
    William H. Garvin and others vs. Benj. F. Ingram and others.
    
      Husband and Wife — Conveyance—Wife’s Inheritance.
    
    
      A wife may, under the Act of 1795, indirectly convey her inheritance to her husband; that is, she may join her husband in conveying to a third person, who, by previous understanding, may immediately re-oonvey to the husband.
    BEFORE WARDLAW, CI-L, AT BARNWELL,
    FEBRUARY, 1857.
    . Every thing necessary to a full understanding of this case, may be found in the Circuit Decree, which is as follows :
    Wardlaw, Ch. Lucy E. born Dunbar, married 1st, Patrick, who died intestate, leaving some estate of which his widow, Lucy, and two daughters, Caroline, who became the wife of W. W. Garvin, and Laura, who became the wife of J. J. Wood, were the distributees. 2nd. Minor, her overseer, who died without issue of the marriage and intestate, leaving her lands improved in value by his good management; and 3d, on July 15, 1847, B. F. Ingram, her overseer, at which date she was well advanced in years, and he a very young man. This last marriage was distasteful to her daughters, but it is admitted that Ingram is a respectable and worthy man, and that he uniformly treated his. wife with courtesy and kindness.
    At the date of this marriage, she was seized of about 5,000 acres of land, and afterwards, on February 2, 1848, her husband and herself joined in executing a release of 2,035 acres of this land to her brother, George R. Dunbar, and ten days after, she "formally renounced her inheritance, and on May 31, 1848, the release and renunciation were duly recorded. On July 1, 1848, Dunbar reconveyed the land to B. F. Ingram, in fee, and the conveyance was recorded in the month of October next, succeeding. Both of these deeds express a valuable consideration of $2,000, but it is admitted that in neither instance was any money paid or promised, and that although the formalities prescribed by the Act of 1795, 5 Stat. 256-7, were strictly observed, the whole purpose of the deeds was to vest the fee of the land in the husband by gift of the wife; still, that whatever may be the legal presumption as to marital coercion, the wife acted throughout from the dictates of her own will. Lucy E., Ingram died February 19, 1856, \ intestate, seized undisputedly of 2,400 acres of land, subject 'to distribution among her distributees, her said husband,B. F. Ingram, three children of her pre-deceased daughter, Caroline Garvin, and eight children of her daughter, Laura Wood; the husband of said Laura pre-deceasing, by a few days, the death of her mother, and Laura, although surviving her mother, dying a few days after the date of her mother’s death.
    The bill is for partition of Lucy Ingram’s lands, and it is undisputed that B. F. Ingram is entitled in the 2,400 acres to one-third, the children of Caroline Garvin among them to one-third, and the children of Laura Wood to the remaining third among them ; and the question in the case submitted for judgment is, whether these distributees be entitled in the sam'e proportions, to the 2,035 acres conveyed by the deeds aforesaid, or B. F. Ingram be exclusively entitled to this tract; in other words, whether a wife, by pursuing the forms of the Act of 1795, can give her real estate to her husband.
    This question was ably discussed by the counsel on both sides, yet my original impression remains unshaken, that the fee in the tract in controversy was well conveyed to the husband, conceding to the fullest extent the propositions, that by marriage the wife loses to a great extent her free agency, and becomes subject to the dominion of her husband; that she cannot contract with her husband or other person, except to such extent as some deed of settlement may empower her to deal with her separate estate as a feme sole, or the Legislature may authorize'her to deal with her estate generally; that her executory agreement concerning her estate, even if lawful, cannot be usually enforced against her when she becomes discovert; that her dealings with her husband are watched with jealous suspicion; and these were the general topics most strongly urged for the plaintiff, and others in the same interest. The inference is not consequential, that she cannot convey to her husband, if they unite in pursuing the mode prescribed by the Legislature. Her disability by common law has been removed to such extent as the Legislature has-chosen to enact. Even in England, the fatherland from ■ which we have derived most of our institutions, a wife is not precluded from conveying or encumbering her inheritance for the benefit of her husband, where her deliberate purpose to this end has been duly manifested. Upon marriage the husband’s real estate continues to belong to him exclusively, subject to a contingent right of dower,-and the wife has no power to alien or encumber any part thereof; in her unsettled real estate, the wife, during coverture, ceases to have control or disposition, except with the husband’s consent; and he, as lord of the house, acquires dominion and right to charge or alien, except as to her ultimate fee, where this by statute or custom is reserved to her. Her power over her estate is large where she co-operates with her husband considerately and freely— very slight without his consent. By joining her husband in levying a fine, or suffering a common recovery, the law allows her to pass her estate absolutely for his benefit, or to charge it as security for his debts, provided her desire to do so be deliberately formed, and be expressed to a Court of Justice, upon private examination, after proper information to her of her rights, and of the effect of her proposed act: 1 liop. Hus. & W. 139, 2 Vent. 30, 12 Co. 123, 124, 10 Co., 43 a, 10 Ves. 5S7. Our older acts of conveyancing, of 1731 and 1785, and, to some extent, our Act of 1795, have been judicially treated as legislative substitutes for fines — Gough vs. Walker, 1 N. & McC. 469; Eottman vs. Ayer, 1 Strob. L. 552. Passing by our older Acts, as substantially abrogated, the Act of 1795, (while it provides, as safeguards, for the wife’s freedom of action, that she shall join her husband in releasing her inheritance, that she shall, after the lapse of a week at1 least, express her free consent to the conveyance, upon private examination before a judge or magistrate of the vicinage, and that the conveyance shall not be complete until recorded,) no longer requires that the joinder and voluntary action of the wife shall bo matters of record in a Court of Justice, according to the procedure in fines and recoveries. The general design of the ■ Legislature, in this enactment, seems to be, while protecting )her from actual coercion of the husband, to make more facile the means by which she may, with their common consent, dispose of her estate, or, in other terms, to increase her opportunities of exhibiting intelligence and will in the disposal of her estate, and not to diminish her previous power when demanded by affection and duty, of coming to the aid of the head of the household with her own inheritance. The Act says, that any married woman, of mature years, entitled to inheritable real estate, who may be desirous to join her husband in conveying the same “to any other person,” may effect her purpose by pursuing the forms prescribed. It is not required that the conveyance be on valuable consideration, but it is argued that as the conveyance must be'to a third person, not one of the grantors, the purpose to benefit the husband is unlawful, and annuls a conveyance nominally to a third person, really for the husband’s profit. This conclusion is illogical. The Act makes no change of the common law inhibiting one from conveying to himself, Fryerson vs. Fryerson, 3 Strob. L. 461, but it authorizes, or at least does not inhibit the power of a wife to bestow her estate upon her husband indirectly. In many cases it is politic and dutiful that such power should be exercised. I trust that it may never be considered improper for a wife to contribute, by all lawful means, to the success of her husband’s enterprises. In the present instance the conveyance of husband and wife, was to another person, as required by the act, the brother of the wife under natural obligation to maintain the interest of his sister. I loathe the notion of imposing upon a wife, any restriction on her desire to aid and cherish her husband, v^hich common law and statute have not imposed. It is clear that she may mortgage her estate for his convenience, and on like reasoning she may surrender her ultimate interest in an estate to which she has a present title in freehold. Dr. Blackstone remarks, 2 Bl. Com. 88: that donees of fees conditional were careful to alien the estate as soon as they had performed the condition of having issue, and afterwards re-purchased the estate to enable it to descend to heirs general by the common law, and Judge Evans, in Kottman vs. fiLyer, 1 Strob. L. 570, says: “I have known more than one case where the forms of law (of 1795) have been observed, merely to- invest the husband with the fee of his wife’s land, by a re-conveyance from a pretended purchaser.” Judge Evans expresses no condemnation of this practice, on the contrary he proceeds to demonstrate the error of his opinion on circuit, that the wife, on her private examination before a magistrate,- was required to say that her conveyance was bona fide, and not pretensive, a real sale and not a mere color to transfer her inheritance, and, with the consent of his brethren, adjudges that bona fide execution of the instrument in the act, truly means previous execution for at least a week.
    Without further pursuing an argument by no means exhausted, I announce my opinion that B. F. Ingram is absolutely entitled to the 2,035 acres conveyed to him.
    It is ordered and decreed that a writ of partition be issued to partition the 2,400 acres, of which Lucy Ingram died seized, allotting one-third to B. F. Ingram, one-third, among the children of Caroline Garvin, and one-third among the children of Laura Wood. Survey and plats may be necessary, but this is within the discretion of the commissioners of partition.
    
      It is further ordered, that the costs of this litigation be paid from the lands ordered for partition, by the parties proportionately to their interests.
    The complainant appealed, on the ground that, by a proper construction of the A. A. 1795, the wife cannot renounce her inheritance to her husband, and, therefore, the children of Caroline Garvin and Laura Wood take the same interest in the 2,025 that they do in the 2,400 acres, and the writ of partition should have been ordered accordingly, for a partition of both tracts.
    
      A. P. Aldrich for appellant.
    
      J. T. Aldrich, contra.
   The opinion of the Court was delivered by

-Dunkin, Ch.

It is very difficult to add anything to the reasoning of the circuit decree, or the authorities there cited. The Act of 1795 was not intended to violate any principle of the common law. In Durant vs. Ritchie, 4 Mason, 45, the subject is discussed by Mr. Justice Story with his usual ability and diligence of investigation. After noticing that, by the common law, the only mode by which a wife could make a valid conveyance of her real estate, was by fine or common recovery, he states that the reason of her general disability may have arisen from the artificial rule that her separate existence is merged or suspended during the coverture; or (as he says) what is more probable, from the fear that her acts, during the coverture, might be exacted by the influence or compulsion of the husband. The exception introduced in favor of fines and common recoveries, countenances the latter supposition. For though, in their origin, these were presumed to be adversary suits, yet the principal reason assigned in the books for their conclusiveuess upon the estate of the wife, is that her voluntary assent is ascertained by the secret examination of the Court.” Again, at p. 61, “the feme coverte is not disqualified by the commin law from conveying; but her conveyance is required to be by some solemn act of record, whereby her consent, upon examination, may be known to be free and voluntary.” In reply to the objection that, by the common law, the husband cannot convey to the wife, or the wife to the husband, he says: In respect to the common law, the unity of persons, which arises from the relation of husband and wife, certainly prohibits a direct and immediate conveyance from one to the other from having any legal effect. But either may, at the common law, indirectly convey to the other through the medium of a trustee, or by any conveyance which operates a transmutation of possession. He instances among others, the case of a fine, “where the husband and wife may declare the uses of the wife’s estate, either to the husband, or husband and wife, as well as to any third person. In short, they have as effectual power to declare the uses in such case as any third person. So that (he adds,) so far as the objection rests on a general disability by the common law, it is not sustained, for it does not exist. The estate of the feme coverte, whenever it can be conveyed by her at all, can be conveyed to any uses whatever, and as well to the use of the husband as to any other use.” Such was the condition of the common law in respect to the efficacy of a fine. The first legislative enactment in South Carolina was the Act of 1731, 3 Stat. 303, which recognizes a pre-existing usage in the province, and declares that conveyances, by husband and wife, of the wife’s estate, certified by the Chief Justice as to the separate examination, &c., and recorded in the office of Pleas, “shall be deemed as effectual and valid in the law, to all intents and purposes whatsoever as any fine passed in due form of law in his Majesty’s Court of Pleas, at Westminster, for conveying of lands in Great Britain.” The Act of 1767, (7 Stat. 196,) did no more than to extend the authority of the Chief Justice to any of the assistant Judges, and thus stood the law until the Act of 1795, (5 Stat. 257.) In the meantime, so far as the books shed any light upon the subject, the practice of the country and the understanding of the profession had been uniform. Lloyd vs. Inglis, 1 Dess. 333, was a case of great interest, in which the most able and experienced counsel were mar-shalled on either side. It was twice heard before the Chancellors in 1793. Alexander Inglis “being desirous of having the real estate of his wife (formerly Mary Deas) vested in himself,” conveyances were drawn from Inglis and wife, to John Lloyd, and from Lloyd back again to said Inglis, in order so to vest the state in Inglis. Sometime afterwards Mrs. Inglis died, and, at no distant period, her husband followed ■ her. The bill was filed by the children of Mrs. Inglis, who . were represented by General Pinckney and Thomas Parker, Esq. The allegation was that the conveyances were intended to have been in trust for the benefit of the children, and the claim was successfully opposed by the creditors of Inglis, represented by Mr. Pringle and Mr. Rutledge. But if the deeds between Inglis and wife and Lloyd had not been as valid as a fine passed in the Courts of Westminster, the right of the children to the lands was patent and irresistible. So, in the recent case of Smith vs. Hilliard, 3 Strob. Eq. 211. Isham Williams and wife, by lease and release, twenty-seventh and twenty-eighth September, 1793, conveyed her real estate to Thomas Rivers. On third October, Mrs. Williams regularly renounced her inheritance, which was duly certified and recorded. Rivers re-conveyed to Williams, reciting the purposes of the parties. These papers were all prepared by General Pinckney. It was adjudged by the Court of Appeals that “ Isham Williams had a fee simple estate in the wharf described in the pleadings.” In that case it is true that the argument turned upon the estate which Mrs. Williams took under her father, Edward Shrewsbury’s will, and which was adjudged to be a fee simple; but, neither at the bar nor in the several opinions delivered, was any doubt expressed as to the effect of the deeds in vesting the wife’s real estate in her husband. Then the Act of 1795 purports, by its title, to provide a mode of facilitating the conveyance of real estate. The preamble recites that the conveyance by lease and release is expensive, and ¡is found by many of the inhabitants of this State to be very inconvenient ; for remedy whereof, a more simple mode is prescribed and declared to be effectual. By the same Act a manner of barring the inheritance of a feme coverte is prescribed. Every precaution is adopted for securing her separate examination and affording her time for reflection, as well as for giving publicity to the transaction, while, at the same time, the conveyance of her interest is facilitated by extending to Justices of the Quorum the authority to take her acknowledgment, &c. This is the whole purpose and effect of the Act of 1795. By the common law she and her husband might, by fine, declare the uses of her estate either to her husband, or to any third person. The unity of their persons prohibits a direct conveyance from one to the other; but, as Mr. Justice Story remarks, either may, at the common law, indirectly convey to the other through the. medium of a trustee. No part of the Act of 1795 discountenances such proceeding, or intimates any restriction on the power of the wife, or incapacity on the part of the husband.

It is ordered and decreed that the appeal be dismissed.

Dargan & Wardlaw, CC., concurred.

Appeal dismissed.  