Armstrong v. Kerns

Alvey, C. J., delivered the opinion of the Court. The question, and indeed the only question, on the record before us is, whether the mortgage made by Margaret Woelper to the Border State Perpetual Building Association of Baltimore City, under the power contained in the sublease from Charles McColgan to Mrs. Woelper, is good and valid, or whether it be a nullity because of the nonjoinder of her husband therein. The sub-lease to Mrs. Woelper bears date the 20th of October, 1816, and on the same day, though after the exe ³⁶⁶ ■cution of the sub-lease, the mortgage to the Building Association was made. The mortgage refers to the sub-lease as having been previously made and recorded.

Mrs. Woelper died intestate in the spring of 1878, leaving her husband surviving ; and the mortgaged premises were after-wards sold, urfder a decree of a Court of equity, and the ■sale was finally ratified. The appellants, as administrators of Mrs. Woelper, brought the present action of ejectment for the recovery of the mortgaged premises, as part of the estate of the deceased. At the common law, and before the passage of any enabling statute upon the subject, a married woman was competent to become a lessee for a term of years, because a lease was always presumed to be beneficial to the person taking it. Co. Litt., 3 a; 4 Cr.

Dig., tit. Deed, ch. 5, sec. 85, p. 79; Archbold’s Landlord and Tenant, 42; Smith’s Law of Landlord and Tenant, 55. She was not, however, capable of binding herself by covenant, though that disability has been removed by statute, as to all such covenants as run with or relate to the demised premises. Acts of 1867, ch. 223, and of 1882, ch. 385; Cruzen vs. McKaig, 57 Md., 462 .

But the statute law of this State, embodied in the Code, Art. 45, has invested married women with full power and capacity to acquire any property, by purchase, gift, grant, devise, bequest, or in course -of distribution; and which property, thus acquired, is declared to be for her separate use, with power of devising the same as fully as if she were feme sole, or of conveying •the same by a joint deed with her husband ; but if she die intestate, leaving children, her husband takes a life estate in her property, real and personal; but if she die intestate, leaving no children, her husband takes a life estate in her real property, and her personal property vests in him absolutely. Cod e, Art. 45, secs. 2 and 11. The latter section invests her with power to convey her real or personal property, if her husband joins in the conveyance, ³⁶⁷ whether tlie conveyance be absolute or by way of mortgage, etc. But it has never been considered that this statutory mode of conveyance by the wife, jointly with her husband, ivas exclusive of all other modes of conveyance that might be prescribed or authorized by the grantor, donor, or settler of property upon the wife, or that it rendered the wife incapable of executing a power. On the contrary, the object of the statute was rather to enlarge than to restrict her disposing power over the property acquired by her; and the modes and powers of disposition previously existing were in no manner intended to be denied or restrained.

When a married woman acquires property in any of the modes prescribed by the statute, without any declaration or limitation to her separate use, and without any special mode or power of disposition annexed to the estate, the statutory use attaches, and the statutory mode of disposition exclusively applies and controls. But where property is conveyed or settled upon a feme covert to her separate use, and a specific mode of alienation or appointment is provided in the instrument creating the estate, that mode must be pursued, as it operates as a negation of any other, and is a paramount law governing and controlling the contract in relation to the property. In such case, however, if there be no specific mode of disposition prescribed, or no restriction thereon, the feme covert may act in reference to the disposition of the estate as a feme sole. Cooke vs. Husbands, et al., 11 Md., 492 ; Buchanan vs. Turner, 26 Md., 1,