Sect. 5. As to dispo CHAP. III. the wife and her heirs.) But as to those dispositions in which the wife is not joined as are made of things lying in livery, the authorities appear to be conflicting upon the point whether they become absolutely void upon the husband's death, or voidable only. sitions affecting the property of femes covert. Disconti nuance by husband alone void, able. And, semble, other dispositions by him of things in livery. Contract by husband voidable. It at least seems clear, that whenever the disposition made by the husband alone operates as a discontinuance, the same will not so absolutely determine upon his own or his wife's death as to be incapable of confirmation by her or her heirs, but will be voidable only; and this seems fully proved by the circumstance of an entry to avoid such disposition being given by the statute, in substitution for the previous remedy by action. And that dispositions made by the husband alone of things lying in grant, if in esse, are voidable only, but if of things de novo, are absolutely void upon his death. The better opinion also seems to be, that all such dispositions of things lying in livery made by the husband alone as do not work a discontinuance are voidable only upon his death, and do not so absolutely determine upon that event as to be incapable of subsequent confirmation by the wife or her heirs, though the authorities are not as we have seen in unison upon the point.a If a husband contract for the sale of an estate whereof he is seised in right of his wife, and die, there seems to be no doubt but that the wife may, if she think proper, abandon the contract in toto. г But no case has been met with in express determination of the question, whether she can compel the purchaser to perform the contract. The point was incidently touched upon in a recent case, but did not require a decision. It would seem however, from analogy to the cases wherein the wife may elect either to avoid or affirm the absolute dispositions made of her estate during the coverture, that a similar election may also be exercised by her in avoiding or affirming contracts made of that estate during the coverture, and that therefore q See 1 Pr. Abs. 336. r Bryan v. Woolley, 2 Bro. P. CHAP. III. Sect. 3. fecting the she may compel the purchaser to perfect his bargain. At the time of entering into the contract, he knows, or may As to dispobe presumed to know, the legal consequences incident to a sitions af purchase of the property of a married woman, and cannot property of therefore complain of the want of mutuality on his side, in femesbeing unable to compel a performance of the contract by her. covert. What dispositions are binding Some dispositions however there are affecting the wife's freehold, capable of being made during coverture, which will be binding upon herself and her heirs when that state upon wife. of disability has ceased to exist. Therefore if a fine be levied or recovery suffered by husband and wife, and a declaration of the uses thereof be made by the husband alone, the same will be binding upon the wife, unless she dissents therefrom during the coverture. t Declaration of uses by husband alone acquiesced coverture. And if upon a partition made between two coparceners Partition. and their husbands, the allotments be of equal yearly value, such partition cannot be afterwards avoided, since they are compellable by law to make partition. But if the part allotted to the one be less in value than the part allotted to the other, though the same shall stand good during the lives of the husbands, yet after the death of the husband of her who had the lesser part, she may enter upon her ́sister's part, and defeat the partition. u Also a partition by force of the king's writ, and judgment thereupon given, will bind the femes-covert for ever, though the parts were not of equal annual value, because made by authority of law.▾ ment of And if a husband seised of land in right of his wife, Assignwhereof B. the wife of A. is dowable, assign the third part dower by thereof to B. for her dower, the assignment will be binding husband. upon the wife of the assignor. See 1st resol. in Beckwith's ca. 2 Co. Rep. 56 b. 1 Pr. Abs. 338, 1 Pr. Conv. 314. Lit. ss. 256, 257. Co. Lit. 170b. 171a. W ▾ Co. Lit. 171 a. This compulsory mode of effecting a partition is nearly become obsolete. * Perk. s. 399. Co. Lit. 35 a. n. (2.) [17th ed.] CHAP. IIL As to dispositions affecting the property of Where the custom of some towns and boroughs authorizes conveyances of the estates of femes-covert to be made without fine or recovery, such conveyances will be conclusive upon them when the coverture ceases. And surrenders by femes-covert of leases affecting their property pursuant to the statute of 29. G. 2. c. 31. will be sustainable, though not effected through the medium of either a fine or recovery. femes covert. Convey ances by wife warranted by custom. A feme-covert powers ap may also execute a power, whether apBy statute. pendant, in gross, or simply collateral, without fine or reExecution covery, and without her husband's concurrence, though by wife of the disability of coverture be not dispensed with *; and as pendant, in well over copyhold as freehold estate. " And she may convey an estate as the attorney of another, and in the same manner as her principal might have done, whose conveyance indeed that of the attorney is considered to be2. She may also convey in performance of a condition": and may forfeit a conditional gift. gross, or collateral. Convey ances by her as attorney. Conveyances in performance of conditions. Neither will coverture be any more an excuse in case of Coverture fraud, than infancy: for though the law prescribes formal conveyances and assurances for the sales and contracts of tion against infants and femes-covert, which every person who contracts no protec fraud. Where dis with them is presumed to know; yet when their right is secret, and not known to the purchaser, but to themselves, or to such others who will not give the purchaser notice of such right, so that there is no laches in him, a court of equity will relieve against that right, if the person interested will not give the purchaser notice of it, knowing he is about to purchase. d A case may exist, where, in consequence of the prejudice position by which might otherwise result to third persons, a wife has husband X Sug. Pow. 155. But see 1 Pr. › Driver v. Thompson, 4 Taunt. z Sug. Pow. 154. 1 Pr. Abs. 333. a W. Jo. 137, 138. 1 Rol. Ab. 421. 2 Rol. Rep. 68. Bro. Ab. tit. Cui in vitâ, pl. 15. b See Ves. jun. 560. in Lady Cavan v. Pulteney. d See supra, page 54. Savage v. Foster, 9 Mod. 35.; and see 6 Ves. 181. in Evans v. Bicknell. 2 Mad. 451. in Cory v Gertchen. an election to avoid a disposition made of her estate by herself and husband during coverture, though the subject of it be of a chattel nature; forming therefore an exception to the general rule that the husband may dispose of all his wife's chattels as well real as personal. CHAP. III. Sect. 3. As to dispositions af fecting the property of femes covert. and wife of her chattel avoided. As if a woman guardian in socage marries, and joins with her husband by indenture in making a lease for years of the ward's lands; after her husband's death she may may be avoid this lease: for though the husband has absolute power to dispose of all chattels either real or personal whereof he is possessed in right of his wife, and the wardship of the body and land is but a chattel; yet the wife being possessed of it in right of the infant, and accountable to him for the profits when he comes of age, the husband's disposition shall not bind after his death, but she may avoid the lease in right of the infant, whose guardian she still continues to be. e tions of property The same election which a wife and her heirs may ex- Disposiercise upon the death of her husband in avoiding or confirming the voidable dispositions made of her estate acquired during during coverture, she and her heirs may also exercise at coverture the like period with reference to property acquired by voidable herself and husband jointly, or by her solely, during the continuance of the coverture. f Thus if lands are given to husband and wife, and the heirs of the husband, who dies; the wife may disagree to this estate made during the coverture, and then it will be an estate to the husband and his heirs ab initio, and so she shall have her dower thereof: and the bringing a writ of dower will constitute a disagreement to take by purchase. And if the estate be made to the husband and wife for the life of the husband, remainder to the right heirs of the husband; though the estate upon the husband's death be determined and gone, yet it has been thought that the wife may disagree to the same by bringing a writ of dower. h e Co. Lit. 351 a. 1 Rol. Ab. 343. f 2 Bl. Com. 292, 293. 8 Perk. s. 352. 3 Co. Rep. 27b. by wife. CHAP. III. Again, if a lease for years be made to husband and wife As to dispo- rendering rent; upon the husband's death, the wife may either avoid or affirm the lease at her election; and if she agrees to it, debt lies against her for all the arrears incurred in the life of the husband.i sitions affecting the property of femes Covert. Purchase by wife husband, &c. at election. And by all reservations depending upon land leased to baron and feme by indenture, as re-entry and doubling the rent for non-payment, or a fine nomine pœnæ, the feme will be bound if she agree to the lease; but by a collateral covenant, or obligation in the same indenture to bind them in a sum in gross, as by a covenant charging the person, and not the land leased, or an obligation for non-payment of the rent, or to give such surety as the counsel of the lessor should devise, or by grant to distrain in other land, she will not be bound. j And if baron and feme accept a fine, rendering rent; if she agree to the estate after the death of the baron, she will be charged with the rent.< If a feme covert purchase an estate, (not acting under a voidable by power for that purpose,) her husband may either avoid or adopt the purchase at his election; and if the former, may maintain trover for the purchase money: but if he neither agree nor disagree to the purchase, the same will be effectual: and though the husband may have agreed to the purchase, yet after his death the wife may exercise a similar election either in avoiding or confirming it: and if she do agree to it, her heirs may wave it.' Election to not II. The commission of what acts by the wife or her heirs avoid void- does and does not preclude an exercise of election to avoid able dispo sitions or affirm the voidable dispositions made of her estate when deter mined. during coverture. Not by ac . It is said, that acceptance by the wife after her husband's ceptance of death of rent reserved upon a feoffment made of her free rent upon i 1 Rol. Ab. 349. j Bro. Ab. tit. Coverture, pl. 11. tit. Covenant, pl. 6.; and see ibid. tit. Barre, pl. 27. 1 Brownl. 31. 2 ibid. 71. Shep. To. 178. [7th ed.] k 1 Rol. Ab. 349. 1 Garbrand v. Allen, 1 Ld. Raym. 224. Co. Lit. 3a. Barnfather v. Jordan, Doug. 451. [3d ed.] Sug. V. & P. 502. [5th ed.] |