Battin v. Bigelow

2 F. Cas. 1032

• Court: United States Circuit Court
• Decided: October 15, 1817
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

delivered the opinion.

As to the first objection, there is nothing in it. The presumption is that the feme coverts were of full age, until the contrary is proved. It is a matter of defence if they were under age, and must be proved if the defendant would avail himself of the fact to defeat the conveyance.

As to the second objection, the court is of opinion that the omission of the word “voluntarily,” is substantially supplied by the expressions that “she freely executed the deed, without the threats, &c. of her husband.”

There is more difficulty in the other objection, and the court forbears giving an opinion upon it, being satisfied that, though upon a critical construction of the law, the examination must be private as well as apart from the husband, still the husbands were entitled to freehold estates in the lands of their wives and might convey the same without their wives, upon which titles the lessor of the plaintiff may recover in this ejectment. It is true that no evidence was given that the husbands are still living, but this must be presumed till the contrary is proved.

The jury found a verdict for five-ninths of the land, and the mesne profits in damages. An exception was taken to the last opinion.