Gebb v. Howell

Alvey, J., delivered, the opinion of the Court. The title to the property attempted to be conveyed by the deed of the 18th of October, 1871, was acquired by Asseneth Wollet, then a married woman, by deed from Mrs. Kell, and others, in 1856. The property was not conveyed to the separate use of the grantee, hut was conveyed to her generally, and consequently the marital rights of her husband attached. Holding the estate by this title, Mrs. W’ollet, while under the disability of coverture, on the 18th of October, 1871, attempted to convey the property directly to her husband, in trust, without his joinder in the grant.

This, it is clear, she was incompetent to do, by any conveyance executed by her alone. The deed of a feme covert is, by the common law, simply void; and except as to her separate estate, settled upon her by deed or will, and with respect to which she may he empowered to act as a feme sole, she can only convey her property in the manner prescribed by statute. In this State, the manner prescribed for the conveyance of the property of a feme covert is by the joint deed of herself and her husband. Code, Art. 45, sec. 11.

And as this statutory mode of conveyance was not observed, the deed is void, and therefore without any effect whatever. Shep. Touch., Prest. Ed., 56, and note; Zouch vs. Parsons, 3 Burr, 1805 ; Concord Bank vs. Bellis, 10 Cush., 277 ; Lowell vs. Daniels, 2 Gray, 161.

The only mode by which a feme covert can convey her estate, not held to her separate use, to her husband, except in the execution of a power, is by means of a conveyance to a third person for his use, he joining with his wife in the deed. That this may he done has been expressly decided in Thatcher vs. Omans, 3 Pick., 521 . The trusts declared in the deed before us, and upon which the property was attempted to he conveyed, were, 1st, to the sole and separate use of the grantor for life; 2nd, after her death, then for the use and benefit of her ³⁹³ husband, John P. Wollet, for his life ; and, 3rd, after his death, the property to become the absolute estate of Mary Catharine Gebb, the complainant in this cause. The consideration stated in the deed was the love and affection of the grantor for her husband and the complainant, with a mere nominal money consideration superadded.

Notwithstanding the deed is absolutely void, as we have seen, the present application is to have the heirs-at-law of Asseneth Wollet, who died in 1872, restrained from the assertion of their rights to the property,—the husband, John P. Wollet, having also died soon after the death of his wife; and