Chap. XX. § 2 (ii). Interest in mortgage debt. Concurrence of bankrupt husband. Act does not to bind herself moneys. Bar of wife's equity to settlement in lands. Right of wife to redeem. married women entitled in remainder under the settlement could, by deed acknowledged with the concurrence of their husbands, join in disposing of the house so as to bind their interests therein (k). The power of disposition will include a married woman's interest in a mortgage debt to which she and her husband are entitled (1), but not where the wife is interested in such a debt as a cestui que trust, the legal estate in the mortgaged lands being vested in trustees (m). A husband is not precluded by bankruptcy from concurring with his wife, under sect. 77 of the Act, in a disposition of her interest in real estate (n). The effect of the Act is only to enable a married woman by deed acknowledged, with her husband's concurrence, to bind her non-separate real estate, but it does not enable her to enter into a personal covenant for payment of principal or interest (o). This disability has, however, been removed partially as regards mortgages made since 1882, and entirely as regards mortgages made on or after the 5th of December, 1893 (p).. A disposition by a married woman, with the concurrence of her husband, under this Act bars her equity to a settlement in lands of which she is seised for an estate of inheritance (9). Where a husband and wife join in a mortgage of the wife's real estate, the wife is entitled to redeem on paying off the mortgage, whether the equity of redemption is expressly reserved to her or not (r). And this is so even where by a prior deed the wife has conveyed the property to the husband absolutely, if by extrinsic evidence it appears that she did so merely to enable him to mortgage it (s). By sect. 79 of the Act it was enacted that deeds executed by married women should be acknowledged before a judge or before two commissioners. The Conveyancing Act, 1882 (t), s. 7, substitutes one (k) Re Durrant and Stonor, 18 Ch. D. (1) Williams v. Cooke, 4 Giff. 343. (n) Re Jakeman's Trusts, 23 Ch. D. (0) Crofts v. Middleton, 8 De G. M. & G. 192; Pride v. Bubb, L. R. 7 Ch. 64. (p) See post, p. 355. (9) Life Assoc. of Scotland v. Siddal, 3 De G. F. & J. 271; Newenham v. Pemberton, 17 L. J. Ch. 99. (r) Stansfield v. Hallam, 5 Jur. N. S. 1334; Gleaves v. Paine, 1 De G. J. & S. 87; Re Betton's Trusts, L. R. 12 Eq. 553. (s) Re Marlborough, Davis v. Whitehead, (1894) 2 Ch. 133. (t) 45 & 46 Vict. c. 39. perpetual commissioner, or one special commissioner, in place Chap. XX. of two. § 2 (ii). By sect. 84 of the Fines and Recoveries Act, where a married Memorandum woman acknowledges a deed, the person taking the acknow- of acknowledgment. ledgment is to sign a memorandum according to a form given in the section, but for which a different form has now been substituted by the "Rules under the Act for the Abolition of Fines and Recoveries, and sect. 7 of the Conveyancing Act, 1882," issued in December, 1882 (u). And by sect. 7 (2) of the Act of 1882 it is enacted that "Where the memorandum of acknowledgment by a married woman of a deed purports to be signed by a person authorized to take the acknowledgment, the deed shall, as regards the execution thereof by the married woman, take effect at the time of acknowledgment, and shall be conclusively taken to have been duly acknowledged." By sect. 91 of the Fines and Recoveries Act (3 & 4 Will. IV. c. 74), it is enacted that it shall be lawful for the Court in certain cases to dispense with the concurrence of the husband. The jurisdiction of the Court of Common Pleas under this Jurisdiction of the High section has been transferred to the High Court of Justice (x), Court. and applications for a dispensation should now be made in the King's Bench Division (y); but a judge of the Chancery Division has jurisdiction to make a dispensing order, where other relief, properly obtainable in that Division, is sought in the same application (≈). Where the husband's concurrence is dispensed with, the wife is for all purposes of disposition a feme sole, and the deed need not be acknowledged by her (a). A dispensation may be granted so as to enable a married woman to dispose of her property by way of mortgage (b). Where a dispensation is applied for on the ground of a husband's unsoundness of mind, it must be shown that such incapacity to concur existed at the time of the application (c). The unsoundness of mind must be clearly proved (d), and an affidavit of the fact should be made by a medical man (e). (u) See Rule 3. (x) 36 & 37 Vict. c. 66, ss. 16, 34. (y) Re Caine, 10 Q. B. D. 284. (z) Exp. Thompson, W. N. (1884) 28; Re Giles, W. N. (1894) 73; 70 L. T. 757. (a) Goodchild v. Dougal, 3 Ch. D. 650. (b) Exp. Thompson, supra. Effect of dispensing with husband's con currence. Dispensation for purposes of mortgage. Dispensation on ground of husband's lunacy. Chap. XX. § 2 (ii). Dispensation with consent of infant husband. in cases of divorce and judicial separation. An order has been made under sect. 91 to enable a married woman to convey the legal estate in her separate property where the husband was an infant (f). The word "divorce " in this section refers to the old divorce a mensâ et thoro in the Ecclesiastical Court. Under the Divorce Dispensation Act, 1857 (g), a decree absolute for the dissolution of the marriage has the same effect as if the husband had died at the date of the decree nisi (h). Property coming to a wife after a sentence of judicial separation, or (where she has a protection order) after the date of desertion, can be disposed of by her as a feme sole (i). But a wife judicially separated, or who has obtained a protection order, must apply under this section in order to enable her to dispose of property acquired before the date of such sentence or desertion. Desertion by husband. Separation by mutual consent. Exception as Orders under this section have frequently been made in cases When the parties are living apart by mutual consent, and the An order under this section does not deprive the husband of his common law rights to the rents and profits of the land during the coverture (r). The proviso at the end of sect. 77 of the Fines and Recoveries to copyholds. Act renders the formalities prescribed by the Act unnecessary in the case of copyholds where, prior to the Act, the wife, with her husband's concurrence, could have effectually passed the lands by surrender (s). (f) Re Haigh, 2 C. B. N. S. 192. (h) Prole v. Soady, L. R. 3 Ch. 220. (i) 20 & 21 Vict. c. 85, ss. 25, 26. (1) Exp. Gilmore, 3 C. B. 967; Exp. As will be seen later, a wife can by deed, without either acknowledgment or her husband's concurrence, bind in equity real estate limited to her separate use (t). Acknowledgment of mortgage and other deeds is abolished as to women married after the 1st January, 1883; and in the case of all women married before that date, as to all property the title to which accrues after that date (u).. Chap. XX. § 2 (ii). husband to iii.-Mortgages of Chattels Real of Married Women.-In Right of cases not falling within the Married Women's Property Act, wife's chattels 1882, a husband is possessed of his wife's chattels real in her real. right, and is entitled to the rents and profits thereof during the coverture, and he can dispose of such property by deed or otherwise. He can, accordingly, without her concurrence, during the coverture, mortgage or charge inter vivos at his pleasure the wife's chattels real, whether her interest be legal or equitable, and so as to bind her absolutely. But they are not the absolute property of the husband; he cannot dispose of them by his will; and if he dies during the coverture, having made no disposition inter vivos, they will revert to the wife surviving (x). On the death of the wife in the husband's lifetime, he will become entitled to her chattels real, whether settled to her separate use or not (y). The husband's power of disposition during the coverture Extent of the extends to all his wife's chattels real, whether the interest right. therein be in possession or in reversion, vested or contingent, and the wife surviving will be bound by such disposition, though the husband dies before the reversion falls into possession or the contingency is determined (s), provided the interest is such as may possibly vest in the wife in possession during the coverture, but not otherwise (a). Where a wife's interest in a term of years is reversionary at the time of her death, it is not necessary for her surviving husband to take out letters of administration to her in order to complete his title to the property (b). viso, Green v. Paterson, 32 Ch. D. 95, C. A., and Carter v. Carter, (1896) 1 Ch. 62 (cases of settlements). (t) Post, p. 337. (u) Post, pp. 344 et seq. (x) Co. Lit. 46 b, 351 a; Bac. Abr. tit. Baron and Feme (C) 2. (y) Wms. on Exors., 9th ed., p. .605, n. (z) Purdew v. Jackson, 1 Russ. 1; Hill v. Edmonds, 5 De G. & S. 603; Doe v. Lewis, 11 C. B. 1035. (a) Duberly v. Day, 16 Beav. 33, appealed to D. P. but appeal not prosecuted, 5 H. L. C. 388. (b) Re Bellamy, 25 Ch. D. 620. Chap. XX. Where, however, the legal estate of chattels real is in a trustee § 2 (iii). for the wife, the mortgage, or other disposition thereof, by the Wife's equity husband will be subject to the equity to a settlement of the to settlement wife (c). of chattels real. Wife's equity of redemption. Voluntary The concurrence of a wife in a mortgage by her husband of such leaseholds will not bar her equity to a settlement (c). It is a consequence of the right and interest which a wife retains in her chattels real, notwithstanding coverture, that a partial disposition by the husband only operates pro tanto to defeat such right and interest; and, accordingly, a mortgage by a husband and wife of the wife's leaseholds was held not to bar her right to redeem during the husband's lifetime (d). So complete, however, is the effect of an absolute disposition by a husband of his wife's legal term in diverting the wife's rights, that such a disposition, even if made before the 29th of mortgage by June, 1893 (e), though made without valuable consideration, overrides wife sur viving. Right of husband to wife's choses in action. would not be revoked, by virtue of the statute 27 Eliz. c. 4, by a subsequent mortgage made by the wife after the death of the husband, but the mortgage would confer no estate to the mortgagee (ƒ). iv.-Mortgages of Choses in Action and Reversionary Interests of Married Women.- Much discussion formerly arose on the subject of assignments by husband and wife of choses in action belonging to the wife. The law was settled before Malins' Act (g), and in all cases not within that Act is still settled, that an assignment by the husband, or by him and his wife jointly, of choses in action of the latter, in possession, expectancy, or contingency, will not be binding on the wife, in case the husband die in her lifetime, and before the fund has been actually reduced into possession (); nor will the consent of the wife be taken in Court, if the chose in action be not an immediate present right (i); and husband and wife cannot effectually dispose of a life interest of the wife in a fund not settled to her separate use, beyond the v. Polley, 1 De G. & S. 143; Purdew v. Jackson, 1 Russ. 1; Ellison v. Elwin, 13 Sim. 309; Harrison v. Andrews, 13 Sim. 595; Ashby v. Ashby, 1 Coll. 553; Wilkinson v. Charlesworth, 10 Beav. 324; Michelmore v. Mudge, 2 Giff. 183. (i) Story v. Tonge, 7 Beav. 91; Whittle v. Henning, 18 L. J. Ch. 51; 2 Ph. 731. |