
    The President, Directors, and Company of the Concord Bank vs. John S. Bellis & another.
    A married woman, whose husband had temporarily deserted her, and had been absent from the country several years, bought a tract of land and immediately mortgaged it back to secure the purchase-money. Held, that the mortgage was void, and not merely voidable.
    Writ of entry. The whole case sufficiently appears in the opinion of the court.
    
      J. S. Keyes, for the demandants.
    
      B. F. Butler, for the tenants.
   Shaw, C. J.

The facts of this case are these: Nancy B. Hill, a married woman, now deceased, whose husband had been sometime absent from the country, having children by a former marriage, some of whom are the tenants in this suit, in 1842, took of Amos Wheeler a conveyance of a lot of land in Waltham, in her own name, being the demanded premises, and at the same time gave back to Wheeler a mortgage in fee, to secure §350. This mortgage was duly assigned to the demandants, who made entry thereon for condition broken. Another .mortgage was afterwards made by said Nancy B. Hill, still being a married woman, to one Johnson, for §700, which also came to the demandants by assignment. This does not seem to us to vary the question.

The question is whether the demandants, claiming under mortgages made by a married woman, whose husband has been and is a citizen, but who has temporarily deserted his wife, can maintain this action. We are not aware that it makes any difference that the tenants are the heirs at law of Nancy B. Hill. We suppose it will not be contended that the conveyance of the estate to a married woman, absolutely and without condition, vested the estate in her; i. e. constituted a joint seisin to husband and wife in her right during the coverture, and then to the use of the wife. But if it could be contended that the conveyance and reconveyance were dependent acts, constituting one transaction, so that if one was void, both were void, this would not aid the demandants; the result would be thi.t nothing passed by the deed to Mrs. Hill, and the fee remains in Wheeler and his heirs. The demandants must recover, if at all, upon the strength of their own title, whether the tenants can hold as heirs of Nancy B. Hill, or moL

15 among the familiar principles of the common law that a married woman is legally incapable of conveying her estate by cleed, and that her deed is void. Co. Lit. 42 b, & n 4. fér deeds are regarded not merely as voidable, but absoutely void both at law and in equity. Cruise Dig. tit. Deed, c. 2, § 24. So it is held in this commonwealth that the separate deed of a married woman is ipso facto void, and all the covenants contained in it. It is not voidable merely, but absolutely void. Fowler v. Shearer, 7 Mass. 14. But this distinction between void and voidable, a characteristic which to some extent distinguishes the deed of a minor, which he may affirm after coming of age, and that of a married woman which is incapable of ratification even after the removal of the disability, can have no influence in the present case. It does not appear that the disability of the grantor ceased during her life, nor is there any suggestion of any ratification subsequent to the origiiixal mortgages.

The consideration which sti ¡elk us at first as plausible, was the apparent want of equity, w ¡eré; a deed is executed conveying a title, and a deed is execu ced Vmd delivered back by the grantee to the grantor, creating but f momentary seisin in the grantee, that the one should be held valid, and the other void But as suggested before, if one were held to avoid the other; it would not help the demandants. It would leave the title in the original grantor, unaffected by the deeds. But there are other considerations growing out of the nature of the subject. A good conveyance may be made by deed poll to an infant, lunatic, or feme covert, although such grantee would be under legal disability to make a conveyance. It is true that in theory of law, the grantee in a deed poll is held to be a party by accepting the deed. But the deed does not derive its efficacy as a grant and conveyance from the act of the grantee in accepting, but from that of the grantor in executing it. In case of a plain absolute conveyance, without conditions, either no special acceptance is necessai-y to give it effect, or what is nearly the same thing, the acceptance of the grantee will be presumed. So the delivery of the deed to a third per=<*^ unconditionally, for the use of the grantee, gives effect to the deed. From these considerations it seems to follow taP-t bh® efficacy of a deed to transfer real estate by deed poll, doe's not depend upon the legal capacity of the grantee to transfer an estate by deed.

Supposing the estate to be weE vested by Wheeler’s dee in the grantee, a married woman, the question recurs whether he can derive title from her deed to him. It is said that the deeds being made at the same time, are to be deemed to relate to each other and to constitute one transaction. We think it is so, and that they should be construed together. But what is that one transaction ? An absolute conveyance in fee to the grantee, and a reconveyance void in law, made by one having no legal authority to contract. It :1s the ordinary case of a man who enters into a contract with one who has no legal authority to make such contract. This case is not even accompanied by the aEeged, though always vain apology, that the grantee did not know the fact which constitutes the grantor’s disabUity. He dim know that she was a married woman, though in our judgment that knowledge could make no difference in regard to tlis rights.

As the demandants ca(n make title only through the void deed of a married woman, which in law could convey no title, according to the report and the agreement of the parties, there must be Judgment for the tenants.  