Humphrey , 17 Barbour 660 (N.Y., 1854).
Since the act of April 7, 1848, for the more effectual protection of the property of
married women, where a married woman conveys her real estate acquired since the passage of
that act, the deed may be executed and acknowledged in the same manner, and be in the same
form, as if she were unmarried.
She need not acknowledge the execution of the instrument on a private examination, or
apart from her husband; or acknowledge that she executed the same without any fear or
compulsion of her husband.
The act of April, 1848, relative to married women, and the amendment thereto of April
11, 1849, so far as they relate to future acquisitions, are not in conflict with the
constitution of the United States, as impairing the obligations of the marriage contract.
Neither are those acts, so far as future acquired property is concerned, in conflict
with any provision of the state constitution.
This was an action of ejectment, and the following facts appeared in the case: On the
14th day of August, 1848, Carlton Humphrey being seised in fee of the premises in
question, conveyed them by deed to his daughter, Mrs. Blood, the wife of the plaintiff.
She and her husband occupied the premises, and the plaintiff made valuable improvements
upon the dwelling house, &c. and afterwards, and on the 14th day of May, 1850, Mrs.
Blood reconveyed the premises by deed to her father, Carlton Humphrey. Mrs. Blood died
soon after the making of this conveyance. The deed from Mrs. Blood to her father was in
the usual form of the deed of an unmarried female, and so was the certificate of the
acknowledgment of the execution. The plaintiff being in possession of the premises at the
death of his wife, occupied them a while, when the defendant went into the possession by
the consent of both the plaintiff and Carlton Humphrey. Judgment was given for the
defendant, at the circuit, and the plaintiff appealed.
R. Balcom, for the plaintiff.
H.R. Mygatt, for the defendant.
By the Court, Mason, J. The first question which I propose to consider in this
case is, whether the deed from Mrs. Blood to her father, Carlton Humphrey, was properly
executed and acknowledged, so as to convey the title of the premises in question. Mrs.
Blood, although a married woman, was seised of the fee of these premises, by conveyance
made to her on or about the 14th day of August, 1848. This conveyance being executed after
the passage of the act for the more effectual protection of the property of married women,
passed April 7, 1848, she held the same to her sole and separate use, the same as if she
were a single female. (Laws of 1848, chap. 200, § 3.) On the 14th day of
May, 1850, Mrs. Blood by deed conveyed these premises to her father, Carlton Humphrey.
There is nothing in the deed, or in the certificate of acknowledgment, to show that she
was a married woman. She does not acknowledge the execution of the deed on a private
examination, or apart from her husband, or acknowledge that she executed the same without
any fear or compulsion of her husband. The question presented for our decision therefore
is, whether this is a good execution, under our statute. The revised statutes declare that
the acknowledgment of a married woman, residing within this state, to a conveyance
purporting to be executed by her, shall not be taken unless, in addition to the requisites
contained in the preceding section, (which provides for general acknowledgments,) she
acknowledges on a private examination, apart from her husband, that she executed such
conveyance freely, and without any fear or compulsion of her husband; nor shall any
estate, of any such married woman, pass by any conveyance, not so acknowledged. (1 R.S.
758, § 10.) By the 3d section of the act of April 7, 1848, as amended by chapter 375
of the laws of 1849, (Laws of 1849, p. 528,) any married female may
take by gift, grant, devise or bequest, from any person other than her husband, and hold
to her sole and separate use, and convey and devise real and personal property, &c. in
the same manner, and with the like effect, as if she were unmarried. This statute
declares that a married female may not only take and hold real estate, in the same manner,
and with the like effect, as if she were unmarried, but that she may convey the same, in
the same manner, and with the like effect. There is no doubt, if we are to give effect to
the clear and explicit language of this statute, that this is a valid acknowledgment. Only
admit that when a married woman has received a grant in fee of lands, since the passage of
the act of 1848, and the amendment of 1849, she may convey the same in the same manner,
and with the like effect, as if she were unmarried, and the whole case is made out. This
is certainly admitting no more than the statute itself declares she may do. Such I have no
doubt was the design of the framers of this statute, as well from the plain and explicit
language of the section under consideration, as the other provisions of the act. The
legislature intended to remove the entire disability which both the common law and the
statute had thrown around married women, not only as regards their right to take and hold,
free and independent of their husbands; but also, to remove the obstacles which the law
had interposed against their conveying both by grant and devise, and to place them, so far
as the lands which they held in their own right are concerned, on the same basis,
precisely, as unmarried females. The plaintiff has shown no title to the premises in
question. The legal title is in the defendant, and there is nothing appearing in the case
which estops the defendant from setting it up. The defendant is not more the tenant of the
plaintiff than he was of Humphrey. There is nothing in the objection raised, that this act
of April 7, 1848, "for the more effectual protection of the property of married
women," and the amendment thereto of 1849, is in conflict with the constitution of
the United States, because it impairs the obligations of the marriage contract. I examined
this question in the case of White v. White, (5 Barb. 474,) and have seen no
reason to change my opinion since. Neither does this act conflict with any provision of
our state constitution, so far as the property in question is concerned; as the same was
conveyed to her since the passage of that act. The legislature may qualify the wife to
hold and convey property, without in any manner depriving the husband of any of his
property, and without impairing any of his rights of property; and besides, all of these
relations of after acquired property are wholly dependent upon the municipal law, and do
not rest in any manner upon any contract expressed or implied between the parties.
(Park on Dower, § 5. 1 Sandf. S.C.R. 541, 546. Id. 556, 561.)
This latter case was affirmed in the court of appeals. The judgment should be affirmed.
[Tioga General Term, May 9, 1854. Crippen, Gray, Shalkland and Mason,