fused to recognize the wife's power of attorney as valid when it is made to the husband.1

$118. Wife Acting as Feme Sole.-Abandonment.

The general rule of the common law is that where the husband absolutely deserts his wife, or leaves the state without any intention of returning, or is civiliter mortuis, his wife is regarded as a feme sole, and may hold and convey property as such. It follows that her conveyance, in such case, may be made without privy examination; the theory of the law being that, as to her contracts, she has no husband, or is already separate and apart from him, so as to be freed from that presumed coercion against which the law ordinarily seeks to protect her. In a case where the husband was absent for five years, not contributing to the wife's support, so far as the evidence disclosed, although she visited him once or twice during the time, a deed by her alone, without privy examination, was upheld. While the

A married woman signed and duly acknowledged a deed of her property, in which the grantee's name was left blank. and the consideration was recited at $1.500, that being the price at which she was willing to sell. Her husband, without consulting her as to taking a less price, accepted $1.000 from a purchaser, filled in the purchaser's name, and delivered the deed. No question is made by the court as to the sufficiency of the parol authority to the husband to fill the blank with the grantee's name, but as he exceeded his authority in taking a less price, and as the purchaser was chargeable with notice of that authority by the recital in the deed of $1,500 as its consideration, it is held that no title passed. Cole v. Bamme, 62 Tex. 108.

1 Conner v. Boutwell, 53 Tex. 627; Peak v. Brinson, 71 Tex. 310.

2 Wright v. Hays, 10 Tex. 130; Hector v. Knox, 63 Tex. 613; Wheaton's Selwyn, title Baron and Feme; Gregory v. Paul, 15 Mass. 31; 17 Serg. & R. 130; Ann Berta Lodge v. Leverton, 42 Tex. 18; Clements v. Ewing, 71 Tex. 370; 2 Vernor, 104, 614. So held where a presumption of the husband's death existed. Rosenthal v. Mayhugh, 33 O. St. 155, and see Patterson v. Lawrence, 90 Ill. 174.

3 Wright v. Hays, supra. And so held in a case where the husband being arrested for a crime broke jail and escaped. Cheek v. Bellows, 17 Tex. 613. Again affirmed in Fullerton v. Doyle, 18 Tex. 4, where it is said that evidence as to the period of abandonment is not material except to show that the abandonment is not temporary in its character; also in Kelley v. Whitmore, 41 Tex. 648. The wife, when abandoned, may convey her separate property without the existence of any necessity for the

current of decision justly supports this view of the law, there is at least one case of high authority to the contrary.1

Where a married woman holds herself out as unmarried for a long period of time, living apart from her husband, she will be held estopped by her conduct from calling to her aid the statutes relating to the acknowledgment of deeds, for the purpose of defeating her conveyance.

$119. Re-acknowledgment and Ratification.

Where a deed is void as to the wife for want of proper acknowledgment, a re-acknowledgment by her after her discoverture will operate to give it full force and effect, and will relate back to the date of the original delivery, where the rights of third parties have not intervened.3 sale; but, aliter, it seems, as to community property. Clements v. Ewing, 71 Tex. 370.

1 Rhea v. Rhenner, 1 Pet. 105; s. c. 7 Curtis, 478, where it is held that although the husband had been absent for five years, contributing nothing to the wife's support, and although she might contract debts as a feme sole, yet she could not convey real property without the joinder of the husband and the privy examination.

2 Reis v. Lawrence, 63 Cal. 129; s. c. Am. Rep. 83; Ogle v. Ogle, 41 O. St. 359; Hand v. Hand, 68 Cal. 135; s. c. 8 Pac. Repr. 705. But where the matter of estoppel is not involved, it is held that under Civ. Code Cal., §§1186, 1191, making a certificate of privy examination and explanation essential to the validity of the wife's deed, there is no exception for the case of a married woman living separate from her husband, and a conveyance by such a woman, of land constituting her separate estate, without such certificate, is void, and this result is not affected by $192, providing that a wife may convey her separate property without her husband's consent. Danglade v. Elias (Cal. 1889), 22 Pac. Repr. 69.

A woman who is living apart from her husband under a decree of separation is a feme sole entitled to convey her property as such. Piper v. May. 51 Ind. 283; Delafield v. Bradley, 108 N. Y. 524; s. c. 15 N. E. Repr. 428; 11 Cent. Repr. 315; Coleman v. Coleman, 37 La. Ann. 566. The rule is not applied where the husband is insane. Heidenheimer v. Thomas, 63 Tex. 287; and see, further, Richeson v. Simmons, 47 Mo. 20; Cullers v. Henry, 66 Tex. 497. In New Hampshire, six months' residence apart from the husband authorizes her to convey alone. Gen. Laws, 1878, ch. 183, §4.

3 Riggs v. Boylan, 4 Biss. 445; Cahall v. Citizen's Association, 61 Ala: 233. But a deed not acknowledged by the wife until after suit filed for the land by the grantee, cannot be introduced in evidence. Carn v. Haisley, 22 Fla. 317, citing Hollingsworth v. Flint, 101 U. S. 591; Jones v. Loftin, 16 Fla. 189.

After a conveyance by her of the property to a third person, a re-acknowledgment comes too late, as no title passed by the original instrument. So, the wife, after becoming sole, may ratify and make effectual the deed by re-delivering it,2 or by such conduct and acquiescence on her part as will be held equivalent to an express ratification. The courts, however, are not agreed as to the character and extent of the acts and proof necessary to constitute a sufficient ratification, as will appear by reference to the cases cited in the notes below.4

1 Durfee v. Garvey, 63 Cal. 406; Enterprise Co. v. Sheedy, 103 Pa.

St. 492.

2 Smith. v. Shackelford, 9 Dana, 476; Jordan v. Jordan, 9 Serg. & R. 268; s. c. 11 Am. Dec. 724; Newell v. Anderson, 7 O. St. 12.

3 Long acquiescence after discoverture held sufficient. Conklin v. Bush, 8 Pa. St. 517. So, payment by her, as widow, of the interest due on a mortgage. O'Keefe v. Handy, 31 La. Ann. 832. Or receipt of payment by her, as widow, for the land conveyed. Hodges v. Powell, 96 N. Car. 64; s. c. 2 S. E. Repr. 182. The re-delivery may be proved by circumstances. Carter v. Strapham, Cowp. 201. See also, Spafford v. Warren, 47 Iowa, 47.

Evidence such as in the case above, held incompetent to establish a ratification. Price v. Hart, 29 Mo. 171. Proof that the widow knew of the defective acknowledgment, and said that she had confirmed the deed, held insufficient proof of a re-delivery, it not appearing that she knew an actual re-delivery was necessary. Smith v. Shackelford, 9 Dana, 476.

Under the Ohio and Virginia statutes, à deed by husband and wife, conveying the wife's land, is inoperative to pass her title, unless the husband, she having duly acknowledged the deed, has, in her life-time, and by an acknowledgment in the form prescribed by law, signified his consent to such conveyance. His acknowledgment made after her death is of no effect. Sewall v. Haymaker, 8 Sup. Ct. Repr. 1348; s. c. 127 U. S. 719. So, in Alabama, where a married woman signed and acknowledged a deed of her land, but it was not signed and delivered by her husband until after a bill filed to subject the land to her debts, it was held that there was no alienation of the land until after suit begun. Code of Ala., §2348; Rooney v. Michael, 84 Ala. 585; s. c. 4 South. Repr. 421; Carn v. Haisley, 22 Fla. 317; Hollingsworth v. Flint, 101 U. S. 591.

Smith v. Head, 75 Ga. 755.

Where the husband forged his wife's signature to a mortgage, and procured a notary to give a false certificate of acknowledgment, and she afterwards was induced by the notary to sign and acknowledge, before another notary, an instrument attempting to ratify the mortgage, it was held ineffectual, as criminal acts are incapable of ratification. Howell v. McCrie, 36 Kan. 636; s. c. 14 Pac. Repr. 257, citing Workman v. Wright, 33 O. St. 405; s. c. 31 Am. Rep. 546.

120. Validating Deeds of Married Women.

Legislative acts validating conveyances of married women defective by reason of imperfect acknowledgment or certificate thereof, have been constantly assailed as unconstitutional, because impairing vested rights, and in some in-. stances the objection has prevailed;1 the position being that as title does not pass by the defective deed in such case, it is made to pass by virtue of the statute alone. Happily this view has not largely prevailed,2 and yet it must be confessed that it is in harmony with the general tenor of the decided law relating to the separate acknowledgments of married women.

In many instances this curative legislation has been designed to remedy formal errors only, and to heal defects in the certificate only where the acknowledgment was in fact properly made. The courts in affirming the constitution

1 Alabama Ins. Co. v. Boykin, 38 Ala. 510; s. c. 65 Am. Dec. 349; Elliott v. Peirsoll, 1 McLean, 11.

2 For cases sustaining the validity of these acts see ante, $97; Barnett v. Barnett, 15 Serg. & R. 72; s. c. 16 Am. Dec. 518; Lycoming v. Union Bank, 15 Pa. St. 171; Webb v. Den, 17 How. 577; Dulaney v. Tilgham, 6 Gill & J. 461; Watson v. Bailey, 1 Binn. 476; Johnson v. Richardson, 44 Ark. 365; Watson v. Mercer, 8 Pet. 88.

Deeds of married women take effect against intervening purchasers only when properly acknowledged and registered, and cannot relate back by amendment or validation so as to effect them. Coal Creek Co. v. Heck, 83 Tenn. (15 Lea), 497, 513, citing Harrison v. Wade, 3 Cold. 565; Fall v. Roper, 3 Head. 486.

A wife joined with her husband in a conveyance of his separate real estate, but neither the deed nor the certificate of acknowledgment contained any words relinquishing dower. An act validating acknowlments defective because of "any words omitted" therefrom was held to apply; it being presumed, as she had no other than a dower interest in the land, that she joined in the deed for the purpose of conveying it, and that the officer had omitted the appropriate words of relinquishment from his certificate of her acknowledgment in ordinary form. Johnson v. Parker (Ark.), 11 S. W. Repr. 681.

3 Chestnut v. Shane, 16 Ohio, 599; Cooley's Const. Lim., 463, 467; Hollingsworth v. McDonald. 2 Har. & J. 230; s. c. 3 Am. Dec. 540; McDannell v. Horrell, 1 Tex. Un. Cas. 521; Raverty v. Fridge, 3 McLean, 230; Johnson v. Taylor, 60 Tex. 360. This last case involved the constitutionality of an act providing for the correction of defective certificates by a suit in court for that purpose. ln an able opinion by Justice Stayton, it is said that the statute applies in cases of married women's acknowledgments as in those of

2

ality of these statutes have declared that the mere making of the certificate is a formal act which the legislature might have dispensed with in the first instance, and in the place of which it may afterwards substitute other evidence, without depriving any one not entitled to protection on equitable grounds, of any right in law or morals.1 The courts, however, have gone further than this, and have held that although the acknowledgment may not in fact have been made in compliance with law, or may not have been made at all, and on account of this the deed may not have passed the wife's title, yet that it is within the power of the legislature, by a subsequent statute, to validate the instrument and give effect to the intention of the parties. Such an act, said the Supreme Court of the United States, does not impair the obligation of any contract either in its terms. or its principles. It supposes the titles of femes covert to be good, however acquired, and provides that deeds of conveyance made by them shall not be void because there is a defective acknowledgment of the deeds by which they have sought to transfer the title. So far then as it has any legal operation, it goes to confirm and not. to impair the contract of the femes covert. It gives the very effect to other persons, citing Webb v. Den, 17 How. 578; that the certificate of the officer is but a formal act to give evidence of the acknowledgment actually made; that the rules of law pertaining to remedies and evidence do not ordinarily enter into nor form a part of any contract, nor can they be regarded as being of the essence of any right a party may seek to enforce, citing Cooley's Const. Lim., 457; Smithwick v. Smithwick. 49 N. Y. 517; Howard v. Most, 64 N. Y. 268; Hepburn v. Curts, 7 Watts, 301; that the statute does not attempt to create a right where none before existed, but simply permits parties to show by the judgment of a court that which, before the statute was enacted, could be shown only by the certificate of the officer; and that a deed willingly executed by a married woman, and properly acknowledged by her, is not void because the officer has failed to make a proper certificate of the facts.

1 Johnson v. Taylor, supra; Cooley's Const. Lim., 463, 467, and cases there cited.

2 Barnett v. Barnett, 15 Serg. & R. 72; s. c. 16 Am. Dec. 518; Lane v. Nelson, 79 Pa. St. 407; Tate v. Stoolzfoos, 16 Serg. & R. 35; s. c. 16 Am. Dec. 546; Goshorn v. Purcell, 11 O. St. 641.