adoption of it, or her declarations of her willingness to do everything necessary to make it valid, give it no validity. To give it effect it must be re-acknowledged and delivered: it must be made a new deed;9 and in such case it does not relate back, but takes effect only from the date of such reacknowledgment and delivery;10 and so it is defeated by an intermediate valid deed of the same property.11 In cases where the deed, though defective, is executed by her while acting with the powers of a feme sole, it is not wholly invalid and may therefore be confirmed.12

(2) By Curative Statutes.--As a general rule, statutes curing the defects in deeds of married women are void;13 but in some States they have been held valid, 14 especially where the State constitution authorized them.15 There seems to be no reason why a statute

1. Jourdan . Jourdan, 9 S. & R. (Pa.) 268. 274: Pendleton . Bulton, 3 Conn. 406, 412; Martin 7. Hargardine, 46 Ill. 322; Smith v. Hunt, 13 Ohio St. 260; Harty 7. Ladd, 3 Oreg. 353.

2. Barnett . Shackleford, 6 J. J. Marsh (Ky.) 532; 22 Am. Dec. 100; Lindley. Smith, 58 Ill. 250; Wannali z. Kem. ;I Mo. I50.

3. Buchanan 7. Hazzard, 95 Pa. St. 240, 243. Nothing is better settled than that a deed by a married woman without joining her husband is absolutely void; and the evidence of the husband's verbal assent could not help the matter. . . . Nothing but a new deed, duly executed and acknowledged, could avail."

4. Adams 7. Buford, 6 Dana (Ky.) 406, 408; Watson v. Bailey, 1 Binn. (Pa.) 470.

5. Price . Hart, 29 Mo. 171.

6. Same case, and § 366, Stewart on Husband and Wife.

10. Doe v. Howland, 8 Cow. (N. Y.) 277, 284; 18 Am. Dec. 445; Buchanan z. Hazzard, 95 Pa. St. 240, 243.

11. Jackson v. Stevens. 16 Johns. (N. Y.) 10. "A deed executed by a feme covert is not binding upon her, until acknowledged, and her subsequent acknowledgment does not relate back to the time of the acknowledgment of the deed. So, where a husband and wife execute a deed for land of the wife, but which she does not then acknowledge, and the husband and wife afterwards execute another deed of the same land, which is acknowledged by the wife, and the wife then acknowledges the first deed, the title to the land is vested in the grantee in the second deed."

12. Spafford v. Warren, 47 Iowa 47, 51. 13. Loomis v. Brush, 36 Mich. 40, 46. "It is very well settled that such an instrument is of no more validity as an actual conveyance in equity than at There can be no ground for claiming that a deed absolutely void in law when made is validated as a conveyance by the subsequent laws which enable married women to take and enjoy property as if sole."

7. Adams 7. Buford, 6 Dana (Ky.) law. 406, 408.

8. See note I above and Smith v. Shackleford, 9 Dana (Ky.) 452, 476; Boatman v. Curry, 25 Mo. 433; Doe v. Howland, 8 Cow. (N. Y.) 277, 284; 18 Am. Dec. 445: Newell . Anderson, 7 Ohio St. 12, 16; Jourdan v. Jourdan, 9 S. & R. (Pa.) 268, 276.

9. Miller . Shackleford. 3 Dana (Ky.) 289, 297.

14. Randall v. Kruger, 23 Wall. (U. S.) 137. 149.

15. Purcell . Goshorn, 17 Ohio St. 641. 646; 49 Am. Dec. 448; Smith v. Turpin, 20 Ohio St. 478, 491.

should be able to cure a defect which neither the parties nor a court of equity could remedy.1

(3) By Courts of Equity.-Although it lies within the ordinary jurisdiction of courts of equity to carry out the intentions of parties, and to correct, reform and compel a re-execution of an imperfect deed, this jurisdiction is founded, not on the validity of the deed, as a deed, but on the evidence which it gives of a contract between the parties, on its validity as a contract to give a deed.2 This jurisdiction depends, therefore, on the capacity of the parties to the contract to give and take a deed, and as married women have usually no general capacity to contract, and as a contract to execute a statutory power could not be specifically enforced,3 courts of equity have not been in the habit of reforming or giving effect to the imperfect deeds of married women. Generally a married woman's deed invalid at law is equally invalid in equity.5 When she can convey only under a power which prescribes a certain mode, if that mode is not pursued the power is no more executed in equity than at law, and if equity enforced the deed it would give the grantor an additional power. But where the grantor has the power of a feme sole to convey, independently of the mode followed, equity will reform a defect and compel a conveyence in accordance with the intentions of the parties. And as a deed of property is a contract with reference thereto, wherever such contracts are valid, although the grantee may perhaps not have a specific performance of an imperfect deed, he may probably enforce it as a contract against the property, and recover any purchase money paid thereupon.9 For the reasons above

1. See note 2 above and Silliman v. Cummins, 13 Ohio 116, 119.

2. Gebb v. Rose, 40 Md. 387, 393. "But clearly no relief can be afforded. The instrument involved is without effect even as a contract to convey, the least objectionable footing upon which it could be placed." Čarr v. Williams, 10 Ohio 305, 310.

3. McBryde v. Wilkinson, 29 Ala. 662; Wilks . Burns, 60 Md. 64, 71.

4. Holland v. Moon, 39 Ark. 120, 124. 5. Williams v. Walker, 9 Q. B. D. 576, 581; Drury . Foster, 2 Wall. (U. S.) 24. 34; Holland v. Moon, 39 Ark. 120, 124; Leonis . Lazzarovich, 55 Cal. 52: Breit. Yeaton, 101 Ill. 242, 262; Stevens v. Parish, 29 Ind. 260, 263; Grapengether . Fijervary, 9 Iowa 163; Gebb v. Rose, 40 Md. 387, 394; Bagby v. Emberson, 79 Mo. 139; Marvin 7. Smith, 46 N. Y. 571, 574; Purcell 7. Goshorn, 17 Ohio 105, 124; Roseburgh v. Sterling, 27 Pa. St. 292: Wright v. Dufield, 11 Heisk. (Tenn.) 218. 6. See Leonis . Lazzarovich, 55 Cal. 52, 55.

8

7. Edwards v. Schoeneman, 104 Ill. 278. "Under the acts of 1869, and section 18 of the act of 1872, relating to conveyances, a married woman might, by joining with her husband in the execution of a deed or mortgage relating to the sale or disposition of her real estate, bind and conclude herself, the same as a feme sole. . . . Since the passage of the act of 1869, in regard to conveyances, a court of equity may correct a mistake in the description of the property in a deed or mortgage of a married woman's land."

8. Felkner v. Tighe, 39 Ark. 357. "A married woman cannot make an executory contract to convey land which will bind her or her heirs; but if her vendee, under such contract, should make payments on the land, such payments will be a charge upon the land, enforceable in equity, upon her refusal to convey." See also Shroyer v. Nickell, 55 Mo. 264, 269; Danner v. Berthold, II Mo. App. 351,

358.

9. Inference from above cases.