Meagher v. Thompson

By the Court, McKinstry, J.: Complaint in ejectment in the ordinary form. Answer denying title in the plaintiff and admitting the defendant’s possession.

The premises in controversy being the separate property of the plaintiff, her husband, James Meagher, executed his power of attorney, which purported to constitute the plaintiff his attorney with power to grant, bargain and sell, convey or mortgage the same “for such sums or price and upon such terms as she shall see fit to make,” and to execute and acknowledge sufficient conveyance, etc. It is claimed by defendant that the plaintiff, in her own and her husband’s name (as attorney-in-fact of the latter), executed, acknowledged and delivered—for a valuable consideration —to the defendant a deed of conveyance of the premises.

The statute in force at the time of these transactions read: “ The husband shall have the management and control of the separate property of the wife during the continuance of the marriage; but no alienation, sale or conveyance of the real property of the wife, or any part thereof, or any right, title or interest therein, and no contract or power of attorney shall be valid for any purpose, unless the same be made by an instrument in writing, executed by the husband and wife, and acknowledged by her, as provided in the acts concerning conveyances, in case of the conveyance of her separate real estate.” (Statutes 1862, p. 518.)

Were the matter res integra, we should, perhaps, give more weight to the able and ingenious argument of counsel [191]for respondent; but we deem the construction of this statute settled by authority. In Ingoldsby v. Juan (12 Cal. 576), the Court said: “It will be observed that the estate is confessedly in the wife; her title it is that is to pass; the joining of the husband is not for the purpose of passing the title. It is only as a precaution against imposition, or to afford her his protection, or similar reasons of policy, or to evidence his renunciation of the right to manage and control it.”

Assuming that the purpose of the statute was the protection of the wife, this protection can be made effectual only by requiring the husband to exercise his judgment in respect to each transaction of the wife with respect to her real estate. No sale shall be valid unless assented to by the "husband. The signing of the instrument in writing by the husband is made evidence of his assent to the sale as well as to the conveyance, but the power of attorney which purports to authorize the wife, in advance, to make any sale “ for such sum or price, and on such terms ” as she might deem proper, cannot be made to operate as an abdication by the husband of that discretion, which he was bound to exercise. The duty imposed by law on the husband required the employment of a discretion which he could not delegate; which he was compelled to exercise himself, and in a particular manner—the mode entering into and forming part of his obligation. “He must not only assent in fact, but he must manifest his assent by his signature to the instrument in writing. The statute has in effect prescribed that the only evidence competent to prove his assent is his signature, which must appear on the face of the instrument.” (Dow v. G. & C. M. Co. 31 Cal. 655.)