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the decision just referred to is expressly put upon the ground, not of any supposed title or interest in the husband, but, that the statute required his assent and concurrence to be expressed by joining in the conveyance, and it could not be expressed in any other mode. The present statute requires the expression of the husband's assent and concurrence in this mode. It was not so manifested in the attempted conveyance involved in this case. The instrument, we conclude, was no more or less than the void deed of the wife": Davidson v. Cox, 112 Ala. 513, 20 South. 500. In the subsequent case of Johnson v. Goff, 116 Ala. 648, 22 South. 995, the court adopted the above reasoning, and held that the assent and concurrence of the husband required by statute to give validity to a deed conveying the wife's lands, can be manifested only by his joining the alienation in such way as would be necessary if he owned the lands in severalty, and a deed purporting in the granting clause and body thereof, to be the deed of the wife, her name alone appearing therein, but which is signed and acknowledged by her and her husband, the latter's name appearing nowhere in the body of the instrument, and nothing appearing therein to indicate an intention on his part to become the grantor, is nothing more than the void deed of the wife, and inoperative and ineffective to convey her title to her land. The same doctrine appears to prevail in Kentucky, where it is held that the mere signing of the husband's name to a deed executed by his wife, of her lands, wherein his name does not appear, does not meet the requirement of the statute that the conveyance of the wife's separate estate must be by joint deed of husband and wife, and therefore such deed is void: Weber v. Tanner, 23 Ky. Law Rep. 1107, 64 S. W. 741.

We must respectfully dissent from the rule and the reasons therefor as announced by these cases, as we fail to see the necessity of naming the husband as a grantor of property in which it is expressly admitted he has no interest and this is especially so where the statute does not in express words provide that he shall join the wife as a grantor in the body of the deed, attempting to convey her property. Certainly, his assent to and concurrence in her conveyance of her lands, by signing and acknowledging her deed is all that should be required to make it efficacious to pass the title.

In Vermont, real estate conveyed to a wife is not her separate estate, unless the conveyance contains explicit words, shutting out her husband from marital rights in such estate, and in such case and in the absence of such words, and under the statutory system in force in that state, the husband has a freehold interest in such lands. Therefore, when he has a freehold interest in her lands, by virtue of the marital relation, it is essential to make the deed of the wife to her lands good and effective to pass the title, that her husband be joined with her as a grantor in the body of the deed, and it is not enough that he merely sign and join in the execution of

her deed: Dietrich v. Hutchinson, 73 Vt. 134, 87 Am. St. Rep. 698, 50 Atl. 810. The court attempted to justify its holding in the following language: "The statute provides that a husband and wife may, by their joint deed, convey the real estate of the wife as she might do by her separate deed if unmarried (Vermont Stats. 2209); and that a married woman shall not convey or mortgage her real estate except by deed duly executed by herself and husband. There is more or less conflict in the cases as to what is a sufficient joining of a husband in his wife's deed of her real estate, to answer the requirements of the statutes in such case made and provided. But we think the weight of authority is that when the husband has a freehold interest in his wife's real estate by virtue of the marital relation, he must, in order to make her conveyance thereof good, so join therein as to pass his title, and that to do that, he must be named in the body of the deed as a grantor and use apt and sufficient words to convey, and that his merely executing a deed jointly with his wife in which she alone is named as grantor is not enough. An extended consideration of the cases is unnecessary. They are pretty fully reviewed in a note to Payne v. Parker, 25 Am. Dec. 226, in one to King v. Rhew, 23 Am. St. Rep. 82, and in 9 American and English Encyclopedia of Law, second edition, 110-113. Much of the conflict among them is more apparent than real, and grows out of the difference in statutes and in the marital rights of the husband in the wife's land. Thus in Maine, the statute requires the join ler of her husband,' but not, it is said, as a grantor, for he has nothing to grant but merely as an assenter for he has only the power to give or to withhold assent, and therefore it is sufficient where he signs and seals the deed without otherwise becoming a party to it: Bay v. Clapp, 80 Me. 277, 6 Am. St. Rep. 197, 13 Atl. 900. In Connecticut the statute requires the deeds of married women to e 'executed by them jointly with their husbands,' and they hold that he who signs executes, and that the husband's name need not be inserted in the body of the deed: Pease v. Bridge, 49 Conn. 58''; Dietrich v. Hutchinson, 73 Vt. 138-140, 87 Am. St. Rep. 698, 50 Atl. 810. It certainly appears to us that the theory of the Vermont case is fallacious and that the cases cited therefrom maintaining the contrary rule contain the only true and satisfactory solution of this vexed question.

c. If Ineffective as Deed may be Effective as Contract to Convey. Under the statutes at present in force in Alabama, the courts of that state maintain that a deed from a married woman conveying her lands wherein her husband does not join in the body thereof as a grantor, though void as a deed, is a valid contract to convey such lands, when the husband expresses in writing his assent to, and concurrence in, the execution of the deed, and the purchaser pays the purchase money and enters immediately into the actual, open, and notorious possession under a claim of ownership: Murphy v.

Green, 120 Ala. 112, 22 South. 112. Or if a husband signs and acknowledges his wife's deed as a grantor, but his name does not appear as such in the body of the deed, the instrument, though ineffective and inoperative as a legal conveyance of her lands, constitutes a valid contract to convey and the grantee takes the equitable title to the premises: Rushton v. Davis, 127 Ala. 279, 28 South. 476.

II. Joinder of Husband by Separate Instrument.

It has been held that a deed properly signed, executed, and acknowledged by a wife of her separate property, not signed by her husband, but with his assent on a separate instrument not under seal, but properly acknowledged, is sufficient to pass the title to the land: Ingoldsby v. Juan, 12 Cal. 564; and it has also been held that if a mortgage of her land by a married woman is drawn in terms which would be appropriate for a mortgage by her if she were a feme sole reciting the consideration and description of the property and using apt words for its conveyance and at its conclusion containing the following recital, "and I, husband of Emma F. Hamlin, hereby consent to the making and execution of this deed by her, and join her in its execution and the conveyance of the property,' and both husband and wife duly execute and acknowledge the instrument, it is a valid mortgage, the words added by the husband being a sufficient compliance with the statute which requires the assent and concurrence of the husband to the alienation of his wife's land: Interstate etc. Assn. v. Agricola, 124 Ala. 474, 27 South. 247. On the other hand, there are cases holding that a husband cannot give his assent to his wife's conveyance by separate instrument so as to render her deed valid. Thus, in Hammond v. Thompson, 56 Ala. 589, it was decided that a deed of her statutory separate estate, executed by a wife alone, using apt words and reciting that she is a married woman, is void, as being the deed of the wife alone, and not the joint deed of husband and wife, although her husband executes another instrument under seal, on the same paper as the deed, and at the same time, declaring that he consents to, and approves of, such sale and conveyance by his wife. It has also been held that if a married woman executes a deed to her land without the joinder of her husband, who, however, at the time of the execution of such deed, executes a separate paper giving his consent to the execution of the deed by his wife, but this paper is not acknowledged or recorded until after the deed of his wife, such deed is invalid and does not convey the land to the grantee: Ferguson v. Kinsland, 93 N. C. 337.

III. Effect of Failure of Husband to Sign Deed. While it appears that a deed of a married woman's land consti tuting her separate estate, in which the husband is required to

join under the statute, is void if it purports to be signed by both husband and wife, but is in fact signed by her alone while she is living with her husband: McAnulty v. Ellison (Tex. Civ. App.), 71 S. W. 670; yet, it is also true that a husband joins with his wife in the execution of a deed of her property, under a statute providing that a deed so joined shall bind the wife, by her signing his name to the deed by his authority, although he does not acknowledge it before the proper officer: Dean v. Shreve, 155 Ill. 650, 40 N. E. 294.

MCDONNELL v. DE SOTO SAVINGS AND BUILDING ASSOCIATION.

[175 Mc. 250, 75 S. W. 438.]

BUILDING AND LOAN ASSOCIATIONS-Usury.-By-laws of a building and loan association fixing a minimum premium, greater than the legal rate of interest, at which loans may be made, are inconsistent with a statute requiring free and open competition in bidding for loans, and render a loan made thereunder usurious, although a larger bid is made therefor than the usurious rate arbitrarily made by such by-laws. (p. 602.)

INTEREST-Usury-"Legal Rate"-"Contract Rate.”—A statute relating to usury and using the expression "legal rate of interest," means the statutory rate obtaining in absence of a contract fixing the rate, and not the rate which may be legally contracted for. The words therein, "contract rate," mean any rate above the "legal rate" which may be legally fixed by contract. (p. 604.)

CONSTITUTIONAL LAW.-Courts must Decline to pass upon the constitutionality of a statute under consideration unless it is necessary to do so to properly dispose of the question presented for determination. (p. 605.)

TRUSTEES in Deeds of Trust.-An Officer of a building and loan association may legally become a trustee in a deed of trust given to secure a loan made by such association. (p. 605.)

FORECLOSURE SALES.-Inadequacy of Price, in the absence of other considerations, is no ground for setting aside a foreclosure sale under a deed of trust, unless it is so gross and unconscionable as to shock the moral sense. (p. 606.)

ESTOPPEL IN PAIS-Waiver.-Although an estoppel in pais. must generally be pleaded as a defense, such defense may be waived by the plaintiff in the case by proceeding with the trial without objection as if such defense relied upon had been pleaded. (p. 607.)

BUILDING AND LOAN ASSOCIATIONS-Usury-Estoppel to Plead. Although under a by-law of a building and loan association a loan made by it is usurious, yet if property covered by a deed of trust given to secure such loan is sold under foreclosure for default in payment of interest and premium dues, and the mortgagor

solicits others to attend the sale and bid on the property, and himself attends and makes no objection to the validity of the loan or the manner of sale, he is estopped from setting the sale aside and the purchaser thereat takes title. (p. 608.)

J. J. O'Donohoe, for the appellants.

Campbell & Thompson and T. E. Ralston, for the respond

ents.

257 BURGESS, J. This suit was instituted by John McDonnell and Catherine McDonnell, his wife. Since the suit has been pending in this court John McDonnell died, and the suit was duly revived in the name of his heirs and the administrator of his estate. The purpose of the suit is to have canceled and set aside two certain bonds and two deeds of trust securing the same, executed by McDonnell and wife, to defendant Hartnett, 258 as trustee of the De Soto Savings and Building Association, as well as the sale of the property described in the deeds of trust by said trustee, and the deed by him to the defendant Anderson.

The petition is in two counts. In the first count it is alleged in effect that on the tenth day of April, 1895, plaintiffs, McDonnell and his wife, borrowed of defendant De Soto Savings and Building Association the sum of $3,000, at the stipulated rate of fifteen per cent; that the premium for said sum was deducted and the balance of $2,550 was paid to plaintiffs; that this loan of $3,000 was on the 27th of August, 1897, secured by a bond and deed of trust on certain property on Bremen avenue, in the city of St. Louis, Missouri; that on the fourteenth day of May, 1896, McDonnell and wife borrowed of the defendant association, the sum of $13,000, at the stipulated rate of interest of six per cent per annum; that from this sum, fifteen and one-half per cent premium was deducted, and a balance of $10,985 was paid to McDonnell; that to secure the payment of said $13,000 loan, McDonnell executed his bond and deed of trust on the same property on Bremen avenue. The petition then recites that from the tenth day of April, 1895, when the first payment on stock and interest was made, until the 19th of May, 1899, when the last payment on stock and interest was made, McDonnell paid to the association the sum of $5,795. That since the 10th of April, 1895, McDonnell has been the owner of eighty shares of the stock of said defendant association, which stock, together with the earnings, profits, and dividends "aggregate a sum the exact amount of

Am. St. Rep., Vol. 97-38

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