Chapman v. Miller

128 Mass. 269, 1880 Mass. LEXIS 58

• Court: Massachusetts Supreme Judicial Court
• Decided: February 25, 1880
• Status: Published

Opinion

Gray, C. J.

If the wife had acquired her title to the land before the St. of 1857, c. 249, by deed in common form, and not expressed to be to her sole and separate use, it might be doubted whether her husband could have been deemed to have so joined in her mortgage to the plaintiff as to make it valid. Rev. Sts. c. 59, § 2. Bruce v. Wood, 1 Met. 542. Jewett v. Davis, 10 Allen, 68. Wales v. Coffin, 13 Allen, 213. Agricultural Bank v. Rice, 4 How. 225.

But by the St. of 1857, c. 249, §§ 1, 2, any real or personal property since “ coming to a married woman, by descent, devise or bequest, or the gift of any person except her husband,” remained her sole and separate property; and might be sold and conveyed by her as if she were unmarried; and the husband was not required to join in, but it was sufficient that he should “ assent in writing ” to, a conveyance of her real estate. These provisions were reenacted in the General Statutes, with the addition of the words “or grant” after the word “gift.” Gen. Sts. c. 108, §§ 1, 3, 10. Following the definition of Blackstone, “ Gifts or grants of personal property are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent,” it has been intimated, though not decided, that, as applied to personal property, the terms of the General Statutes are more comprehensive than those of the statute of 1857. 2 Bl. Com. 440. Spaulding v. Bay, 10 Allen, 96, 98. But as applied to real estate, the words “give,” “gift,” — do, donum, — have never been limited to gratuitous conveyances; and it has accordingly been adjudged that, as regards real estate, the word “ give ” in the statute of 1857 is equivalent to the words “give or grant” in the General Statutes, and includes a conveyance to the wife for a pecuniary consideration. Go. Lit. 384 a. 2 Inst. 276. 2 Bl. Com. 300. Dow v. Lewis, 4 Gray, 468. Libby v. Chase, 117 Mass. 105.

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; 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. Hills v. Bearse, 9 Allen, 403. Child v. Sampson, 117 Mass. 62. Exceptions sustained.