tention of the person executing them": See, also, Mills v. Catlin, 22 Vt. 98.

After sixteen years of undisturbed possession of this property, under an instrument executed by the husband and wife, acknowledged by them to be their free act and deed, to hold that, because the husband's name does not explicitly appear in the introductory clause of the deed, it was invalid, because not jointly made, would, in our opinion, be doing violence to the spirit of the statute, as well as an absolute abandonment of substance and a complete surrender to form.

The judgment in this cause should be affirmed, and it is so ordered.

All concur.

WHAT IS SUFFICIENT JOINDER OF HUSBAND IN CONVEYANCE OF WIFE'S REAL ESTATE.

I. Omission to Name Husband as Grantor.

a. Deed Sufficient if Husband Signs and Acknowledges.
b. Effect in Some Jurisdictions of Failure to Name Husband
as Grantor.

c. If Ineffective as Deed, may be Effective as Contract to
Convey.

II. Joinder of Husband by Separate Instrument.

III.

Effect of Failure of Husband to Sign Deed.

I. Omission to Name Husband as Grantor.

a. Deed Sufficient if Husband Signs and Acknowledges.-In many of the states statutes provide in effect that husband and wife may by their joint deed convey her real estate in like manner as she might do by her separate deed if she were unmarried, or that all conveyances of the real estate of married women executed by them jointly with their husbands, and duly acknowledged and recorded, shall be valid and effectual to transfer such estate; or that husband and wife may convey her real estate by their joint deed acknowledged and certified as required by statute. The question very often arises under such statutes as to what is the joint deed of husband and wife, or when is a deed by a married woman jointly executed with her husband. This question is most often presented to the courts when the name of the husband as a grantor is omitted from the body of the deed, although he signs and duly acknowledges it. While there is some diversity of opinion on this question, the prevailing rule as sustained by the great weight of authority is that a deed of a married woman of her separate real estate, signed and acknowledged by her husband, is good and passes the title, although he is not named as grantor or otherwise in the body of the deed. In other words, it is generally maintained that it is not necessary that the husband's

name as grantor, should be inserted in the body of a deed given by a married woman conveying her separate estate, but it is sufficient if he sign, seal, and acknowledge it: Dentzel v. Waldie, 30 Cal. 138; Pease v. Bridge, 49 Conn. 58; Evans v. Summerlin, 19 Fla. 858; Miller v. Shaw, 103 Ill. 277; Dean v. Shreve, 155 Ill. 650, 40 N. E. 294; Chapman v. Miller, 128 Mass. 269; Merrill v. Nelson, 18 Minn. 374; Stone v. Montgomery, 35 Miss. 83; Elliott v. Sleeper, 2 N. H. 525; Woodward v. Seaver, 38 N. H. 29; Clark v. Clark, 16 Or. 224, 18 Pac. 1; Thompson v. Lovrein, 82 Pa. St. 432; Friedenwald v. Mullan, 10 Heisk. 226; Morgan v. Snodgrass, 49 W. Va. 387, 38 S. E. 695; Schley v. Pullman Palace Car Co., 25 Fed. 890, affirmed 120 U. S. 575.

The reason for the rule has been variously stated. Thus, in Thompson v. Lovrein, 82 Pa. St. 437, the court said: "As the essential thought of a husband's joinder with his wife in her conveyance of her estate, is his consent to her act, we think his sealing and signature to the deed, duly acknowledged as his act and deed, fully supply the evidence of this consent. True it is that the entire language of the deed is that of the wife alone; even to the concluding words, 'in testimony whereof,' yet when the husband signed and sealed it with her, and solemnly declared it to be his deed for the purposes contained in it, he adopted all that was before his signature. The true purpose of the law is therefore answered." In another case it was said, that "the purpose or reason why the law requires that the husband should join in the deed with his wife is, that his assent to the conveyance might appear, and that it might also appear that he was present to protect her from imposition. Why should he, upon the face of the deed, be required to say that he conveys, and is seised and possessed, and has a good right to convey, when these covenants as to land belonging to his wife are not true. All that is required of him is to signify his assent and presence by his signature. That binds him to all the recitals contained in the instrument, and makes it as much his deed or obligation as if his name was inserted in the body of it. By his signing, delivery, and acknowledgment of the deed he would be forever estopped from setting up any claim to the property conveyed': Friedenwald v. Mullan, 10 Heisk. 231.

Again, in Stone v. Montgomery, 35 Miss. 107, it was said: "The property is admitted to belong to the wife, to her sole and separate use; and of course the husband had merely a secondary interest in it. It was her act which was essential to the conveyance. But he signed the deed and acknowledged it as his act and deed for the purposes stated in it. That was sufficient to show his consent and co-operation in the conveyance in the most certain form; and the reason of the statute, in requiring the conveyance to be made by the joint deed of the husband and wife, is that it may be made with his aid and consent. His signing, delivery, and acknowledgment of the deed would estop him from setting up any claim to the property against the grantee, and show that the title of the wife was con

veyed by his co-operation. Under such circumstances, the deed is sufficient under the statute to convey the wife's estate."

In Pease v. Bridge, 49 Conn. 61, the court expressed itself as follows: "The land was the property of the wife; power to convey is given to her, to be effectively exercised, it is true, only when the husband joins in the execution-when he signs her deed of conveyance and duly acknowledges the act. By signing he gives proof that he has had an opportunity to protect her from an improvident contract, and that he surrenders to her grantee all the right, title, and interest which he, as husband, has in the land. The statute, it will be ob served, only requires that he shall execute in legal language, he who signs executes, and we may not add to the statutory requirements another, namely, that his name shall also be inserted in the premises of the deed."

In delivering the opinion in Dentzel v. Waldie, 30 Cal. 149, Mr. Justice Sanderson said: "What is here meant by the words 'joint deed' Is it necessary that the husband should appear as a grantor in the body of the deed, or is it sufficient if he join in signing, sealing, and acknowledging? Why make him play the part of a grantor when he has nothing to grant? His assent to the act of his wife is all that the policy of the law could require. That is as well signified by a joint signing and sealing only, as by making him assume in addition, a false character."

In Schley v. Pullman Car Co., 120 U. S. 575, 7 Sup. Ct. Rep. 730, it was decided that a deed of a married woman conveying her separate estate, signed, sealed, and acknowledged by her husband, was sufficient, although his name did not appear in the granting clause of the instrument, and the court, in disposing of this question, which arose in Illinois, said with reference to the statute and decisions of that state that "if, under a statute making it lawful for husband and wife to execute a conveyance of her real estate, they will both be held to have executed a conveyance of her separate property where her name appears, but that of the husband does not appear, in the granting clause of the deed, but they both sign and acknowledge it in the mode required by law; and if the wife's estate of homestead can be conveyed by a deed signed and duly acknowledged by herself and husband, her name, however, not appearing in the body of the deed, it would seem to follow that, within the meaning of the act of 1847, and according to the tendency of the decisions of the supreme court of the state, the wife joins with her husband in the execution of a conveyance of her estate of inheritance where her name alone appears in the granting clause, but the deed is signed both by herself and husband, is acknowledged by both and is certified as required by law. Such conveyance, so signed, acknowledged, and certified, of the wife's land, seems to be as effectual, under the local law, to invest the grantee with the title and interest of both husband and wife, as if his name had also appeared in the granting clause': Schley v.

Pullman Car Co., 120 U. S. 583, 7 Sup. Ct. Rep. 730. Many other interesting cases are cited above, but they are quoted from so fully in the principal case that further mention of them here is omitted.

It seems to be an almost universal rule, as announced in the cases already cited, that a deed from a married woman for her separate estate in land, signed and acknowledged by her husband, is good and valid, though he is not named as grantor, or in any way in the body of the deed, but that such deed is not effective unless acknowledged by both husband and wife: Morgan v. Snodgrass, 49 W. Va. 387, 38 S. E. 695.

It is a sufficient joinder of a husband in his wife's deed of her land derived from him, for him to express his assent by signing and acknowledging the deed under his own hand and seal, without being named in such deed as grantor, or in any way being made a formal party to the deed: Bray v. Clapp, 80 Me. 277, 6 Am. St. Rep. 197, 13 Atl. 900; Roberts v. McIntire, 84 Me. 362, 24 Atl. 867. In such case, the assent in writing required by statute of a husband to his wife's deed of her real estate, is sufficiently shown by the insertion of his name in the attestation clause, "in token of relinquishment of his right in the above-named premises" with his signature and acknowledgment: Chapman v. Miller, 128 Mass. 269. If a wife holds property under a deed of gift from her husband, by which it is conveyed to her and her children jointly, with power to her as guardian or trustee, to "make sale of such and all of said property, whenever she may see proper to do so, and appropriate the same for the general good of the children and herself as a family," a deed executed by her and properly acknowledged by herself and husband, and to which her husband's name is signed, though he is not named in the deed as a party, is sufficient to pass the title to the property: Holleman v. De Nyse, 51 Ala. 95.

b. Effect in Some Jurisdictions of Failure to Name Husband as Grantor. Some of the cases are directly opposed to the generally prevailing rule announced above. This is noticeably so in Alabama. In that state a statute provided that, "conveyances of a wife's property, made in writing by husband and wife jointly and acknowledged before some officer authorized to take acknowledgments of conveyances are valid and adequate to pass the wife's estate," and it was held thereunder that a conveyance, by a married woman of lands belonging to her as her statutory separate estate, signed and acknowledged by herself and husband, but in which he is not named as a grantor, and which contains no words of conveyance passing, or evidencing an intention to pass, his estate or interest in the lands, is merely the void deed of the wife, to which the husband was not a party, and to which his concurrence was not expressed in the mode prescribed by statute. It cannot be enforced in equity as a contract to convey, although the purchase money has been paid and possession taken and continued by the purchaser thereunder for a number of

years. This decision was placed partly on the ground that the husband held an interest as trustee to take the rents and profits of the wife's separate estate and consequently must join the wife in the granting part of her conveyance thereof the same as if he were equally interested therein with her: Blythe v. Dargin, 68 Ala. 370-376. Under a later statute in that state, the words of which will be quoted below, the court again held in Davidson v. Cox, 112 Ala. 510, 20 South. 500, that it was necessary to a valid conveyance of a wife's lands that her husband should join in the alienation in the same manner as if the land belonged to him in severalty, jointly, or in common with others, and that his mere signature to his wife's deed, purporting to convey her land, her name only appearing in the body of the instrument, is not an efficacious manifestation of the assent and concurrence of the husband in the conveyance as required by the statute, and that such conveyance is but the void deed of the wife, and not effective to pass title. In reaching this conclusion the court said: "The only question in this case is whether the mere signature of the husband to the wife's deed purporting to convey her land, the wife's name only appearing in the body of the instrument, is an efficacious manifestation of his assent to, and concurrence in, the conveyance. In our opinion, the express terms of the statute answer this inquiry in the negative. Its language is: 'The wife cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concur rence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land': Code, 1886, sec. 2348. This can mean nothing more nor less than that the husband shall join in the alienation in such way as would be necessary to a conveyance of his interest in the land if the land belonged to him in severalty or jointly or in common with others; and in such case his mere subscription to the conveyance another party alone being mentioned in the instrument as grantor, would not make it his deed, nor pass any interest he owned in the premises: Sheldon v. Carter, 90 Ala. 380, 8 South. 63. This view is strengthened by the rulings of this court ou the former statute. . . . and under which it was held that an instrument such as we have here, purporting to be the conveyance of the wife alone on its face, but signed by both husband and wife, is no more nor less than the void deed of the wife, to which the husband is not a party and to which his concurrence is not expressed in the only mode in which the law authorizes its expression: Blythe v. Dargin, 68 Ala. 370. It is urged, however, that the husband had some interest or title in the wife's lands as her trustee under the former statute which he has not under the present one, that such interest or title made a necessity for his joining in the alienation which has no existence now; and that, therefore, the decisions under the former statute are of no authority in respect of this one. But it is to be said in answer to this that