
    Mary Glenn v. Bank of the United States.
    A feme covert’s execution of a deed, in conjunction with the attorney in fact of her husband, is valid and obligatory upon her.
    This cause was adjourned from the county of Hamilton.
    The case made by the bill, answer, and exhibits is this : Hugh. Glenn, in his lifetime, by power, of attorney, duly executed, and dated September 15, 1820, authorized, his brother, James Glenn, for him and in his name, to make sales of his estate, real, personal, or mixed, and to execute good and sufficient writings and deeds therefor. Under this power, and in pursuance of the authority conferred by it, James Glenn conveyed the premises, of which the petitioner now seeks to be endowed, to the Bank of Cincinnati, and the petitioner joined in the conveyance, and relinquished dower in the usual form. There is no defect in the execution or acknowledgment of the deed. The premises were subsequently conveyed, by an unquestioned deed, by the Bank of Cincinnati,'to the present defendants.
    Y. "Worthington, for complainant:
    By the laws in force when this deed was executed, there were but two ways by which the estates of femes covert could be conveyed or incumbered. The one was by deed in writing, signed and sealed by the husband and wife, acknowledged by them in the presence of two subscribing witnesses, and also before a judge of the common pleas or. a justice of the peace. 16 Ohio Stat. 253, sec. 2; 2 Chase’s Stat. 1041. The other was by a power of attorney executed by the wife, in conjunction with her husband, in which she relinquished--her estate or right of dower, and the title made under such power must include her name, and shall be valid in law to divest her of her estate or right of dower in 'the lands ^conveyed by virtue thereof. 16 Ohio Stat. 155, sec. 6; 2 Chase’s Stat. 1042.
    This conveyance does not come within the first mode, because the husband does not sign and seal the deed with the complainant, unless it be that the action of the husband, by his agent, meets the requisitions of the law; which leads us to an examination of the powers of that agent, their extent and object, as well as the scope and design of the laws then in force upon this subject.
    It is not denied but that the husband could constitute an agent to convey his estate under the laws then in force; but it is denied that he could constitute such an agent, whose conjunction with his wife would authorize the conveyance of her estate, because the law did not contemplate or provide for such a mode of conveyance. It can not be pretended that the husband, much less the wife, could pass the legal title of landed estates otherwise than according to the statute. By whatever modes legal estates may be transmitted elsewhere, it is certain they can not be transmitted here, except under the forms and solemnities pointed out by statute. The legal title must pass according to law, or not at all.
    The power conferred upon James Glenn, by the warrant of attorney, authorized him to convey the lands of Hugh Glenn, and not those of his wife, the complainant. The extent of the power is to control his own lands, his own estate therein, and not that of his wife. If this be the power, is it not manifest that Hugh Glenn did not authorize, by that warrant of attorney, the conveyance of his wife’s estate ? The power might extend to his own estate in lands belonging to his wife, but it did not extend to her rights, either in his own lands or those belonging to her in her own right. When, therefore, the agent, by the conjunction of the wife, attempted to convey her estate, he transcended his authority. If it be possible for the wife to pass her estate by a deed» executed in conjunction with an agent of her husband authorized to convey his (not her) estate, it would seem to follow that the wife might execute a separate deed and attain the same end, when her husband had previously, or subsequently should execute a deed to the same grantee ; because the consent, concurrence, or conjunction of action required by the statute, upon the part of the husband and wife, exists as fully in the one case as in the other. In neither is there any privity between the husband and wife, as to the rights of the wife, but their action is separate and distinct. The warrant of attorney sanctioned the grant of the husband’s rights ; it did not authorize the agent to act in behalf of the husband upon *the rights of the wife, even if such a thing would have been sanctioned by the law. If I be right in this construction of the power conferred by the warrant of attorney to James Glenn, it follows that the complainant is not precluded by the deed of September 9, 1820; because, as to her estate, the agent had no power to act for the husband, and his concurrence in her act, according to the law, does not take place.
    The object of the law, if I comprehend it correctly, was in every conveyance of the wife’s estate to obtain the united and concurrent action of the husband and wife, as well as the free will and consent of the latter. It, therefore, requires the joint personal action of the husband and wife, as well as the separate action of the wife, on a private examination, to prevent coercion. The statute requires, in express terms, the husband and wife to sign and seal •the deed intended to pass the estate of the wife. This is a personal action in which they must join. If it be a matter in which they can not join, section 6 of the act (2 Chase’s Stat. 1042), comes in and points out a mode for an agency through which they may act. This provision conduces to carry to my mind full conviction that the lawgiver intended that the deed to pass the estate under • section 2 (2 Chase’s Stat. 1041), should be executed in person by the husband and wife. If this view of the subject be correct, it follows that this deed was not executed in conformity with the statute •then in force; because the husband did not join in the deed with the wife. He did not join personally either in the deed or warrant of attorney, nor by his agent, even if the law tolerated that ■mode of passing the estate of the wife.
    Nor did this conveyance come within the other mode pointed • out by the statute, because the wife did not join in the warrant of .attorney to James Glenn ; and if she had joined, it would have been of no avail, as it did not authorize the passing of her estate.
    These were then the only modes known to our law, whereby the estate of a feme covert could be conveyed ; and this deed not being executed in conformity with either mode, does not preclude the complainant from advancing her claim to dower.
    It is, probably, unnecessary to refer to cases to guide us in the •construction of this statute; but, if it be necessary, it is believed the following cases are somewhat analogous to the one now under •consideration: 6 Wend. 1; 3 Paige, 483; 3 Mason, 347; 8 Conn. 544 ; 3 Dana, 319. In the case of Gillespie’s Lessee v. Wiggins and Johnson, *Wright, 231, the construction of this statute came up before this court, though not in the precise aspect it now does, where it was held that a feme covert could only convey her estate in conjunction with her husband; they must both sign and. seal the same deed. That case was this : One Poster conveyed to Hargraves a lot, in Cincinnati, belonging to his wife. Hargraves ascertaining the title was in Mrs. Poster, obtained from her a deed executed by her alone, reciting the deed executed by her husband ; and it was held the wife was not barred, because the husband did not join with her in the deed. In the case of McFarland v. Pebiger,,7 Ohio, part 1, 194, I understand the court to decide the law as I claim it to be settled.
    
      N. 'Wright, for defendant:
    The right of dower depends on the legal effect of the power of attorney from. Hugh Glenn, husband of the petitioner, to James Glenn, dated April 15, 1820, and the deed made by the attorney for Hugh Glenn, and the complainant, Mary Glenn, in person,, dated Sejytember 9, 1820.
    The complainant contends that she has not barred herself of dower by joining in person, in a deed which her husband executed by attorney.
    
    For the defendant, we contend that such an execution bars dower.
    The power of attorney was executed under the statute of January 30, 1818, 2 Chase’s Stat. 1041; and the deed under the statute-of February 24, 1820. 2 Chase’s Stat. 1139. -
    On common law principles a man may make a deed by attorney, as well as in person ; it is an act which of course may be done by attorney, and in legislation, as well as in pleading, his deed made-by attorney is spoken of as his deed, no distinction being made-between the two modes of execution. Of course, when.our statute provides that a man may convey lands by deed so and so executed, it includes execution by attorney, as well as in person.. No special statute is necessary to authorize the execution by attorney. This principle, therefore, may be taken as settled, that the statute-providing how deeds shall be executed, includes, in the same general language, executions in person and by attorney.
    
    This principle probably does not apply to an execution by a married woman, because her power to convey is purely statutory, *and when the statute empowers her to convey by joining in a deed with a particular acknowledgment, there is no power given to make such acknowledgment to a warrant of attorney.
    Again, there are some other familiar principles, which must be-kept in mind. Our statute first authorized a married woman to-convey by joining her husband in a deed. Afterward a provision was introduced, authorizing her to convey by joining her husband in a power of attorney. Now it is evident that this last provision was intended merely as an additional facility, not intended to restrict or limit the power of conveying in any other form; but. adding to the facilities of conveying already provided. Before, she could, convey by joining in a deed; now, she can also do it by joining in the power of attorney.
    Putting together the two principles above stated, what will bo the result? Before the provision for the power of attorney, the general language of the statute, authorizing a deed by husband and wife, would include deed by attorney as well as in person; and of course authorized a deed like the present, where the husband joins by attorney and the wife in person. The subsequent provision for a power of attorney for the wife, does not limit, but extends, this remedy; of course, the same construction must now be given to the same language, and the deed in question is a valid bar of dower.
    It has been argued that the statute intended to secure to the wife* the protection of the presence and personal advice of the husband in the act of executing the deed, or power of attorney, and therefore must be construed as not authorizing any other execution than where they are both personally present.
    The statute does perhaps intend to protect the wife from impo'sition or persuasion, by requiring the husband to join, thereby giving his sanction to the deed. But that is all it requires. When a deed is. drawn for the husband and wife, and is signed by the-husband, that signature is the best proof that the wife can have of the approbation of the husband. Will any court sanction the principle, that the husband, after he had signed such a deed, thereby in the most solemn manner sanctioning it, should be encouraged to turn round and secretly dissuade his wife from signing it?' Surely not. Tet such must be the result of this principle, as contended for on the other side. The statute requires the signature-of the husband, thereby insuring his sanction of the conveyance, but could not insure any other kind of sanction without opening the door for private tampering against his own ^solemn pledge to Others. It could not, therefore, have intended any more than what it says; that is, that the husband shall join in the deed, but after that, leaving the wife to herself, whether she should sign or not.
    The language of the statutes corresponds with our views of the-case.
    The statute of February 14, 1805 (1 Chase’s Stat. 484, sec. 2), provides that husband and wife may execute deeds, and if she acknowledge, etc., on a separate examination, the deed is as valid as if she had been sole. The statute has no reference to power of attorney. It says nothing about a joint personal acknowledgment- or the actual presence of both; on the contrary, requires a separate examination of the wife.
    
      It seems to me no one could doubt, that under this statute the husband might join by attorney, and the wife in person, to bar ■her right.
    The next statute is that of January 20, 1818. 2 Chase’s Stat. 1041. Section 2 contains substantially the same provisions as the ■former.
    The language of section 1, providing for deed's by others than married women, is the same as section 2 ; and, if under section 1 a deed made by attorney would be included, it must follow that a ■deed of the husband, by attorney, would be embraced in the language of section 2.
    This statute (section 6) first provides for a power of attorney by the wife. This provision is clearly intended to extend the powers of the wife, not to take away any already given. The language is, “it shall be competent for the wife,” etc. It clearly intends to point out a mode by which the wife may make an attorney, and the form of the deed by her attorney. It has no reference to anything but the joint power of attorney; and the effect of such deed is to divest her estate “as effectually as if she had .signed and acknowledged the deed;” plainly indicating that her signature, without reference to the mode in which the husband executes, is a perfect execution.
    The power of attorney was made while this statute was in force. By section 5 of the act of February 24,1820, all instruments, etc., for the conveyance of real estate shall remain as valid as if the act of 1818 had not been repealed. By this act all the original ■effect of the power of attorney is preserved.
    The same general remarks apply to the statute of 1820 as are made above of the statute of 1818.
    *The evil intended to be remedied by these statutes is to enable tho wife, by a simple deed, to convey her estate or bar her dower. The English mode of doing this was by proceeding in court; and the chief object of this proceeding was to ascertain that the wife acted without the coercion of the husband — this was the sole object of the examination in court. So in our statutes, it is obvious that the sole object of the restrictions as to execution by the wife, is to guard her against coercion of the husband. The statutes are not designed to guard her against influence from .any other quarter; for, as to such, a married woman is no more liable to imposition than a single one. In construing these statutes, therefore, this chief object of them must be kept in view.
    It has been common for the husband to execute a deed in one place and the wife in another, making separate acknowledgments-to the same deed. These have always been considered valid, for the statute requires a separate examination of the wife, but does not require a joint acknowledgment. If it does, very few of our-acknowledgments are legal. Suppose the husband signs and acknowledges the deed at my office; the magistrate then calls at my bouse, where the wife signs and acknowledges, the husband not being present. This state of facts is consistent with the ordinary form of a magistrate’s certificate.
    It is held that this certificate must show all that is essential to the legality of the wife’s acknowledgment; still perhaps no certificate will be found that is not consistent with the above state of facts; and such certificates have often been, recognized in court. If it is not necessary to show that they came together in person and acknowledged, I see no reason why the acknowledgment by attorney is not strictly within the statute.
    Again, the statute contemplates a separate and independent act. of the wife. The object of it is to enable her to act for herself; to express her own free will, as a separate and independent person, in relation to her own individual rights; to give her an individual capacity to act, in disposing of her own rights, which she-had not before. In doing this, there was no special occasion to guard her against the frauds of third persons; the guards of the common law are sufficient in this case as well as in the case of an unmarried woman.
   Grimke, J.,

delivered the opinion of the court:

The question arising in this case is a new one; but as there are-no new principles of law it may not be difficult of solution. At-3=the time the deed was executed, the statute of January, 1818, was in force. That act prescribes two modes by which a married woman might release her right of dower; one by joining'in the-conveyance made by her husband; the other by joining in a power of attorney to convey. 'The conveyance to the bank appears to be illegal, because it does not pursue either of these provisions-singly; but if it is a combination of both, it will not, on- that account, be less firm and obligatory; on the contrary, the statute will. be as faithfully complied with as it would have been in the former case, as every statute, at the same time that it professes to ordain .a new rule, contains also a recognition of a great variety of old ones, by the assistance of which we are alone able to understand and interpret it; it becomes necessary to look both in and out of the statute whenever any controversy arises demanding a construction ■of it. A conveyance by a man, by attorney, is itself the creature of the common law ; it has not its origin in any statutory provision. Thus any one who had power to convey directly by deed had ■also power to convey indirectly by attorney. The two modes of conveyance are virtually the same; in both instances, the deed executed is the deed of one and the same person, and the instrumentality of the agent is no further regarded than as he identifies himself with his principal. The statute of 1818, not noticing, but necessarily recognizing these principles, has authorized a married woman to unite in ■.a conveyance made by her husband. Mrs. Glenn has actually made herself a party to a deed, which, in no view you can take of it, can be deemed to be the deed of any other person than her husband; and I do not see but what she is completely and fairly estopped from demanding an assignment of dower. The antiquated mode of barring dower is unknown in Ohio. We have adopted a more simple and enlightened form of proceeding, and it is greatly to the credit of English jurisprudence, that in its numerous efforts of late years to imitate our laws, it has not forgotten this feature of them ; a bill having been introduced into parliament authorizing the American mode of conveyance by husband and wife. If it should be ^aid that there is less solemnity attending it than the ceremony of fine, it may at any rate be asserted that it is better adapted to the advanced condition of women at the present day. Our laws are in reality, to a great extent, a transcript of our manners. If women, as well as men, have been lifted to a higher standard than when fines were invented, it is natural that the law, in every arrangement which it makes for the protection of their interests, ^should be accommodated to that altered condition ; and this affords a very good reason why we should not voluntarily apply any very nice and technical rules in the construction of a statute which is made in furtherance of, rather than in derogation of .the rights of married women.

There is no direct authority to be found on either side of the (question ; but there is a dictum of Parsons, in Fowler v. Shearer, 7 Mass. 21, which is entitled to notice. It says the consent of the husband to the conveyance of tho interest of the wife in lands) “ must be manifested by his joining in the deed, either in person or by attorney.” The case did not demand the determination of this point; however, the dictum of so profound a lawyer, who was not .accustomed to hazard any random opinion, is entitled to the greatest attention. It is evident that our law has two ends, apparently diverse and contradictory, in view. One is to protect the wife from the influence and persuasion of her husband; the other, regarding them strictly as but one person, renders it necessary that his consent should be manifested to the conveyance. The first is •accomplished by a separate examination of the wife, and the other by making him a necessary party to the deed. The mode of conveyance in this instance does not interfere with the first intention, but rather contributes to further it; nor does it interfere with the second, as it is impossible to imagine a more plain and unequivocal declaration of consent on the part of the husband, when the deed executed by him purports to be a conveyance of the entire interest in the land. If I could suppose a case in which a husband might execute a deed of this nature, and yet at the same time, fairly and without any design to commit a fraud, intend not to convey an absolute interest, I might hesitate ; but I can not suppose such a 'ease. I conclude, therefore, that Mrs. Glenn has precluded herself from demanding dower, and that the motion must be granted.  