By the Court,
Bonham, J. :
Two questions are presented by the record in this case.
First. Can a married woman in any event be held liable under her covenant, entered into during coverture, to convey real estate held by her in her own right?
Second. Upon the failure or refusal of such married woman to convey her lands under such covenant, may the aid of a Court of equity be invoked to compel money advanced on the purchase-price, and value of permanent improvements made on the premises, to be refunded?
[194]*194In support of the first proposition, it is claimed by counsel for appellant, that the right of a married woman to hold real estate in her own right carries with it as a necessary incident-the power of alienation.
If there is any plausible theory in support of such right in this State, its origin must be traced to this principle; for it is not derived from the common law, nor is it expressly authorized by any statutory provision. The doctrine that the right to alienate property results from the right to hold it, is maintained in general terms by good authority. (4 Kent’s Com. 441.)
But it will be observed by a perusal of the authority above cited in support of appellant’s position, that the author is discussing in general terms the grounds on which the right to alienate property is based, without any special reference to the rights of married women as a class. And when this author comes to speak directly of the rights of married women over their real property (2 Kent, 168), he says: “Though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a fine or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the Courts of equity never enforce such a contract against her. In the execution of a fine or other conveyance, the wife is privately examined, whether she act freely, and without such examination the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right.”
This principle, as enunciated by Mr. Kent, although in one sense a disability, -was not intended as a limitation of the rights of married women; but it was adopted for their protection and benefit.
Notwithstanding the doctrine which is so zealously promulgated by some (and which in some respects it is to be feared may be somewhat utopian in character), claiming an [195]*195enlargement of the rights of women, yet it is the generally received opinion that the sphere of married women’s duties, as they have been heretofore generally recognized and acquiesced in, precludes the means of acquiring by them that knowledge of law and commercial transactions necessary to enable them, as a rule, to safely and understanding^ enter into covenants concerning their real estate. The provision of our statute exempting married women from liability under their covenants in a deed must have had its origin, partly,’ at least, in this idea. (Mis. Laws, ch. 6, \ 2.)
But, be this as it may, it will not be controverted that, at common law, married women are not only held incompetent to enter into covenants to convey their real estate, but they are classified with those who are under disability to make any contract whatever; because the legal entity of the wife was held to be merged in that of the husband. And whether this disability of the common law, as applicable to married women, is calculated to operate beneficially to them, or. otherwise, is not the real question to be addressed to the Court in this case. The question to be determined is: What is the actual legal status of married women, as applicable to this ease, under the law on that subject as.it now exists?
The terms of the grant by which this property was- acquired by Mrs. Wheeler, simply provide that it is to be held by her in her own right. (§ 4, Donation Law.) No provision is made in the Act referred to for the voluntary alienation of the wife’s land acquired under it, other than “by testament duly and properly executed, according to the laws of Oregon.” (§ 4, Donation Law.) Section 2, ch. 6, Miscellaneous Laws, reads: “A husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried; but the wife shall not be bound by any covenant contained in such deed.”
This statute provides the manner in which the wife may convey her real estate, and we think by implication excludes every other manner except by devise. The manner as well [196]*196as the capacity to alienate lands is conventional, and is not a natural or inherent right. Because a married woman is allowed by law to hold lands in her own right, she would not be tolerated in conveying the same to others without any regard to the local laws on that subject.
It would not be seriously contended as a matter of practice, that under our law a person might, if he chose to do so, convey his land by the ancient mode of livery of seizin. Nor would it be claimed that a married woman might, if she chose, go into Court and revive the ancient practice of alienation by fine.
We do not think it was the intention of the framers of our Constitution and laws on this subject, to entirely segregate the proprietary interests of husband and wife and make them to all intents and purposes tioo instead of one in law. But on the other hand, might it not be fairly inferred from the language of the law and its contemporaneous history, that the prime object and controlling purpose was, to secure to the wife the right to hold such property as the means of the support of herself and family in the event that her legal protector and provider might fail, through misfortune, improvidence or death, to do so ?
It is also claimed by appellant that “it is a settled rule in equity that a feme covert in regard to her separate property is considered as a feme sole," and that she may dispose of the same as such. In sui^port of this position, 2 Kent’s Com. 164, and Jacques v. M. E. Church (17 Johns. 548) and other authorities are cited. But by a little further examination of the authority first cited (2 Kent’s Com. 165-6) it will be observed that Mr. Kent qualifies his language at page 164 by saying: “A feme covert with respect to her separate property is to be considered a feme sole sub modo only, or to the extent of the power clearly given her by the marriage settlement. Her power of disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power of appointment by will, she cannot appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract.” And in the same [197]*197connection the case of Jacques v. M. E. Church is carefully reviewed and its correctness questioned. (6 Wend. 10.)
The respondent, Mrs. Wheeler, in this case derived her title to the land in controversy from the Donation Law referred to; and when the same is conveyed away by her it must be done in strict pursuance of the provisions of the statute on that subject. (Carter v.
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By the Court,
Bonham, J. :
Two questions are presented by the record in this case.
First. Can a married woman in any event be held liable under her covenant, entered into during coverture, to convey real estate held by her in her own right?
Second. Upon the failure or refusal of such married woman to convey her lands under such covenant, may the aid of a Court of equity be invoked to compel money advanced on the purchase-price, and value of permanent improvements made on the premises, to be refunded?
[194]*194In support of the first proposition, it is claimed by counsel for appellant, that the right of a married woman to hold real estate in her own right carries with it as a necessary incident-the power of alienation.
If there is any plausible theory in support of such right in this State, its origin must be traced to this principle; for it is not derived from the common law, nor is it expressly authorized by any statutory provision. The doctrine that the right to alienate property results from the right to hold it, is maintained in general terms by good authority. (4 Kent’s Com. 441.)
But it will be observed by a perusal of the authority above cited in support of appellant’s position, that the author is discussing in general terms the grounds on which the right to alienate property is based, without any special reference to the rights of married women as a class. And when this author comes to speak directly of the rights of married women over their real property (2 Kent, 168), he says: “Though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a fine or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the Courts of equity never enforce such a contract against her. In the execution of a fine or other conveyance, the wife is privately examined, whether she act freely, and without such examination the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right.”
This principle, as enunciated by Mr. Kent, although in one sense a disability, -was not intended as a limitation of the rights of married women; but it was adopted for their protection and benefit.
Notwithstanding the doctrine which is so zealously promulgated by some (and which in some respects it is to be feared may be somewhat utopian in character), claiming an [195]*195enlargement of the rights of women, yet it is the generally received opinion that the sphere of married women’s duties, as they have been heretofore generally recognized and acquiesced in, precludes the means of acquiring by them that knowledge of law and commercial transactions necessary to enable them, as a rule, to safely and understanding^ enter into covenants concerning their real estate. The provision of our statute exempting married women from liability under their covenants in a deed must have had its origin, partly,’ at least, in this idea. (Mis. Laws, ch. 6, \ 2.)
But, be this as it may, it will not be controverted that, at common law, married women are not only held incompetent to enter into covenants to convey their real estate, but they are classified with those who are under disability to make any contract whatever; because the legal entity of the wife was held to be merged in that of the husband. And whether this disability of the common law, as applicable to married women, is calculated to operate beneficially to them, or. otherwise, is not the real question to be addressed to the Court in this case. The question to be determined is: What is the actual legal status of married women, as applicable to this ease, under the law on that subject as.it now exists?
The terms of the grant by which this property was- acquired by Mrs. Wheeler, simply provide that it is to be held by her in her own right. (§ 4, Donation Law.) No provision is made in the Act referred to for the voluntary alienation of the wife’s land acquired under it, other than “by testament duly and properly executed, according to the laws of Oregon.” (§ 4, Donation Law.) Section 2, ch. 6, Miscellaneous Laws, reads: “A husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried; but the wife shall not be bound by any covenant contained in such deed.”
This statute provides the manner in which the wife may convey her real estate, and we think by implication excludes every other manner except by devise. The manner as well [196]*196as the capacity to alienate lands is conventional, and is not a natural or inherent right. Because a married woman is allowed by law to hold lands in her own right, she would not be tolerated in conveying the same to others without any regard to the local laws on that subject.
It would not be seriously contended as a matter of practice, that under our law a person might, if he chose to do so, convey his land by the ancient mode of livery of seizin. Nor would it be claimed that a married woman might, if she chose, go into Court and revive the ancient practice of alienation by fine.
We do not think it was the intention of the framers of our Constitution and laws on this subject, to entirely segregate the proprietary interests of husband and wife and make them to all intents and purposes tioo instead of one in law. But on the other hand, might it not be fairly inferred from the language of the law and its contemporaneous history, that the prime object and controlling purpose was, to secure to the wife the right to hold such property as the means of the support of herself and family in the event that her legal protector and provider might fail, through misfortune, improvidence or death, to do so ?
It is also claimed by appellant that “it is a settled rule in equity that a feme covert in regard to her separate property is considered as a feme sole," and that she may dispose of the same as such. In sui^port of this position, 2 Kent’s Com. 164, and Jacques v. M. E. Church (17 Johns. 548) and other authorities are cited. But by a little further examination of the authority first cited (2 Kent’s Com. 165-6) it will be observed that Mr. Kent qualifies his language at page 164 by saying: “A feme covert with respect to her separate property is to be considered a feme sole sub modo only, or to the extent of the power clearly given her by the marriage settlement. Her power of disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power of appointment by will, she cannot appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract.” And in the same [197]*197connection the case of Jacques v. M. E. Church is carefully reviewed and its correctness questioned. (6 Wend. 10.)
The respondent, Mrs. Wheeler, in this case derived her title to the land in controversy from the Donation Law referred to; and when the same is conveyed away by her it must be done in strict pursuance of the provisions of the statute on that subject. (Carter v. Chapman, 2 Ogn. 93.) We are clearly of the opinion that, under our law as it now stands, Mrs. Wheeler is not bound by the terms of her covenant entered into with appellant, and that his prayer for a decree of specific performance under it cannot be granted.
The second proposition in this case involves the consideration of the question whether appellant is entitled to the alternative relief prayed for in complaint. The law exempting a married woman from liability on her covenants to convey her real estate, was adopted for her better security and protection; and we do not think that it would be equitable, or in harmony with public policy and good morals, for Courts of equity, in protecting the rights of persons, to encourage the perpetration of an actual fraud by them.
We think that the allegations of the complaint in this case, which, standing upon demurrer, are to be taken as confessed, warrant an implied assumpsit, at least, against Mrs. Wheeler for the value of the permanent improvements made upon her premises by appellant. And we think that the twenty dollars in money which was advanced to Mrs. Wheeler on account of her land, and the value of the permanent improvements made on the same (less the value of the use of the premises, if any), should be decreed to be a charge on said land until paid. (37 N. Y. 35 and cases there cited.)
It is therefore ordered and adjudged that the decree of the Court below be modified in accordance with these views; and that this cause be remanded to such Court for further proceedings, according to law.
Decree modified.