Burnett, J.,
delivered the opinion of the Court—Murray, C. J., concurring.
The points made by counsel, arise under the fourteenth section of the eleventh article of the Constitution of this State, and the act of the Legislature of the seventeenth of April, 1850, defining the rights of husband and wife. The questions involved are of no ordinary difficulty, and are important in their character.
At common law,'the civil existence of the wife was merged in that of her husband; she could make no contract. But in equity she was treated as a feme sole, in respect to her separate property. In reference to the mere mode in which she could dispose of her separate estate, there has existed much difference of opinion. Chancellor Kent, in the great case of the Methodist Episcopal Church v. Jaques, (3 Johns. Chancery Rep., 78,) held that a married woman, as to her separate property, was not to be deemed a feme sole, but a feme sole sub modo. The case was reviewed in the Court of Errors, and the opinion of the chancellor was not sustained. It was settled in that case, that a feme covert, as to her separate property, was to be considered in equity, as a feme sole, with the absolute right of disposition incident to that state, without the consent of the trustee, unless specially restrained by the instrument under which she held her separate estate. It was also held that, though a particular mode was specifically pointed out, it would not prevent the wife from adopting any other mode of disposition, unless she was specially confined to that mode by the terms of the deed itself. (17 Johns. R., 548, 2 Kent’s Comm., 166.) The same doctrine is held in the case of Vanderhien v. Mallory, (22 Wend., 526,) and also in the case of Ewing v. Smith. (3 Dess. R., 477).
The fourteenth section of the eleventh article of our constitution, is taken from the Constitution of Texas. There is, however, a clerical or typographical error in the published copy of our Constitution, in the use of the phrase “ by marriage,” instead of “ by her, before marriage,”
The Texas Reports contain many cases very elaborately and ably discussed; some of these cases arose under the act of the Republic of January 20,1840, and others under the Constitution of that State, and the act of the Legislature of March 13,1848. (Hartley’s Digest, pp. 734-8.) The provisions of the two acts are very different in some respects; and the provisions of both the Texas statutes are very different in some respects from our own statute.
The first question that properly arises, is this: What capacity [271]*271does the Constitution confer upon a married woman, in respect to her separate property, and what incidents necessarily belong to such capacity?
In the case of Edrington v. Mayfield, (5 Texas R., 363,) it was said by Chief Justice Hemphill, in delivering the opinion of the Court, that the capacity of the wife “ to hold property, separate and apart from her husband, is as complete and perfect as that of the husband to hold in his own right, separate and apart from his wife. There is not the slightest difference in this particular, between their civil rights and capacities.” The correctness of this position is further shown by the first section of our statute, which makes the capacity of husband and wife, as to their separate property, the same in both. The capacity of the wife to hold her separate property being equal to that of the husband, or of any other individual, the same incidents necessarily attach to her capacity, as to that of the husband. The Legislature, therefore, can pass no act impairing her rights, any more than the rights of the husband. They are both protected alike.
The counsel for the defendant assumes, substantially, that the capacity of the wife is created by the statute; and that she can only acquire that capacity by strictly complying with the provisions of the third, fourth, and fifth sections, in the same way that a feme sole trader does, by complying with the statute creating that capacity. And he insists, that until the property is properly inventoried, it is not separate property within the meaning of the act, and is subject to the disposition of the husband.
This position would seem to be incorrect. The capacity of the wife is created by the Constitution, and her title to her separate estate depends alone upon the mode of its acquisition, and vests in her before the inventory can be filed.
The counsel also insists, that “ the wife may relinquish the benefits and enabling provisions of the law, and the purchaser by this act, and the omission to record, is assured of her intention not to claim the benefit of the law.” There certainly is much plausibility in this position. In reference to real estate, the record would always show title out of the husband; and the diligent creditor or purchaser would be as well protected without the inventory as with it, if it was the intention of the statute only to give notice of the title of the wife, and not of her intention to avail herself of the enabling provisions of the statute. But this reasoning would not apply to the personal property of the wife, and the statute nowhere distinguishes between the two kinds of property, except in the fourth section, and this only for the purpose of requiring the inventory to be recorded in each county where the real estate is situated. That the inventory was intended to include both the real and personal property of the wife is clear; not only because the statute makes no distinc[272]*272tion between the two, but because the inventory must, in all cases, be recorded in the county in which the parties reside. And although the fourth section may require that to be done which is not strictly necessary for the protection of others, still, the language of the statute would seem to show the intention of the Legislature to make the filing of the inventory notice, not of the wife’s intention to continue to assert her right, but of the claim itself; in other words, it was intended to give notice of what property the wife claimed to have owned before marriage, or acquired afterwards by gift, bequest, or devise. And the fifth section is express, that the filing of the inventory shall be “ notice of the title of the wife,” and the effect of this notice is, that all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of the husband.” .
Now, whether a failure to file the inventory, would make a sale by the husband alone of the wife’s personal property valid in the hands of an innocent purchaser, is a question not involved in this case, as both Wells and the defendant knew that the stock was the separate property of the wife. The mistake they made was one of law and not of fact.
From the position that the capacity of the wife, as to her separate property, is equal to that of the husband, as to his separate property, very grave doubts may exist as to the validity of some óf the provisions of our statute. In the case cited from 5 Texas Rep., 363, it was said by the Chief Justice, that “ the Legislature possesses no constitutional power, to declare that the title of the wife to her property shall be divested for want of registration, nor, for that reason, it shall be subjected to the debts of the husband, or of any other person whomsoever.”
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Burnett, J.,
delivered the opinion of the Court—Murray, C. J., concurring.
The points made by counsel, arise under the fourteenth section of the eleventh article of the Constitution of this State, and the act of the Legislature of the seventeenth of April, 1850, defining the rights of husband and wife. The questions involved are of no ordinary difficulty, and are important in their character.
At common law,'the civil existence of the wife was merged in that of her husband; she could make no contract. But in equity she was treated as a feme sole, in respect to her separate property. In reference to the mere mode in which she could dispose of her separate estate, there has existed much difference of opinion. Chancellor Kent, in the great case of the Methodist Episcopal Church v. Jaques, (3 Johns. Chancery Rep., 78,) held that a married woman, as to her separate property, was not to be deemed a feme sole, but a feme sole sub modo. The case was reviewed in the Court of Errors, and the opinion of the chancellor was not sustained. It was settled in that case, that a feme covert, as to her separate property, was to be considered in equity, as a feme sole, with the absolute right of disposition incident to that state, without the consent of the trustee, unless specially restrained by the instrument under which she held her separate estate. It was also held that, though a particular mode was specifically pointed out, it would not prevent the wife from adopting any other mode of disposition, unless she was specially confined to that mode by the terms of the deed itself. (17 Johns. R., 548, 2 Kent’s Comm., 166.) The same doctrine is held in the case of Vanderhien v. Mallory, (22 Wend., 526,) and also in the case of Ewing v. Smith. (3 Dess. R., 477).
The fourteenth section of the eleventh article of our constitution, is taken from the Constitution of Texas. There is, however, a clerical or typographical error in the published copy of our Constitution, in the use of the phrase “ by marriage,” instead of “ by her, before marriage,”
The Texas Reports contain many cases very elaborately and ably discussed; some of these cases arose under the act of the Republic of January 20,1840, and others under the Constitution of that State, and the act of the Legislature of March 13,1848. (Hartley’s Digest, pp. 734-8.) The provisions of the two acts are very different in some respects; and the provisions of both the Texas statutes are very different in some respects from our own statute.
The first question that properly arises, is this: What capacity [271]*271does the Constitution confer upon a married woman, in respect to her separate property, and what incidents necessarily belong to such capacity?
In the case of Edrington v. Mayfield, (5 Texas R., 363,) it was said by Chief Justice Hemphill, in delivering the opinion of the Court, that the capacity of the wife “ to hold property, separate and apart from her husband, is as complete and perfect as that of the husband to hold in his own right, separate and apart from his wife. There is not the slightest difference in this particular, between their civil rights and capacities.” The correctness of this position is further shown by the first section of our statute, which makes the capacity of husband and wife, as to their separate property, the same in both. The capacity of the wife to hold her separate property being equal to that of the husband, or of any other individual, the same incidents necessarily attach to her capacity, as to that of the husband. The Legislature, therefore, can pass no act impairing her rights, any more than the rights of the husband. They are both protected alike.
The counsel for the defendant assumes, substantially, that the capacity of the wife is created by the statute; and that she can only acquire that capacity by strictly complying with the provisions of the third, fourth, and fifth sections, in the same way that a feme sole trader does, by complying with the statute creating that capacity. And he insists, that until the property is properly inventoried, it is not separate property within the meaning of the act, and is subject to the disposition of the husband.
This position would seem to be incorrect. The capacity of the wife is created by the Constitution, and her title to her separate estate depends alone upon the mode of its acquisition, and vests in her before the inventory can be filed.
The counsel also insists, that “ the wife may relinquish the benefits and enabling provisions of the law, and the purchaser by this act, and the omission to record, is assured of her intention not to claim the benefit of the law.” There certainly is much plausibility in this position. In reference to real estate, the record would always show title out of the husband; and the diligent creditor or purchaser would be as well protected without the inventory as with it, if it was the intention of the statute only to give notice of the title of the wife, and not of her intention to avail herself of the enabling provisions of the statute. But this reasoning would not apply to the personal property of the wife, and the statute nowhere distinguishes between the two kinds of property, except in the fourth section, and this only for the purpose of requiring the inventory to be recorded in each county where the real estate is situated. That the inventory was intended to include both the real and personal property of the wife is clear; not only because the statute makes no distinc[272]*272tion between the two, but because the inventory must, in all cases, be recorded in the county in which the parties reside. And although the fourth section may require that to be done which is not strictly necessary for the protection of others, still, the language of the statute would seem to show the intention of the Legislature to make the filing of the inventory notice, not of the wife’s intention to continue to assert her right, but of the claim itself; in other words, it was intended to give notice of what property the wife claimed to have owned before marriage, or acquired afterwards by gift, bequest, or devise. And the fifth section is express, that the filing of the inventory shall be “ notice of the title of the wife,” and the effect of this notice is, that all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of the husband.” .
Now, whether a failure to file the inventory, would make a sale by the husband alone of the wife’s personal property valid in the hands of an innocent purchaser, is a question not involved in this case, as both Wells and the defendant knew that the stock was the separate property of the wife. The mistake they made was one of law and not of fact.
From the position that the capacity of the wife, as to her separate property, is equal to that of the husband, as to his separate property, very grave doubts may exist as to the validity of some óf the provisions of our statute. In the case cited from 5 Texas Rep., 363, it was said by the Chief Justice, that “ the Legislature possesses no constitutional power, to declare that the title of the wife to her property shall be divested for want of registration, nor, for that reason, it shall be subjected to the debts of the husband, or of any other person whomsoever.”
A more serious doubt may exist, it would seem, as to the validity of the ninth section, the provisions of which give the husband the absolute power of disposition of the common property, and make the rents and profits of the separate property, of both husband and wife common property. The substance of this section is to give all the rents and profits of the wife’s separate property to the husband, leaving her only a reversionary interest. The value of property consists mostly in the rents and profits; and when by the act, the husband has the absolute power of disposition of these rents and profits, without the consent of the wife, what becomes of her right of property in her separate estate during the coverture ? And it may also be doubted whether that portion of the sixth section, which requires the signature of the husband to make a valid sale, or to create an incumbrance upon the separate property, can be sustained. She is given no power by law over the will of her husband, and to make his consent necessary to the sale and use of that which is exclusively hers, would seem inconsistent with the capacity conferred upon her by the Constitution itself. But as these ques-[273]*273lions do not necessarily arise in this case, no express decision is required, and none made.
The next question that arises in this case is, whether a valid sale of the personal property of the wife can only be made by her in the mode provided in the sixth section of our statute.
The main object of that section is the protection of the wife against the influence of the husband, and to secure her perfect freedom of will in the disposition of her separate property; and as that is the end to be attained, was it the intention of the Legislature simply to provide a more easy and stable mode of proof as to the wife’s freedom-of will, or was it also the intention to make the privy examination of the wife the only mode of ascertaining that fact, and the certificate of the officer the only proof of it ? It certainly may be said, with much apparent reason, that the protection of the wife was the main intent—that her freedom of will must exist in fact, to constitute a valid transfer —that allowing her to undergo this privy examination gives protection, as well to the purchaser as to her, for it furnishes him with a mode of proof conclusive in its character, and not liable to be lost, like oral testimony—that protection to the purchaser is for her advantage, as it enables her to sell the more readily— and that the main intent of the statute would be better accomplished by allowing her to sell in other modes, as well as in the mode provided.
The case of Wo Mock v. Wo Mock, 8 Texas Rep., 397, is referred to by the counsel for the defendant, and has an important bearing upon this case. The bill of sale of a slave, the separate property of the wife, was executed in 1850, by Wo Mock and wife, but not acknowledged by her in the manner prescribed by the statute of that State, passed in 1846. The first section of the act specifies the mode in which the separate property of the wife may be conveyed, and requiring her separate examination, and then provides “ that such deed or convejrance, so certified, shall pass all the right, title, and interest, which the husband and wife, or either of them, may have in and to the property therein conveyed.” Hartley’s Digest, p. 131, Art. 174.
This statute nowhere restrains the wife to the very mode specified; it only declares a conveyance made in that mode to be sufficient. And this was the argument of counsel, referring to the case of Jaques v. the Methodist Episcopal Church, 17 Johns. Rep., 548, and in delivering the opinion of the Court, the Chief Justice says;
“The statute which prescribes the mode of conveying the wife’s property, does not declare absolutely void any other mode of conveyance. It seems, from its terms, to have had but one object in view, and that was to secure the freedom of will and action on the part of the married woman. Now,” continues he, “ although there was no privy examination in this case, yet the [274]*274facts show that there was the most perfect freedom on the part of the wife.”
This opinion seems to be in conflict with the previous case of Callahan v. Patterson, 4 Texas Rep., 61, where it was expressly held that the privy examination of the wife, was indispensable to the conveyance of her separate property.
The result of the leading cases seems to be this : that in equity, unless the instrument under which the wife holds her separate property—and, in Texas, the statute contains “ negative words, restraining her power of disposition, except in the very mode pointed out”—she may adopt any other mode; but in case such negative words are used, then she can only convey in the specific mode provided.
Our statute provides, that “ no sale or other alienation of any part of the wife’s separate property can be made, nor any lien or incumbrance created thereon,” unless by writing, signed and acknowledged in the manner pointed out by the statute itself. And while the statute does not say, in express terms, that all sales and incumbrances, except those made in the mode specified, shall be void, it does use negative words, conveying substantially the same meaning. And that the statute intended to embrace both the real and personal property of the wife, would seem to admit of but little doubt; the language is so broad as to include all; the intent of the act is to include both the real and personal estate in the inventory, and also in the instrument of sale, and if the sixth section does not embrace the personal property of the wife, then it would be unnecessary, as the statute concerning conveyances provides the mode in which a wife may convey her real estate.
There was certainly good reason for securing the freedom of the wife's will and action, as well in respect to her personal as real estate. The increasing imp) or tan ce of the personalty in modern times, renders this the more necessary. It is true, the statute imptoses troublesome conditions upon the wife, but they are intended for her benefit; she can to some extent avoid the inconvenience of the privy examination, in the sale of every article of personal property, by executing a power of attorney.
It seems to have been the intention of our statute to provide a mode of alienation, at once simpfle and conclusive, and which would equally pmotect the wife and the pmrehaser. And if the Courts should sustain sales or incumbrances, made or created in any other mode than the one provided, it would soon destroy the simplicity and efficiency of the rule itself. We should soon be called upon to decide that the privy examination of a married woman was unnecessary to convey her real estate, for the same reason would apply in the one case as in the other, except that the language of the sixth section of the act defining the rights [275]*275of husband and wife, is in terms stronger than that of the statute concerning conveyances.
That the acknowledgment is a necessary part of the conveyance of the real estate of a married woman, there can be no doubt. Up to the last moment she may retract the execution of the deed. Mason v. Brock, 12 Ills., R. 276; and Marvin v. Saunders, 5 Gil., 113. In the last case, the Court says: “ Without such acknowledgement, the deed was absolutely void.” Defective deeds and acknowledgements of married women cannot be reformed, even in chancery.
The judgment of the Court below is therefore affirmed.