Kingsley v. Gilman

By the Court On the 12th day of September, 1865, Remembrance R. Gilman, being the owner of two acres of land which she had acquired by grant after her marriage, executed together with her husband, Francis Gilman, a certain bond conditioned for the conveyance of the same to the plaintiff. This action is brought to enforce specific performance of the condition. The court below find that the bond was insufficiently acknowledged by the said Remembrance, and that it is therefore void. All the other facts material to the plaintiff’s recovery are found in his favor. We are of opinion that the bond was valid and binding upon the obligors without any acknowledgement. By section 106, page 571, Public Statutes, it was provided that <c any real or personal estate which may have been acquired by any female before her marriage, * * or to which she may at any time after her marriage be entitled, by * * *61* grant, * * * shall be and continue the real and personal estate of such female after marriage, to the same extent as before marriage : * * * provided, that nothing in this section contained shall be construed to authorize any married woman to give, grant, or sell any such real or personal property without the consent of her husband, except by order of the district court of the county; * * * .” The language “ to the same extent as before marriage,” must'mean “to the same extent as if she were sole.” A feme sole owning land in fee simple, has the right, by virtue of; and as one of the attributes of ownership, to grant and convey it or to contract to do so; and if' upon becoming a feme covert she has not the right to grant and convey it, or to contract t© do so, then she. is not owner to the same extent as if she were a feme sole; her ownership is not so absolute, nor so extensive, and does not embrace so many rights as if she were sole. We are of opinion, then, that underthe section cited, a married woman has the right with the consent of her husband to contract to convey her real property. And it is perhaps hardly necessary to add that as she has the right to contract, she has the right to make a valid, binding and effectual contract,- so that the contractee upon fulfilling upon his part can enforce specific performance. Yale vs. Dederer, 18 N. Y., 265 and 22 N. Y. 450. Carpenter vs. Leonard, 5 Minn., 155. Pond vs. Carpenter, 12 Minn., 430. Williams vs. McGrade, 13 Minn., 52.

The only condition which the statute cited imposes upon the exercise of her right to make such contract is that it shall not be done without the consent of her husband. The consent was given in this case, for her husband joined with her in the execution of the bond. But it is urged, and was held by the court below, that this case is governed by Section 12, Ch. 35, p. 398, Pub. St., which reads as follows : “When *62any married woman residing in this territory, shall join with her husband in a deed of conveyance Of real estate, situate within this territory, the acknowledgment of the wife shall be taken separately, apart from liei‘ husband, and she shall acknowledge that she executed such deed freely and without any fear or compulsion from any one.” The court below treat the bond in question as a “conveyance” of real estate. But by Sec. 30, Ch. 35, Pub. St. the word “conveyance” as used in that chapter, is expressly defined as not embracing “executory contracts for the sale or purchase of lands,” the bond in this case is certainly a contract of that character. Neither would the words “deed of conveyance of real estate,” in Seo. 12, above cited, include bonds of this kind according to any ordinary or authorized use of language. Sec. 68, Ch. 35, Pub. St., as will be seen at a glance, does not render acknowledgment essential to the validity of bonds of this kind. At the time then when this bond was executed, there was, so far as we discovei’, no statute requiring a married woman to acknowledge her bond or contract to convey her real estate in order to make the same binding upon her, so as to support an action, for specific performance. From these considerations it follows that the judgment rendered in favor of the defendants was erroneous, and the plaintiff is entitled to have the condition of the bond specifically performed.

It must be admitted that the policy of contenting upon a married woman authority to make a binding contract to convey her real estate without requiring her to acknowledge the execution of the same, a contract which she can be compelled to perform, is not easy to be reconciled with the policy which requires her, when she joins with her husband in a deed of conveyance of real estate, to acknowledge, separately, apart from her husband, that she executed such deed freely and without any fear or compulsion from any one. *63But in view of recent legislation in reference to the rights and .powers of femes covert, it is perhaps unnecessary to regard the distinction ma<Je as of special importance.

Judgment reversed.