Sims v. Everhardt

APPEAL from the Circuit Court of the United States for the District of Indiana.

This case shows that the complainant was married July 14, 1844, to John B. Sims. She was then a minor less than seventeen years old, having been born Sept. 25, 1828. Her father, April 3, 1845, conveyed to her in fee the tract of land in controversy, and, May 28, 1847, she, joining with her husband, executed a deed therefor to Magdalena Everhardt. The deed, subscribed by her and her husband in the presence of a magistrate, was acknowledged in due form, and the purchase-money paid. Mrs. Everhardt went into immediate possession, paid a mortgage upon the property, paid taxes, continued in possession, and made improvements until her death in 1871. The defendants are her devisees.

When the deed was made, some doubts appear to have been entertained upon the question whether the complainant was then of full age, and to remove them she signed the following statement, which was written on the deed:-

'The adove-mentioned Ann M. Sims, before the delivery of the above deed, and before the payment of the above money or any part thereof, voluntarily, and as an inducement to the said Everhardt to consummate the bargain, accept the deed, &c., states and declares that she was twenty-one years of age on the twenty-fifth day of September, A.D. 1846. Signed May 28, 1847, in presence of Sam'l E. Williams.

'ANN M. SIMS.'

There is evidence that early in her married life, before the deed was made, she received very ill treatment from her husband; that he insisted upon her selling the place; that he employed threats; that she became afraid of him; that a look from him would make her do almost anything; and that she knew nothing of any arrangement to sell the property until the deed was brought for her to sign in her own house.

On the fourteenth day of February, 1870, the complainant was divorced from her husband, for his own fault. In the month of March next following, or early in April, she disaffirmed her deed to Mrs. Everhardt and demanded possession of the land. Her demand not having been complied with, this suit was brought to set aside the deed, and for an account of the rents and profits of the land, as well as of the amount she is in duty bound to pay to the defendants on account of the purchase-money paid by the grantee, and the mortgage afore-said.

The other facts are stated in the opinion of the court. The Circuit Court, upon a final hearing, dismissed the bill. The complainant appealed.

When the deed was executed, the Revised Statutes of 1843 were in force in Indiana. Art. 2, c. 28, contains the following provisions:-

'SECT. 1. Every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise, or purchase.

'SECT. 2. Every person capable of holding lands, who may be seised of or entitled to any estate or interest in lands, except idiots, persons of unsound mind and infants, may alien such estate or interest at his pleasure, with the effect and subject to the restrictions and regulations provided by law.'

'SECT. 17. The joint deed of the husband and wife, upon complying with the provisions of the fortieth section of this chapter, shall be sufficient to convey and pass the real estate of the wife, but not to bind her to any covenant or estoppel therein.'

'SECT. 40. The acknowledgment of the execution of any deed or conveyance by which a married woman releases and relinquishes her dower in any lands conveyed, granted, or assigned by her husband, or by which the husband and wife convey the real estate of the wife, may be taken before any officer herein authorized to take the acknowledgment of deeds, but such acknowledgment shall not be taken by such officer unless he shall first make known to her the contents or purport of such deed or conveyance, and she acknowledge, on a private examination, separate and apart from, and without the hearing of, her husband, that she executed such deed or conveyance of her own free will and accord, and without any coercion or compulsion from her husband, all of which shall be certified by such officer in his certificate of such acknowledgment.

'SECT. 41. Any married woman over the age of eighteen years, and under the age of twenty-one years, may release and relinquish her right to dower in any lands of her husband, sold and conveyed by him, by executing, and acknowledging the execution of, such conveyance, as provided in the last preceding section, if the father or guardian of such married woman shall declare, before the officer taking such acknowledgment, that he believes that such release and relinquishment of dower is for the benefit of such married woman, and that it would be prejudicial to her and her husband to be prevented from disposing of the lands thus conveyed, which declaration, with the name of such father or guardian, shall be inserted as a part of the certificate of the officer taking such acknowledgment.'

1. The deed of an infant is merely voidable, and not void, although the grantor be a feme covert. This is the rule at common law. Zouch v. Parsons, 3 Burr. 1794. It has been recognized in this court and in the several States. Tucker v. Moreland, 10 Pet. 58; Irvine v. Irvine, 9 Wall. 617; 3 Washburn on Real Prop. 559, note 6, citing Phillips v. Green, 3 A. K. Mar. (Ky.) 11; Webb v. Hall, 35 Me. 336; and many other cases. It has been repeatedly so declared by the Supreme Court of Indiana. Doe v. Abernathy, 7 Blackf. (Ind.) 442; Hartman v. Kendall, 4 Ind. 403; Pitcher v. Laycock, 7 id. 398; Johnson v. Rockwell, 12 id. 77; Chapman v. Chapman, 13 id. 366; Miles v. Lingerman, 24 id. 385; Law v. Long, 41 id. 586; and Scranton v. Stewart et al., 52 id. 68. The last case fully disposes of every issue in this record, and led to the decree from which this appeal was taken. It has not been overruled or qualified by any later case.

In the absence of any decision by that court, we should suppose the deed of an infant feme covert, in which her husband joined, to be good and effective. By marriage, guardianship is terminated. This common-law rule has been declared expressly by statute in Indiana. The Revised Statutes of 1843, sect. 102, c. 35, enact that 'the marriage of any female, under guardianship as a minor, to any person of full age, shall operate as a legal discharge of her guardianship, in like manner as if she had arrived at full age.' The act of June 9, 1852, sect. 12, c. 4, omits the words italicized, and adds: 'And her guardian shall account to the husband of the ward in the same manner as if she had arrived at full age.' The Supreme Court of Indiana holds that the guardianship being thus terminated, an infant married to a man of full age can have no guardian. State v. Joest, 46 Ind. 235; Ex parte Post, 47 id. 142. The husband takes the place of the guardian, and the Revised Statutes of 1843, sect. 17, c. 28, art. 2, would seem to empower a married woman of any age to unite with him in making title. It has, however, been held that the section merely authorizes a minor wife to join in a conveyance which might be avoided by her within a reasonable time after attaining her majority. Scranton v. Stewart et al., supra.

2. The deed being only voidable, Mrs. Sims, if she desired to avoid it, was bound to do so, within a reasonable time after becoming of age; and a period of twenty-one years is not a reasonable time. Hartman v. Kendall, 4 id. 403; Law v. Long, 41 id. 599, citing numerous cases, especially Bool v. Mix, 17 Wend. (N. Y.) 119; Scranton v. Stewart et al., supra, and cases there cited. Some positive act of disaffirmance is required; silence is affirmance. See above cases, and also Doe v. Abernathy, 7 Blackf. (Ind.) 442; Babcock v. Bowman. 8 Ind. 110; Dearborn v. Eastman, 4 N. H. 441; Robbins v. Eaton, 10 id. 561; Emmons v. Murray, 16 id. 385; Wallace v. Lewis, 4 Harr. (Del.) 75; Hastings v. Dollarhide, 24 Cal. 195. These cases held that such act of disaffirmance must be done within a reasonable time. Irvine v. Irvine (9 Wall. 617) calls four years a long time. That period was held sufficient evidence of ratification in Wallace v. Lewis, supra; so was six years in New Hampshire, 10 N. H. 561; 16 N. H. 385; and nine years in New York, 11 Johns. (N. Y.) 539; Richardson v. Boright, 9 Vt. 368, 371; Kline v. Beebe, 6 Conn. 494; Wheaton v. East 5 Yerg. (Tenn.) 41. Hartman v. Kendall (4 Ind. 403) declares thirteen years to be an unreasonable delay. These decisions also declare that the question as to what constitutes reasonable time must be determined by the peculiar circumstances of each case.

In this connection we rely upon the statement of Mrs. Sims, subjoined to the deed. We never supposed that she could make her deed effective by merely averring capacity; but the deliberate averment of a fact known to her, but not to her grantee, must operate to shorten the period within which it would be reasonable to permit her to avoid her deed by proof of a different state of things from that so averred. The fact that after 1852 she might have brought suit without joining her husband is also an element to be considered. Even if not bound to sue while covert, she was bound to disaffirm. Disaffirmance is a preliminary act: a fact vital to be proved and to be seasonably performed. The time for its performance will not be extended by delaying the suit. Bool v. Mix, supra. As the consideration was obtained by her false pretences, it might well be held that she would be barred by an acquiescence extending throughout the time within which she would have been liable to indictment therefor. Neither in civil nor criminal procedure is it a conclusive presumption that a woman acts under the coercion of her husband. The facts in this case rebut that presumption.

The fact of coverture does not excuse an act of positive fraud, such as her signing the false statement appended to the deed. While the law of Indiana gives to married women rights superior to those which they enjoy in some of the other States, it does not release them from the obligations of good faith and common honesty. In Litchenberger v. Graham (50 Ind. 290), the silence of a woman was held to be a ratification of her husband's sale of her personal property. A fortiori, then, will active participation in his fraud greatly shorten the time for disaffirmance, if it does not estop her altogether from repudiating the contract. Gatling v. Rodman, 6 id. 289; Barnes v. McKay, 7 id. 301.

3. This is a bill in chancery, brought upon the assumption that the deed was void ab initio. Assuming that the title is and always has been in the complainant, it seeks merely to remove therefrom a cloud caused by an alleged fraudulent conspiracy against her, in which the deceased grantee was a participant. Such is the equity which she sets out to establish. It finds no support in the evidence nor warrant in the law as it is expounded and enforced in Indiana.

Since 1852, a married woman's real estate in Indiana has been her separate property.

Mrs. Sims was thereafter, if not before, empowered to file her bill in the Federal or the State court, and make her husband a defendant. This is in addition to and entirely distinct from the right to sue at law given by the State statute. It is incident to chancery jurisdiction, and her failure to resort to it in due time is such laches as will bar her recovery now.

4. Though the chancery power of the Federal courts cannot be conferred or restrained by State legislation, yet in exercising it this court will recognize the rules of property established by such legislation, and construe a contract accordingly. Fairfield v. County of Gallatin, 100 U.S. 47.

Under the statute of Indiana the deed in question was neither void nor absolutely and unconditionally voidable. It passed the present title upon delivery, and became unimpeachable, unless avoided within a reasonable time. Though Mrs. Sims's declaration could not operate to bar a seasonable action of ejectment, it may be held an estoppel in these proceedings. Bispham, Principles of Equity, 293; 2 Story, Eq. Jur., c. 44, especially sect. 1545, and cases there cited. and cases there cited. Mr. Edwin B. Smith in support of the decree below.

Mr. Arthur D. Rich, contra.

MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.