Whiting v. Stevens

4 Conn. 44

Opinion

Hosmer, Ch. J.

in stating the case, remarked, that although it did not explicitly appear on the motion, yet from the course of argument pursued, he should take it for granted, that the condition of Langmuir, at the time of receiving his deed from Coolidge, remained the same as it was, when the deed to Coolidge was executed. He then gave his opinion as follows.

It admits of no doubt, under our law concerning the alienation of real property, by a married woman,

(d) that a deed, duly executed by her jointly with her husband, is competent to convey all the estate of which she is seised. Without his consent, evinced by his uniting with her in the deed, she cannot convey any part of her lands; but with it, she has a legal capacity in respect of the property granted; while his execution of the deed transfers all the title which appertains to him. Whether he is a native citizen, and has an estate of freehold, or is an alien, having merely an usufructuary right, can make no difference as to the effect of their joint deed. The assent of the husband, testified by his joining in the deed, gives his wife a legal capacity of transmitting her property; and, it is on this principle, that her deed is effectual for that purpose. If he is an alien, incapable of acquiring a right in the lands of his wife, by the act of marriage, he, by his deed, conveys no part of the title; but uniting with her, she is not the less competent to convey the estate; and, if he has no legal title, to convey the whole of it.

The supposition, that the deed to Coolidge was intended as a testamentary disposition, for the benefit of Alexander Langmuir, is too unfounded to require observation. There are no facts presented, evincive of such an intention; and this is decisive.

As little reason is there for the assertion, that the deed of conveyance to Coolidge was in trust for the benefit of Alexander Langmuir, or, if such were the fact, for pronouncing it invalid. There is no trust expressed in the deed; nor can any be implied from the nature of the transaction. But, if the conveyance had been expressly on the trust supposed, the legal estate would have vested in Coolidge; and the trust, at least, might be enforced, on the naturalization of Lungmuir. Jackson d. Culverhouse v. Beach, 1 Johns. Ca. 399. In all events, the title would have been conveyed to Coolidge; and this is fatal to the plaintiff's claim.

To express an opinion on the other points argued in this case, is entirely unnecessary. Sufficient is it, that the plaintiff has no title. Whether Alexander Langmuir obtained one, by the deed of Coolidge, or was inhibited from purchasing, by the statute concerning aliens, it is unnecessary to determine.

The other Judges were of the same opinion.

New trial not to be granted.

Stat. 304. s. 14.