of unsound mind, and whether he shall have been found such by CHAPTER XX. inquisition or not, or shall from any other cause be incapable of band's conexecuting a deed, or of making a surrender of lands held by copy currence. of court roll, or if his residence shall not be known, or he shall be in prison, or shall be living apart from his wife, either by mutual consent or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever, it shall be lawful for the Court of Common Pleas at Westminster, by an order to be made in a summary way upon the application of the wife, and upon such evidence as to the said Court shall seem meet, to dispense with the concurrence of the husband in any case in which his concurrence is required by this Act or otherwise; and all acts, deeds or surrenders to be done, executed or made by the wife in pursuance of such order in regard to lands of any tenure, or in regard to money subject to be invested in the purchase of lands, shall be done, executed or made by her in the same manner as if she were a feme sole, and when done, executed or made by her shall (but without prejudice to the rights of the husband as then existing independently of this Act) be as good and valid as they would have been if the husband had concurred." The jurisdiction of the Court of Common Pleas under this Jurisdiction of the High section has been transferred to the High Court of Justice (y), Court. and applications for a dispensation should now be made in the Queen's Bench Division (); 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 (a). 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 (b). A dispensation may be granted so as to enable a married woman to dispose of her property by way of mortgage (c). a Effect of with husdispensing band's concurrence. Dispensation for purposes of mortgage. Dispensation husband's lunacy. Where a dispensation is applied for on the ground of husband's unsoundness of mind, it must be shown that such on ground of incapacity to concur existed at the time of the application (d). The unsoundness of mind must be clearly proved (e), and an affidavit of the fact should be made by a medical man (ƒ). An order has been made under sect. 91 to enable a married Dispensation woman to convey the legal estate in her separate property where of infant the husband was an infant (g). (y) 36 & 37 Vict. c. 66, ss. 16, 34. (2) Re Caine, 10 Q. B. D. 284. (a) Exp. Thompson, W. N. (1884) 28; Re Giles, W. N. (1894) 73. (b) Goodchild v. Dougal, 3 Ch. D. 650. (c) Exp. Thompson, supra. (d) Re Turner, 3 C. B. 166; Re Murphy, 4 Man. & Gr. 635. (e) Re Murphy, supra. (f) Re Reeves, 24 W. R. 848. with consent husband. CHAPTER XX. in cases of divorce and judicial separation. The word "divorce" in this section refers to the old divorce Dispensation a menså et thoro in the Ecclesiastical Court. Under the Divorce Act, 1857 (h), 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 (i). 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 (k). 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 to copyholds. Orders under this section have frequently been made in cases where the husband has absconded, and has not since been heard of (1); but such orders have been refused where it was no sufficient ground for believing that it was not the husband's intention to return (m), and where the husband was in correspondence with his wife (n). When the parties are living apart by mutual consent, and the husband requires a money payment as the price of his concurrence, the Court will make a dispensing order (o), but the husband must have been applied to (p), and there must be an affidavit by the wife herself (g); and it is not sufficient to state that the wife has left the husband on account of his violence, and that he has refused to concur (r). 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 (s). The proviso at the end of sect. 77 of the Fines and Recoveries 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 (f). As will be seen later, a wife can by deed, without either acknowledgment or her husband's concurrence, bind in equity CHAPTER XX. real estate limited to her separate use (u). 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 (x). husband to iii. Mortgages of Chattels Real of Married Women.-A Right of husband is possessed of his wife's chattels real in her right, wife's chattels and is entitled to the rents and profits thereof during the cover- real. ture, 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 (y). 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 (z). 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 (a), provided the interest is such as may possibly vest in the wife in possession during the coverture, but not otherwise (b). 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 (c). Where, however, the legal estate of chattels real is in a trustee Wife's equity for the wife, the mortgage, or other disposition thereof, by the of chattels (u) Post, p. 328. (x) Post, pp. 335 et seq. (y) Co. Lit. 46 b, 351 a; Bac. Abr. tit. Baron and Feme (C) 2. (2) Wms. on Exors., 9th ed., p. 605, n. (a) Donne v. Hart, 2 R. & My. 360; Purdew v. Jackson, 1 Russ. 1; VOL. I.-R. Hill v. Edmonds, 5 De G. & S. 603; (b) Duberly v. Day, 16 Beav. 33, (c) Re Bellamy, 25 Ch. D. 620. Y to settlement real. CHAPTER XX. husband will be subject to the equity to a settlement of the Wife's equity of redemp tion. Voluntary leaseholds by husband overrides wife (d). The concurrence of a wife in a mortgage by her husband of such leaseholds will not bar her equity to a settlement (d). 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 (e). So complete, however, is the effect of an absolute disposition conveyance of 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 (ƒ), though made without valuable consideration, 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 (g). wife sur viving. Right of husband to wife's choses in action. 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 (h), 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 (i); nor will the consent of the wife be taken in Court, if the chose in action be not an immediate present right (k); 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 (d) Hansen v. Keating, 4 Ha. 1. See Sturgis v. Champneys, 5 My. & Cr. 102; and see post, pp. 326, 327. (e) Hill v. Edmonds, 5 De G. & S. 603. (f) 56 & 57 Vict. c. 21. (g) Doe d. Richards v. Lewis, 11 C. B. 1035. (h) 20 & 21 Vict. c. 57. (i) Honner v. Morton, 3 Russ. 65; Hornsby v. Lee, 2 Madd. 16; Moreau 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. (k) Story v. Tonge, 7 Beav. 91; Whittle v. Henning, 18 L. J. Ch. 51; 12 Jur. 1079; 2 Ph. 731. And see Williams v. Mayne, Ir. R. 1 Eq. 519, disapproving of Wall v. Wall, 15 Sim. 513. duration of the coverture (1). And if the wife is entitled to stock in possession under a will, and the executors, by direction of the husband, transfer it to trustees to the separate use of the wife, and the husband afterwards becomes bankrupt, such transfer will not, in favour of the assignees, be held a reduction into possession by the husband (m). The rule has been held not to apply to a fund belonging to a married woman standing in the name of the Accountant-General of the Court of Chancery, which, it has been said, may be pledged by the husband alone ("). But this, as observed by Mr. Spence, is not consistent with later authorities (o). The wife is entitled by survivorship against the mortgagee, although the agreement for a loan was made before marriage, and although the mortgagee has obtained an order for payment out of the funds in Court between the order nisi and order absolute for dissolution of the marriage (p). CHAPTER XX. to settlement A mortgage by a husband of a chose in action belonging to Wife's equity his wife is not only liable to be defeated in the event of her in choses in survivorship, but is also subject to her equity to a settle- action. ment (7). reversionary By the statute, commonly called "Malins' Act," power has Future and been given to married women and their husbands to deal with interest in their future and reversionary interests in personal estate. By personalty. that statute () it is enacted that— women may dispose of After the 31st of December, 1857, it shall be lawful for every Married married woman by deed to dispose of every future or reversionary interest, whether vested or contingent, of such married woman, or reversionary her husband in her right, in any personal estate whatsoever, to interests in which she shall be entitled under any instrument made after the personal 31st of December, 1857 (except such a settlement as thereafter estate, and release powers mentioned), and also to release or extinguish any power which may be vested in, or limited or reserved to, her in regard to any such estate, and personal estate, as fully and effectually as she could do as if she also their (1) Stiffe v. Everitt, 1 My. & Cr. 37. And see Whitmarsh v. Robertson, 1 Y. & C. C. C. 715. 53. (m) Ryland v. Smith, 1 My. & Cr. As to what amounts to a reduction into possession of a chose in action, see Blunt v. Butland, 5 Ves. 515; Nash v. Nash, 2 Madd. 133; Gaters v. Madeley, 6 M. & W. 423; Hart v. Stevens, 6 Q. B. 937; Harwood v. Fisher, 1 Y. & C. Ex. 110; Burnham v. Bennett, 2 Coll. 254; Rees v. Keith, 11 Sim. 388, though quære that case; Richards v. Richards, 2 B. & Ad. 447; Day v. Pargrave, 3 M. & S. 395; (n) Sansum v. Dewar, 3 Russ. 91. (r) 20 & 21 Vict. c. 57, s. 1. over such |