Preston v. Fryer

Stewart, J.,

delivered the opinion of the Court.

From the petition and the demurrer admitting the facts in this case, it appears that the trustee in advertising the property for sale, under the decree, represented the title to be indisputable, and under that belief, the purchase was made.

There can be no doubt, the petitioner is entitled to be relieved of the purchase, if he cannot procure such title ■ under the decree, as the trustee undertook to sell.

The trustee under the decree, in making the sale, represents the Court, which will not permit such injustice as to compel a compliance with the terms of sale, under such circumstances.

Although the sale has been ratified, yet as the proceeds have not been distributed, but are under the control of the Court, it is competent to give relief by this interlocutory proceeding. Glenn vs. Clapp, 11 G. & J., 1 .

It seems the projserty in question was conveyed to Asenath Woollet then Asenath O’Connor, from Henry Shute, Jr., by deed of the 1st of May, 1827, and to Asenath Woollet after her intermarriage, with her husband, John P. Woollet, by deed of 17th October, 1831.

That during the coverture of the said John P. Wool-let and Asenath, his wife, the said Asenath, on the 1st of December, 1870, executed the deed purporting to convey the property to John P. Woollet. That both husband and wife are dead, and their respective heirs are now the claimants of the property.

The heirs and representatives of the husband are the only parties to this proceeding, the heirs of the wife, not having been made parties, the complainants relying upon the deed of the 1st of December, 1870, from Asenath Woollet, as vesting a perfect title in her husband, John P. Woollet, and his heirs. In this State, prior to the Acts of 1715, ch. 47; 1752, ch. 8, and 1766, ch. 14, no other mode of conveying the real estate of a feme covert, was *225 recognized, except the forms known to the common law, by fine or common recovery; and as to any separate interest in personal chattels, belonging to the wife, it was totally unknown to the common law.

(Decided 25th June, 1873.)

The above named statutes ’were intended to supply a better and less cumbersome method of conveyance of her estate. Lawrence vs. Heister, 3 H. & J., 376 .

The statute of 4 William 4, ch. 74, had abolished the common law modes in England. There is no doubt the rights and capacities of the wife have been greatly extended since the passage of these Acts, and by the provisions of the Code, the feme covert has been still further relieved of much of her antecedent disability.

Her powers over her property, not only as to its security and protection, but as to her disposal of the same, whether real or personal, are much enlarged, and the form of conveyance thereof simplified.

The wife may eonvey her property absolutely by a joint deed with her husband, or encumber it by mortgage, and she may execute and acknowledge the deed, mortgage, or bill of sale, as other grantors or bargainors, without private examination, as formerly required of her, and may relinquish her mere dower, by deed, with or without her husband.

Notwithstanding this enlargement of her powers by the provisions of the Code, they still expressly require that her husband shall join in the deed for the conveyance of her property.

These statutory directions cannot be disregarded by the Courts, and the deed of December 1st, 1870, from Asenath Woollet, at that time the wife of John P. Woollet, not having been executed in conformity with the law authorizing the conveyance of her property, cannot vest in the husband her estate in the same.

The order of the Circuit Court of Baltimore City must be affirmed.

7 Order affirmed.