Perkins, J.
Petition by Baalis Johnson and Sarah Ann, his wife, for partition of lots 98, and 3 and'4, in Lafayette. The petition is against Rockwell, Hamer, and Johnson. The facts are somewhat numerous and complicated, and present several questions. The proceeding was instituted in November, 1848.
It appears that, by an antenuptial contract, said Sarah . Ann Johnson secured to her separate use the property of which she was possessed before and at marriage. The property was conveyed to a trustee, subject to her unlimited control. A portion of that property she exchanged, after she was married, for lots 3 and 4, above mentioned. The conveyance of them was to her separately, and not jointly with her husband. They became, therefore, her separate property, alike subject, at least in equity, to her control, as was that which was given in exchange for them. Glancy’s Husband and Wife, 272, 612.
It appears that lot 98, above mentioned, was the property of Mary E. Hamer, a daughter of said Sarah Ann Johnson by a former husband, and who, while an infant, married Jonathan R. Rockwell. Afterwards, and while said Mary E. was still an infant, she and her husband jointly conveyed [78]*78l0t 98 to Francis V. and Baalis D. Johnson, infant children of appellants, in consideration of the conveyance by said appellants, Baalis Johnson, and Sarah Ann, his wife, of said lots 3 and 4 to said Jonathan R. Rockwell, and the sum of 500 dollars paid to said Baalis Johnson by said Mary E. Hamer (then Rockwell).
On the 26th of December, 1846, Mary E. Hamer (then Rockwell) died 'childless, being the day on which she arrived at majority. She left, as her only heirs, Sarah Ann Johnson, the female appellant, Thomas F. Hamer, a brother, and Ruth Ann Clark, a niece.
Said Thomas F. Hamer released his interest to said Sarah Ann Johnson. He denied the validity of the deed,on the ground of mental incapacity, produced by intemperance; but the Court ruled against him, and rightly. Lewis v. Baird, 3 McLean, 56.—Achey v. Stephens, 8 Ind. R. 411. It was not made to appear that, at the time he executed the deed, he was incompetent to perform the act. It should have thus appeared.
Baalis D. Johnson died leaving no issue, but leaving a sister and appellants, his heirs.
Ruth Arm Clark died leaving no issue, but leaving as her sole heir, Thomas F. Hamer.
It thus appears that the parties to this suit have become the only ones interested in the property involved.
The Court below set aside the deeds from Johnson and wife to Rockwell, and from Rockwell and wife to Johnson.
We will examine the rulings upon these points.
First. Of the deed of Johnson and wife to Rockwell. It is in the following form: “ This indenture, made this third day of April, A. D. 1846, between Baalis Johnson and Sarah Ann Johnson, his wife, of, &c., of the first part, and Jonathan R. Rockwell, of, &c., of the second part, witnesseth: That the parties of the first part (Johnson and his wife), do hereby, in consideration of the sum of nine hundred dollars, grant, bargain, sell, and convey unto the party of the second part, his heirs and assigns forever, all those certain tracts or parcels of lands, &c., viz.: lots three and four in William Barbee’s addition to the town of Lafayette, to [79]*79have and to hold the premises and appurtenances above described to the said party of the second part (Rockiuell), his heirs and assigns forever. And the said Baalis Johnson, and Sarah Ann, his wife, for themselves, &c., covenant and agree with the said Jonathan R. Rockwell, his heirs, executors, administrators, and assigns, that they (the grantors) are lawfully seized in fee of the premises granted; that they are the true and lawful owners of the same, and that they, for themselves, their heirs, &c., will warrant and forever defend the premises above described, with their appurtenances, unto the party of the second part (Rockiuell), his heirs and assigns forever, against all claims of any person or persons whatever; and the said Sarah Ann, wife of the said Baalis, hereby relinquishes all her right, title, and claim to dower, in said premises.”
The deed is executed and acknowledged by Baalis and Sarah Ann Johnson. The acknowledgment is in the usual form, stating the separate examination of the wife, the explanation of the deed, the acknowledgment of its free execution for the uses and purposes expressed, and that she thereby relinquished all right, &c., of dower.
It is contended that this deed is void, and conveyed nothing.
The deed is good in point of form—it is sufficient upon its face. In its operative parts it conveys the fee simple. The concluding clause, assuming to state the legal effect of the conveyance, as to one of the grantors, is immaterial, mere surplusage, and does not vitiate the deed. The use of the word dower is a mere misnomer, both in the deed and acknowledgment, as is evident from the whole instrument, and could not mislead any one, nor limit the legal operation of the deed. Ostrander v. Spickard, 8 Blackf. 227.
It was competent for the wife, with the consent of her husband, to make a conveyance of her separate real property. Reese v. Cochran, 10 Ind. R. 195.—R. S. 1843, p. 417.—Reeve’s Dom. Rel., p. 112. “In transactions between husband and wife, relative to the separate estate of the latter, she, prima facie, will be viewed in the light [80]*800f a feme sole, and, as such, be competent to dispose of it to him, or for his use, subject to proof of fraud or undue influence on his part.” 2 Bright on Husband and Wife, p. 257. The conveyance must be made through third persons. Resor v. Resor, 9 Ind. R. 347. Since the wife may appoint and -dispose of her separate property as a feme sole, so she may give it to, or permit her husband to receive it, which will preclude her right, after his death, to charge his estate with what he so received. Bright, supra, p. 259. See Reeve’s Dom. Rel., p. 98, et seq.; 1 Dan. Ch. Pr. (Perk, ed.) 121. In this case, there is no proof of fraud. The consideration paid was adequate, and went to the uses designated by Mrs. Johnson.
Secondly. Of the deed from Rockwell and wife to the infant children of the said Baalis and Sarah Ann Johnson. The questions upon this, are varied from those upon the deed of Johnson and wife, in this particular only, viz., ihat Mrs. Rockwell was an infant at the time the deed was made.
Upon this point, counsel for Rockwell argue thus:
“The deed from Rockwell and wife to the children of the complainants is not deficient in form or substance. The code of 1843, which governs the case, (p. 417, § 17,) provides that the joint deed of the husband and wife, upon complying with the provisions of § 40, of the same chapter, should be sufficient to convey and pass the real estate of the wife, but not to bind her to any contract or estoppel therein.
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Perkins, J.
Petition by Baalis Johnson and Sarah Ann, his wife, for partition of lots 98, and 3 and'4, in Lafayette. The petition is against Rockwell, Hamer, and Johnson. The facts are somewhat numerous and complicated, and present several questions. The proceeding was instituted in November, 1848.
It appears that, by an antenuptial contract, said Sarah . Ann Johnson secured to her separate use the property of which she was possessed before and at marriage. The property was conveyed to a trustee, subject to her unlimited control. A portion of that property she exchanged, after she was married, for lots 3 and 4, above mentioned. The conveyance of them was to her separately, and not jointly with her husband. They became, therefore, her separate property, alike subject, at least in equity, to her control, as was that which was given in exchange for them. Glancy’s Husband and Wife, 272, 612.
It appears that lot 98, above mentioned, was the property of Mary E. Hamer, a daughter of said Sarah Ann Johnson by a former husband, and who, while an infant, married Jonathan R. Rockwell. Afterwards, and while said Mary E. was still an infant, she and her husband jointly conveyed [78]*78l0t 98 to Francis V. and Baalis D. Johnson, infant children of appellants, in consideration of the conveyance by said appellants, Baalis Johnson, and Sarah Ann, his wife, of said lots 3 and 4 to said Jonathan R. Rockwell, and the sum of 500 dollars paid to said Baalis Johnson by said Mary E. Hamer (then Rockwell).
On the 26th of December, 1846, Mary E. Hamer (then Rockwell) died 'childless, being the day on which she arrived at majority. She left, as her only heirs, Sarah Ann Johnson, the female appellant, Thomas F. Hamer, a brother, and Ruth Ann Clark, a niece.
Said Thomas F. Hamer released his interest to said Sarah Ann Johnson. He denied the validity of the deed,on the ground of mental incapacity, produced by intemperance; but the Court ruled against him, and rightly. Lewis v. Baird, 3 McLean, 56.—Achey v. Stephens, 8 Ind. R. 411. It was not made to appear that, at the time he executed the deed, he was incompetent to perform the act. It should have thus appeared.
Baalis D. Johnson died leaving no issue, but leaving a sister and appellants, his heirs.
Ruth Arm Clark died leaving no issue, but leaving as her sole heir, Thomas F. Hamer.
It thus appears that the parties to this suit have become the only ones interested in the property involved.
The Court below set aside the deeds from Johnson and wife to Rockwell, and from Rockwell and wife to Johnson.
We will examine the rulings upon these points.
First. Of the deed of Johnson and wife to Rockwell. It is in the following form: “ This indenture, made this third day of April, A. D. 1846, between Baalis Johnson and Sarah Ann Johnson, his wife, of, &c., of the first part, and Jonathan R. Rockwell, of, &c., of the second part, witnesseth: That the parties of the first part (Johnson and his wife), do hereby, in consideration of the sum of nine hundred dollars, grant, bargain, sell, and convey unto the party of the second part, his heirs and assigns forever, all those certain tracts or parcels of lands, &c., viz.: lots three and four in William Barbee’s addition to the town of Lafayette, to [79]*79have and to hold the premises and appurtenances above described to the said party of the second part (Rockiuell), his heirs and assigns forever. And the said Baalis Johnson, and Sarah Ann, his wife, for themselves, &c., covenant and agree with the said Jonathan R. Rockwell, his heirs, executors, administrators, and assigns, that they (the grantors) are lawfully seized in fee of the premises granted; that they are the true and lawful owners of the same, and that they, for themselves, their heirs, &c., will warrant and forever defend the premises above described, with their appurtenances, unto the party of the second part (Rockiuell), his heirs and assigns forever, against all claims of any person or persons whatever; and the said Sarah Ann, wife of the said Baalis, hereby relinquishes all her right, title, and claim to dower, in said premises.”
The deed is executed and acknowledged by Baalis and Sarah Ann Johnson. The acknowledgment is in the usual form, stating the separate examination of the wife, the explanation of the deed, the acknowledgment of its free execution for the uses and purposes expressed, and that she thereby relinquished all right, &c., of dower.
It is contended that this deed is void, and conveyed nothing.
The deed is good in point of form—it is sufficient upon its face. In its operative parts it conveys the fee simple. The concluding clause, assuming to state the legal effect of the conveyance, as to one of the grantors, is immaterial, mere surplusage, and does not vitiate the deed. The use of the word dower is a mere misnomer, both in the deed and acknowledgment, as is evident from the whole instrument, and could not mislead any one, nor limit the legal operation of the deed. Ostrander v. Spickard, 8 Blackf. 227.
It was competent for the wife, with the consent of her husband, to make a conveyance of her separate real property. Reese v. Cochran, 10 Ind. R. 195.—R. S. 1843, p. 417.—Reeve’s Dom. Rel., p. 112. “In transactions between husband and wife, relative to the separate estate of the latter, she, prima facie, will be viewed in the light [80]*800f a feme sole, and, as such, be competent to dispose of it to him, or for his use, subject to proof of fraud or undue influence on his part.” 2 Bright on Husband and Wife, p. 257. The conveyance must be made through third persons. Resor v. Resor, 9 Ind. R. 347. Since the wife may appoint and -dispose of her separate property as a feme sole, so she may give it to, or permit her husband to receive it, which will preclude her right, after his death, to charge his estate with what he so received. Bright, supra, p. 259. See Reeve’s Dom. Rel., p. 98, et seq.; 1 Dan. Ch. Pr. (Perk, ed.) 121. In this case, there is no proof of fraud. The consideration paid was adequate, and went to the uses designated by Mrs. Johnson.
Secondly. Of the deed from Rockwell and wife to the infant children of the said Baalis and Sarah Ann Johnson. The questions upon this, are varied from those upon the deed of Johnson and wife, in this particular only, viz., ihat Mrs. Rockwell was an infant at the time the deed was made.
Upon this point, counsel for Rockwell argue thus:
“The deed from Rockwell and wife to the children of the complainants is not deficient in form or substance. The code of 1843, which governs the case, (p. 417, § 17,) provides that the joint deed of the husband and wife, upon complying with the provisions of § 40, of the same chapter, should be sufficient to convey and pass the real estate of the wife, but not to bind her to any contract or estoppel therein. In the execution of the deed, the provisions of § 40 were strictly complied with. The statute refers to all married women, making no discrimination between adults and minors, but, alike, places their real estate under the guardianship of the husband. That such was the intention of the legislature, becomes the more manifest from the fact that § 41 of the same act provides that a married woman, under the age of twenty-one years, cannot release dower in her husband’s lands, without the sanction of her guardian or father, and omits to apply the same rule where the lands of the wife are conveyed. The stat[81]*81ute is clear, and not open to a construction different from that above given to it. Very plainly, ita lex scripta est.”
R. C. Gregory, R. Jones, J. M. La Rue, and W. O. Deming, for the appellants (1).
J. Pettit, S. A. Huff, and Z. Baird, for the appellees (2).
This argument is plausible—the position assumed may be correct; but there is another ground on which we prefer to rest the case.
The conveyance of real property by an infant, is not void; it is only voidable. Pitcher v. Laycock, 7 Ind. R. 398. And where the contract for the conveyance is with an adult, such adult person is bound, and cannot avoid the contract on account of the infancy of the other contracting party. Reeve’s Dom. Rel. 343. Where the contract is one absolutely void, neither party is bound.
Here the contract was only voidable, and .is now, in reality, sought to be avoided by the adult party; for the conveyance of the Rockwells, now sought to be avoided, was executed in fulfillment of a contract with said Sarah Ann Johnson.
Again: Mrs. Johnson, the mother of the infant grantor, approved of the conveyance when made by the infant, and would be estopped now, as heir, to seek to avoid it on account of the infancy.
Per 'Curiam.'
The judgment is reversed with costs. Cause remanded for further proceedings in accordance with this opinion.