Manchester v. Hough

16 F. Cas. 572, 5 Mason C.C. 67

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: June 15, 1828
• Status: Published

Opinion

STORY, Circuit Justice.

This case depends upon the validity of the conveyances made of the wife’s estate by herself and her late husband, by the deeds of 1797 and 1799. It is admitted, that the latter deed cannot bind the wife according to the statute of Rhode Island of 1798, § 7 (Dig. 1799, p. 207), because she has not been examined privily and apart from her husband, and made an acknowledgment, that the deed was her voluntary act, and that she did not wish to retract the same, before the magistrate taking the acknowledgment. Without-a compliance with these requisites, the statute declares, that the deed shall not operate to convey any greater estate in the premises, than what belongs to the husband. The validity of the other conveyance in 1797 turns upon the question, whether, by the common or customary law of Rhode Island, a feme covert can convey her real estate by deed, her husband joining in the deed. It is not denied, that this was in Rhode Island the usual mode of conveying her estate ante-cedently to the statute of 179S; and that it had prevailed without objection and without question for a great length of time; and that this is the first time, in which it has been judicially brought into controversy. Conveyances by fine or common recovery of the estates of femes covert may have sometimes been resorted to by very cautious persons; but the general practice in Rhode Island has been, as I have .stated. Many titles have passed, and many titles are now held exclusively under such conveyances. And to shake their validity would at this period be productive of incalculable mis-chiefs. If there ever was a case, in which the doctrine might be fairly applied, that com-munis error facit jus, the present is that case. In truth, from an early period in the history of New England, the right of a feme covert to convey her real estate by deed with the assent of her husband was recognized, and has been constantly enforced by courts of law. It now' constitutes a part of the common law of New England. See Fowler v. Shearer, 7 Mass. 14; Dudley v. Sumner, 5 Mass. 403; Colcord v. Swan, 7 Mass. 291. It probably originated in the necessities of the country at an early period of its settlement, when fines and recoveries were little known; or if known, courts were rarely held, and understood little of the proper mode of proceeding. The same necessity has produced a similar result in other parts of the Union. See Lessee of Lloyd v. Taylor, 1 Dall. [1 U. S.] 17; Davy v. Turner, Id. 11. The act of 179S can be justly considered in no other light, than as a legislative sanction and recognition of the right and the practice. My opinion accordingly is, that the deed of 1797 is sufficient to pass the estate of the feme covert to the premises described therein.

Verdict accordingly.