Six v. Shaner

Weisel, J., delivered the opinion of this Court. The deed by Josiah Dotterer to Martha Ann Shaner, exhibited with the bill in this case, was executed on the 17th of October, 1857, and without any terms to constitute the real estate therein conveyed, her sole and separate estate, she beiDg a feme covert. The Acts of Assembly of 1842, ch. 293, and 1853, ch. 245, which govern this case, did not invest her with a separate estate in the property so as to exclude the marital rights, of the husband. This con ⁴⁴³ Stmetion has been distinctly and repeatedly settled by this Court.

Schindel vs. Schindel, 12 Md. Rep., 122, 312, 313 . Bridges & Woods vs. McKenna, 14 Md. Rep., 266 . Mut. Ins.

Co. vs. Deale, 18 Md. Rep., 47. Weems vs. Weems, 19 Md. Rep., 345 . Such being the nature of her title, no question can arise as to her power to affect or charge it by any contract or agreement of her own. It is only in regard to the separate property of a/eme covert that she can make a contract that equity would recognize and enforce. 4 Gill, 487 . 18 Md. Rep., 269 .

But the object of the bill, as shown by its frame-work and the proof taken to support it, is to charge the property with a resulting trust in favor of the appellant, by reason of his supplying $850 to Mrs. Shaner to complete the purchase money due by her to Dotterer, or with an equitable mortgage based on the parol promise and agreement of Mrs. Shaner and her husband, when he paid the $850, that he should he fully secured by a lien on the land, either by mortgage or in some other form, as might he deemed most effectual. Such is the averment of the hill, and one of the prayers is, that the said sum may be declared and decreed to be a lien on -the said land, or a resulting trust in favor of the appellant. It was conceded, and cannot be denied, that a mere parol agreement to execute a mortgage of -real estate, cannot 'be enforced in equity because of the Statute of Frauds. But it was insisted, that when such an agreement is confessed by the answer, or has been performed in part, it is taken out of the operation of the statute, and will he enforced against the party making it, and all those claiming under him who had actual notice, or could he presumed to have notice of it, and that the answer of Shaner and the proof in the canse, are sufficient to place this case within the -exception to the rule. ⁴⁴⁴ The authorities before cited upon the subject of contracts by femes covert, establish the principle, that except as to her separate estate, any contract by the wife, made by her or by her husband, with or without her consent, is absolutely null and void, and she cannot be compelled to perform it.

This principle, however, is to yield to any statutory mode for enabling married women to contract, or to bind or bar their interests in real estate. Morris vs. Harris, 9 Gilt, 28. Johns vs. Reardon, 11 Md. Rep., 470 . Even if this principle did not stand in