Munger v. Baldridge

41 Kan. 236

Opinion

The opinion of the court was delivered by

Johnston, J.:

By this action Julia P. Munger seeks to recover valuable real estate in the city of Wichita, which was formerly owned by D. S. Munger, her husband. He conveyed the same by warranty deed in 1877, which was executed by signing his own name thereto, and also that of his wife as her attorney in fact, under a power of attorney previously given by her. Long after the conveyance, and when the property has become valuable, she questions the validity of her own act, and now asserts that the power of attorney is invalid for want of capacity to make the same, and that it and the deed of conveyance are defective in form. She contends that by reason of being a married woman she was incapable of appointing her husband by letter of attorney as her agent to convey the inchoate interest which she held in her husband’s real estate. The arguments and authorities cited to sustain this view proceed upon the common-law theory that the marriage rendered the wife incapable of making contracts, and hence incapable of appointing an agent or attorney to act for her. These arguments and authorities are inapplicable in this state, where the disabling rules of the common law have been largely changed by the statute. By legislative enactment the wife has been placed on an equality with the husband in respect to holding, controlling and disposing of property which she may own at the time of the marriage or which may afterward be acquired by her. During coverture she is specifically empowered to carry on any trade or business, and perform any labor or service on her sole and separate account; she may sue and be sued in the same manner as if she were unmarried, and “may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same, in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.” (Comp. Laws of 1885, ch. 62, §§ 1, 2, 3,4.) While the unity of the husband and wife in the marital relation in a certain sense remains, these provisions have brushed away many of the disabilities of the wife under the common law; have recognized her individual existence, and conferred upon her distinct rights and powers respecting contract’s, the •carrying -on of business, the owning, controlling and disposing of property, equal to those held and enjoyed by the husband. She is clothed with power to manage her own affairs, and certainly has power to appoint an agent or attorney to do that which she is capable of doing in person. The' right of the husband to act as the agent of the wife and to contract with her has been repeatedly recognized by this court, and it has been held that the conveyance of real estate directly from the husband to the wife would be upheld so far as it was equitable to uphold the same. (Sproul v. National Bank, 22 Kas. 336; Horder v. Horder, 23 id. 391, and cases cited.)

In respect to conveying property, or any interest which she may hold therein, she stands on an equal footing with the husband and is governed by the same rule. No restrictions are placed upon the wife, and no other or different methods of conveying property, real or pei’sonal, are prescribed. As has been seen, she is in respect to property a distinct person, with distinct and separate rights from her husband, authorized to “ enter into any contract with reference to the same, in the same manner, to the same extent and with like effect as a married man in relation to his real and personal property.” At the same time the legislature provided the methods by which real estate should be conveyed, and the language used is general and applicable alike to all persons. It was enacted that “conveyances of land, or of any other estate or interest therein, may be made by deed executed by any person having authority to convey the same, or by his agent or attorney, and may be acknowledged and recorded as herein directed without any other act or ceremony whatever.” (Comp. Laws of 1885, ch. 22, § 3.) By § 7 of the same act it is provided that “all deeds or other conveyances of land, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his lawful agent or attorney, and may be acknowledged or proved and certified in the manner herein prescribed.” No distinction is made between the wife and any other person, either in the manner of execution or the acknowledgment of a conveyance of real estate. By virtue of this legislation the wife is undoubtedly authorized to convey any real estate or interest therein which she owns and which is subject to conveyance. It is equally clear that she is left free to select whomsoever she pleases as her agent or attorney for that purpose, and there is no reason why her husband may not act in that capacity. It is contended, however, that the wife cannot dispose of her inchoate interest in her husband’s real estate in this way. It is argued that she does not hold an estate or interest in the land, but a mere contingent right, which is not property, but is similar to the right of dower, which is not contemplated by the legislature in the acts referred to, and can only be transferred in the manner in which the right of dower was formerly transferred. The estate of dower has been expressly abolished by the legislature of Kansas, and an interest differing both in quantity and quality has been provided for the wife. It is true, as counsel suggests, that § 646' of the code, relating to the distribution of property when a divorce is granted, refers to the portion which the wife shall receive if she survives her husband, as a right of dower. But in Crane v. Fipps, 29 Kas. 585, it was decided that this provision was not intended to create the right of dower, and in the present state of the law was inoperative. The interest of the wife in the real estate of her husband during marriage is a contingent one, it is true, but it is unquestionably property, and no reason has been advanced why she may not empower the husband to act for her and in conjunction with himself convey it away. In Busenbark v. Busenbark, 33 Kas. 572, the nature of this interest was considered, and it was determined that while it was inchoate and uncertain it still possessed the elements of property which may be in connection with the husband the subject of contract and bargain, and was of such a character that the wife might during marriage maintain an action for its protection and for relief from fraudulent alienation by her husband. That it is an existing interest, and one which may be the subject of conveyance by the wife during marriage, is expressly recognized by the statute defining the same, as follows:

“ One-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts and of which tbe wife has made no conveyance, shall under the direction of the probate court be set apart by the executor as her property in fee simple upon the death of the husband if she survive him.” (Comp. Laws of 1885, ch. 33, § 8.)

1. Husband and wife-power of attorney. How shall this interest be conveyed ? If, as contended, it attaches to the estate of the husband and must be conveyed in conjunction with him, still it is the property of the wife, an interest in real estate, and the statute respecting conveyances makes no distinction between this and any other real property or interest therein which the wife may have. When it is admitted that it is property and an existing interest in real estate, the act respecting conveyances, already cited, certainly applies. Its provisions are broad and comprehensive, and authorize a conveyance by any person of any interest in real estate in the manner directed • and also that it may be done by any person through an agent or attorney. They apply to all persons, male and female, married and unmarried, and nothing in the law or its policy forbids that the husband should act as the agent or attorney of the wife in this respect, or which would exclude the conveyance of this interest from the ordinary rules .laid down in the statute. Nor is there any ground for the claim that the interest of the husband is adverse to that of the wife, making it improper for him to act in her behalf. The statutes of Kansas recognize no conflict of interest between them, nor any necessity to protect the wife against the act of the husband. They do not contemplate that she may be led to convey her interest through fear, compulsion, or the undue influence of her husband; and hence we have no enactment, as some states do, that in making a conveyance she must undergo a private examination by an officer to learn whether she is intimidated by her husband or is executing the conveyance against her will. On the contrary, the law proceeds upon the theory of confidence, good faith and honest dealing between husband and wife; and while there may be cases where the husband may take advantage of this confidence, yet it is almost as liable to occur through his obtaining her signature to the deed of conveyance as it would be in procuring from her a power of attorney authorizing him to convey the same property. We conclude that the wife • < i tit i ■ i . can appoint her husband as her agent and at- & torney m fact to convey the inchoate interest which she holds in his real estate, and that an instrument duly executed by himself and by him for her under such authority is effectual to transfer such interest.

section of The remaining objections made by the plaintiff in error are technical in their character, and under the circumstances of the case are not entitled to serious consideration. She claims that the power of attorney is invalid because the property authorized to be conveyed is not sufficiently described. The power granted is “to execute and acknowledge, sign, seal and deliver any deed or deeds for the conveyance or assurance of all my right, title and interest in and to any lands and tenements the title to which is in the said D. S. Munger, and in which I have any interest as being the wife of him, said D. S. Munger.” The language employed is sufficiently broad to include all lands owned’ by the husband at the time the letter was executed, and specific enough to authorize the conveyance of the land in controversy. The word “any” is to be taken in the broader sense, and includes all or any particular portion of the lands then owned by D. S. Munger. A detailed description oi the lands which he owned was unnecessary. A power of attorney is required to be recorded in the office of the register of deeds of the county in which the lands to be conveyed are situate• and the pleadings show that the power of attorney in the present case was recorded, in compliance with such statute, in Sedgwick county, where the lands in controversy lie, and this would authorize the sale of any land which D. S. Munger owned within that county. As the power authorized the sale of any lands the title to which was in D. S. Munger at a stated time, the lands intended to be conveyed can be definitely ascertained; and the rule is, that that is sufficiently certain which can be made certain. Whatever might be held in other cases and under other circumstances with respect to the sufficiency of such a description, it must be held sufficient as against the claim of the one who executes the power of attorney under which the land has been transferred through several hands, and where the party has stood by for many years, as the plaintiff has done, until the property has, become valuable, without questioning the validity of the instrument.

3 Power of atcient ackuowieagment. The acknowledgment of the power of attorney is said to be insufficient. The objection is that the officer taking the acknowledgment failed to certify that the person making the same was personally known to him as the person who executed the instrument. He does certify that Julia P. Munger is personally known “to me to be the identical person whose name is affixed to the foregoing instrument of writing as grantor, and duly acknowledges that she executed the same and for the purposes therein set forth.” This substantially complies with the requirements of the statute, and only a substantial compliance is required, jj. jg reqUire(j that the instrument shall be executed in the presence of the officer, nor is it material that he should know that the signature was written by the grantor, for if the grantor acknowledges before the officer the due execution of the instrument, he thereby recognizes and adopts the signature as his own.

4. rieaamg and practice. The final objection is, that the deed conveying the property was not legally acknowledged. The challenged portion of the certificate reads as follows: “Came D. S. Hunger and Julia P. Munger his wife, by D. S. Hunger, her attorney in fact, who are personally known to me to be the same persons who executed the foregoing instrument of writing, and duly acknowledged the execution of the same.” It might have been more explicit in stating that D. S. Hunger acknowledged the execution of the deed for himself, and also in his representative capacity for his principal, Julia P. Hunger. But as the plural form of expression is used, it plainly implies an acknowledgment in both his individual and representative capacities, and that in the latter capacity he acknowledged the deed as the act of his principal, who was named in the certificate- The sufficiency of the acknowledgment, however, was not properly raised by the demurrer, as the certificate of acknowledgment is not essential to the validity of the instrument. It is simply evidence of the execution of the deed, and where the certificate is absent the execution may be established by other proof. An unacknowledged deed passes title equally with one duly acknowledged and certified; but of course it would not be admitted in evidence upon the trial until its execution was shown by competent testimony. The question of the sufficiency of the certificate of acknowledgment can only be raised wheu the deed is offered in evidence; and if it is found to be defective, it can then be supplied by direct proof of execution. (Gray v. Ulrich, 8 Kas. 122; Arn v. Matthews, 39 id. 274.) The execution of the conveyance, however, was alleged in the answer and admitted by the demurrer, and hence the certificate of acknowledgment is of no consequence at this time.

The judgment of the district court will be affirmed.

All the Justices concurring.