
    Robert v. Sliffe.
    A wife became seized in fee of land in 1863, and died in 1S72. Her husband and three children survived her. In 1876 the husband mortgaged his estate by the curtesy to secure his own' notes. The children are still living. The mortgagee by action seeks to sell their father’s said estate and apply the proceeds on the mortgage. The children resist.
    
      Held: Under section 1 of the act entitled “An act concerning the rights and liabilities of married women” (58 Ohio L., 54), passed March 27, 1861, as amended March 23, 1866, (S. & S., 391), the mortgage cannot be enforced so long as either of said children survives.
    Ebbob to the District Court of Tuscarawas County.
    David Sliffe and Susanna Shutt intermarried in 1858. On April 14, 1863, Susanna inherited in fee simple a tract of land in Tuscarawas county, Ohio. She died August 7th, 1872, intestate, seized of the land, leaving surviving her husband, and Lewis, Amanda and Frederick B. Sliffe, issue of said marriage, her only heirs at law, all of whom are living, and to whom the land descended, subject to the dower estate of the widow of Jacob Shutt and the curtesyestate of said David Sliffe.
    That said children were and are in possession of the land: by permission of their father.
    The plaintiff brought an action in the common pleas to enforce the lien of a mortgage of said real estate, made to him on the 31st day of August, 1876, by David Sliffe, to secure the payment of certain promissory notes, some of' which had become due, claiming that at the time of the making of the mortgage the mortgagor held an estate in the; land for the term of his own life.
    
      David Sliffe, the mortgagor, made no defense.
    Lewis and Amanda Sliffe filed an answer containing two grounds of defense. The second set up the facts as above stated.
    The common pleas óverruled the plaintiff’s demurrer to said second defense, and dismissed the petition at plaintiff’s cost. The district court affirmed the judgment.
    Harrison, Olds & Marsh, for plaintiff in error.
    The only question is, can the owner of an estate by the curtesy, subsequently to the death of his wife, but during the lifetime of heirs of her body, execute a mortgage upon such estate to secure the payment of his debt ?
    The answer to this question depends upon the meaning of the last sentence of the first section of the Married Woman’s Act, as the same was passed April 3d, 1861 (58 Ohio L., 54), and amended March 23, 1866 (S. & S., 391).
    Prior to the taking effect of this act, the owner of an estate by the curtesy could convey or incumber his estate, without let or hindrance, during his wife’s lifetime as well as after her death. This fact suggests the rule of construction by which the meaning of the act must be discovered. Inasmuch as the act operates, to some extent, as a limitation upon the power of the owner of an estate of freehold, to alienate or incumber it, and is, therefore, in derogation of the common law, it must be construed strictly.
    
    The act provides that. the owner of an estate by the curtesy shall not convey or incumber such' estate unless his wife shall join with him in such conveyance or incumbrance, in the manner prescribed by law in regard to her own estate. This provision presupposes that the wife is living and can join in such conveyance or incumbrance. The prohibition is, therefore, limited to the lifetime of the wife.
    Upon the death of the wife, an estate for her surviving husband’s life vests absolutely in him, in all the lands of which she died seized in fee simple. Hall v. Hall, 37 Ohio St., 184. Subject to such life estate, the fee vests either in the heirs or the devisees of the wife. The act under examination does not provide for the assent of such heirs or devisees to any conveyance or incumbrance of the husband’s life estate after the death of wife, when she cannot join therein. If the intention of the general assembly had been to prohibit the husband from conveying or incumbering his estate' by deed or mortgage executed after his wife’s death and the estate had vested absolutely in him, unless, the owner of the fee in remainder joined therein, they would have expressly so provided.
    We do not believe this court can he persuaded that the legislature intended by this statute to innovate upon the settled policy of subjecting a debtor’s real estate to the payment of his debts, and to provide in favor of a class exemption of unlimited value, several years before public sentiment was supposed to warrant even “a homestead exemption.”
    
      A. L. Neely and J. T. Holmes, for defendants in error.
    The several statutes relating to the question in the case are: the act of February 28, 1846 (44 Ohio L., 75) ; act of February 5, 1847 (45 Ohio L., 23); and the act of April, 1861 (58 Ohio L., 54) which last act controls the rights of the parties to this suit. For a construction of these several acts, see Spinning v. Blackburn, 13 Ohio St., 131; Lessees &c. v. Green, 4 Id., 232; Newton v. Clark, 1 Disney, 265 ; Jenney v. Gray, 5 Ohio St., 45; Bruner, v. Briggs, 39 Id., 478; Leggett v. McClelland, Id., 624; Hershiser v. Florence, Id., 516.
    'Under the act of 1846 the interest of the husband, curtesy expectant or curtesy initiate, was not taken away. By the act of 1861, under the holding in Leggett v. McClelland, it was wiped completely out of existence.
    In the light of these decisions, and of the language of the section that gives rise to this controversy, the meaning, the intent, of the legislature ought not to be difficult to determine.
    “ This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease.”
    
      With the breath that gave life to the preceding portion of the section, the law-making power had blown awaj'- every vestige of curtesy interest, by whatever name it might be called,- during the lifetime of the wife. That interest had, from the act of 1846 down to 1861, been under the exemption, mentioned in Bruner v. Briggs, from process for the payment of the husband’s debts, and from alienation by him without the joinder of the wife.
    The language used in expunging it, like the act of 1846, was susceptible of being construed to reach beyond the purpose of the legislature, and was liable to give rise to controversy.
    “ Guarding against an improper construction,” the general assembly at once, in this instance, said the estate after the wife’s death was not affected by the act.
    Continuing the quotation from the statute — “ but during the life of such wife, or any heir of her body, such estate shall not be taken by an3r process of law for the payment of his debts, or be conveyed or incumbered by him unless she shall join,” &c.
    The “ interest ” in the husband is not affected — acted upon — but the power of creditors to reach it, and the power of the husband to alien or encumber it, are affected. These powers are no part of the “ interest ” or its definition.
    A man’s title to his horse is perfect, although it ma}r be unlawful to race with that horse through the streets of a crowded city, or speed him over bridges making a part of the highway, or for a constable to seize and sell him on execution, despite the demand of set-off under the exemption laws.
    The homestead cases of McComb v. Thompson and Roig v. Shultz, just decided by the supreme court, afford an illustration.
    The inhibition of the statute against creditors taking away the title during occupan}’- as a homestead, in no wise affects the title or estate.
    To repeat, these limitations are upon powers, not upon the estate. Possibly the language'used in the section is not perfect. It is clear, however.
    
      If the doctrine of the Leggett v. McClelland case is sound, the husband has no estate during the life of his wife, and yet the language of the statute is that during Tier life such estate shall not he taken.
    
    There is no want of clearness. It must be remembered that there is a kind of grouping in two places, or clauses, in this part of the section. Let us see:
    
      Such estate shall not be taken hy any process of law for the payment of the husband’s debts during — what ? — during the life of the wife, or any heir of her body.
    Now, technically, that has in it a prohibition against an impossibility, for, during the life of the wife, by existing statutes, a husband has no estate or interest in the separate property of his wife; but, embracing the policy of the act of 1846 in that clause, it embraces the same policy in the next, and prohibits a possibility.
   Granger, C. J.

In Canby v. Porter, 12 Ohio, 79, decided at December term, 1848, Lane, C. J., said: “ The interest of the husband is a legal estate: it is a freehold during the joint lives of himself and wife, with a freehold in remainder, for himself for life, as tenant by the curtesy, and a remainder to the wife and her heirs in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well known rules. It is in every sense his ‘land' within the meaning of the statute, and liable to respond for his debts.”

This was the law until February 28, 1846, when “An act in relation to the interest of husbands in the estate of their wives ” took effect. I quote the first two sections of this act:

“ Section 1. That the interest of any married man in the real estate of his wife, belonging to her at the time of their intermarriage, or which may have come to her by devise, gift or inheritance during coverture, or which may have been purchased with her sole and separate money or other property, and during her coverture, shall have been deeded to her, shall not be liable to be taken by any process of law or chancery for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body.”
“ Section 2. All conveyances and incumbrances of the husband’s interest in the real estate of the wife, in the first section mentioned, shall be void and of no effect during the life of the wife, and during the life or lives of the heir or heirs of her body, unless an instrument of such conveyance or incumbrance shall have been executed, attested and acknowledged according to the laws of this state, for the conveyance or incumbrance of the estate of the wife in lands, tenements and hereditaments situate within this state.”

This act was repealed' by the act of April 3, 1861, (58 Ohio Laws, 54,) of which the first section reads thus :

“Any estate or interest,legal or equitable,.in real property belonging to any woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, shall, 'together with all rents and issues thereof, be and-remain her separate property, and under her control; and she may, in her own name, during coverture, lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him, unless she shall join therein with him in the manner prescribed by law in regard to her own estate.”

It is urged that the words, “ This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease,” control the entire act, and that the only conveyances, or incumbrances, forbidden are those executed during the coverture, in which the wife is not a grantor. But those words do not constitute a complete and independent sentence. They form the first clause of a compound sentence, and are, themselves, limited and qualified by tbe words that follow “ but.” It seems to us that this “ but ” means “ except that.” Thus read the entire sentence declares that “ This act shall affect the estate by the curtesy of any husband in the real property of his wife after her decease no farther than this, to wit: during the life of such wife, or of any heir of her body, such estate shall not * * * be conveyed, or incumbered, by him unless she shall join therein with him in the manner prescribed bylaw in regard to her own estate.” Under this construction full effect is given to all deeds and mortgages of her own estate legally made ; that is, duly executed and acknowledged by husband and wife. As the property is hers, the legislature does not attempt by new enactment to interfere with her control, farther than to provide a safe mode for ascertaining and attesting that it is Tier deed, or mortgage. The requirement that the husband should join in the conveyance is simply a repetition of a rule of law older than our state. But so long as the wife, or her child, survives, no act, or omission, of the husband alone shall enable a stranger to possess her land, as owner or incumbrancer.

A comparison of section two (2) of the act of 1846 with section one (1) of the act of 1861, favors this construction. The former declared that all such conveyances and incumbrances “ shall be void and of no effect during the life of the wife and during the life or lives of the heir or heirs of her body, unless, &c.” It was possible to understand this language as applying only to conveyances, or incumbrances, made during the life of the wife. But the words “ during the life of such wife, or any heir of her body, such estate shall not * * ® be conveyed, or incumbered, by him unless, &e.,” are unambiguous. .The time within which the husband is forbidden to convey is “ during the life of any heirs of her body,” as well as “ during the life of such wife.”

This may be unwise legislation; with that we have nothing to do. The best way to get rid of an unwise statute is to enforce it according to the meaning of its words as used. The children being the persons for whose protection the mortgage was prohibited, should be held sufficiently interested to be heard against the attempt to enforce it.

Judgment affirmed.

Martin, J., dissented.  