CHATTELS REAL. Possession (u). In so deciding, Sir John Leach said, "It is clear that the wife's contingent legal interest in a term may be sold by the husband; and there is no difference in Equity between the legal interests in, and the trusts of a term" (x).

Mortgage by the

chattels real.

If the husband mortgages the wife's chattel real, and if, husband of wife's by payment of the money on the day, the estate of the mortgagee ceases, it would seem that the wife's right by survivorship is not affected (y).

Effect of such

equity of redemption.

Such a mortgage may operate on the legal interest but mortgage on the leave the equity of redemption untouched, as in Pitt v. Pitt (z), where a feme sole, having mortgaged a leasehold for years, afterwards married. The mortgage was then transferred; the husband joining in the transfer, and covenanting to pay the money. During the coverture the husband, by gradual payments out of his own property, reduced the money due upon the mortgage. By his will he made a disposition of the mortgaged premises, and died in the lifetime of his wife. Upon a bill by the wife, who claimed to be entitled, by survivorship, to redeem the mortgage, the redemption was decreed to her, upon the terms that the husband's estate should stand in the place of the mortgagee for the sums paid by him out of his own property in reduction of the mortgage debt.

Case of Clarke v.
Burgh.

In a late case before Vice-Chancellor Bruce (a), it was held that the widow was similarly entitled to the equity of redemption; the transaction showing nothing which betokened an intention, on the husband's part, of defeating

(u) 2 Rus. & Myl. 360

(x) See also Major v. Lansley, 2 Rus. & Myl. 355. In Box v. Jackson, 1 Drur. 84, Lord Chancellor Sugden said, "He was happy that the doctrine of Purdew v. Jackson had not (in Donne v. Hart, and

Major and Lansley) been extended
to chattels real.". See Purdew v.
Jackson, Index of Cases, and infra,
of Chattels personal outstanding.
(y) 1 Rop. 184.

(2) Turn. and Rus. 180.

(a) Clarke v. Burgh, 2 Coll. 221.

that right. It appeared that he had executed mortgages CHATTELS REAL. of his wife's chattel leaseholds. This was considered as dealing with the property only to the extent of the legal interest; the equity of redemption remained unaffected. The following remarks of His Honour put the thing very clearly:

“That these alienations became absolute at law no one can doubt, as the money was not paid at the time appointed. They became absolute at law in the husband's lifetime. It is clear, however, that the assignment has never become absolute in Equity. The only intention on the part of the husband was to give the alienees security for the money advanced. It does not appear to me the wife's rights in Equity are more prejudiced than if a mere deposit of the deeds had been made by the husband. The mortgages are mere pledges or charges, and nothing more."

،،

The marginal note of the Reporter states that the decision in Clarke v. Burgh went upon the consideration that the transaction in question did not amount to a reduction of the chattels into the husband's possession." It does not appear, however, that the learned judge, in the observations which fell from him, proceeded on any such ground; but simply on the principle that where a husband's mortgage is made by an instrument which discloses no intention of doing more than simply to make a mortgage, the Court will regard the proceeding with an inclination to believe that nothing more was intended than that which was necessary to constitute a sufficient security for the money advanced. Then, as to a husband reducing chattels real of his wife, "into possession," what does Sir William Grant say, in Mitford v. Mitford? (b). After remarking that choses in action not reduced into possession by the husband survive to the

(b) 9 Ves. 87.

CHATTELS REAL. Wife (c), that great authority proceeds thus:-"But there are some legal interests which do not admit, or stand in need, of being reduced into possession, being in possession already, and not lying in action; as terms of years and other chattels real" (d).

Husband's agree

The husband's agreement to mortgage the wife's ment to mortgage. chattels real will be enforced against her only to the extent of the money due (e).

Forfeiture on outlawry or attainder.

Liability to

execution for debt.

If the husband be outlawed or attainted, his wife's chattel real shall be forfeited to the Crown (f), and it is liable to execution for his debts (g).

REAL ESTATE.

SECTION III.

REAL ESTATE.

Husband's real estate continues his own.

SUCH real estate as belonged to the husband before the marriage continues to belong to him exclusively after the marriage.

(c) See infra, of "The wife's chattels personal or choses in action," and Purdew v. Jackson, Index of Cases.

(d) See Box v. Jackson, 1 Drur. 84, where Lord Chancellor Sugden says the doctrine of Purdew v. Jack

son has not been extended to chattels real.

(e) Bates v. Dandy, 2 Atk. 207. (f) Plowd. 263; 2 Black. 434. (g) Co. Litt. 351; 2 Black. 434.

His wife's placed under his do

coverture.

Such real estate, on the other hand, as belonged to the REAL ESTATE. wife before the marriage, or may come to her during the marriage, is placed by the marriage under the dominion minion for the of the husband; a dominion, however, limited by and commensurate with the coverture. The law says, that by the marriage the husband acquires, and during the marriage enjoys, a freehold interest in his wife's real estate for their joint lives; both being seised together in her right by entireties (h); the effect of which is to put the ownership for the coverture entirely in the husband's power. Hence he can alienate this ownership at pleasure; and his conveyance will pass the freehold without the wife's co-operation.

So likewise he may of course charge his wife's estate for their joint lives; the charge, however, of whatever kind, ceasing with the marriage.

fee.

But the ultimate property, that is to say, the inherit- But not for the ance or fee of the estate, is not in the husband, whose marital right is bounded by the coverture. Where, then, is the ultimate property or inheritance or fee of the wife's estate while the marriage lasts? It remains in the wife herself, subject to the husband's rights, and can be departed with by the joint act only of both the married

(h) Litt. s. 291; 1 Inst. 187 b; Tit. 18, c. 1, s. 35; Owen v. Morgan, 3 Rep. 5; Robinson v. Cumming, Forrest, 167, 3rd edit. n. b., where the report of Lord Talbot's observations is corrected on the authority of Mr. Booth, which correction is confirmed by Mr. Butler. In Piggot's Treatise of Com. Rec., p. 72, it is stated that a husband seised jointly with his wife, whether by moieties or entireties, or seised only in right of his wife, may create an estate of freehold during the coverture, and

thereby make a good tenant to the
precipe. Of this learning, Black-
stone, in his popular way, gives the
practical result in his Commentaries,
vol. 2, p. 433, where he holds, that
in the wife's real estate the husband
enjoys only a title to the rents and
profits during the coverture; for the
real estate, depending upon feudal
principles, remains entire to the
wife after the death of her husband,
or to her heirs if she dies before
him.

And previous excertain that the voluntary, of

amination to as

act on her part

is

which, however, she cannot dispose without her husband's con

currence.

REAL ESTATE. parties; for the wife is by the disabilities of coverture precluded from disposing of it without her husband's concurrence. And, in order to guard her against the consequences of an undue exercise of marital authority, the law will not suffer her to part with her estate till it is previously ascertained that she performs the act voluntarily. This matter now stands upon the provisions of the Statute for the abolition of Fines and Recoveries (i), and of the rules and ordinances made by the court of Common Pleas in pursuance of that enactment (k).

Provisions for these purposes the Fines and Recoveries Act.

of

Now by the 77th section of the act, it is provided that after the 31st December, 1833,

It shall be lawful for every married woman in every case, except that of being tenant in tail, for which provision is already made by this act (1), by deed to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure, or in any such money as aforesaid, and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any lands of any tenure or any such money as aforesaid, or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole; save and except that no such disposition, release, surrender, or extinguishment shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed: Provided always, that this act shall not extend to lands held by copy of court

(i) 3 & 4 Will. 4, c. 74.

(k) See Appendix, No. 1, setting out the orders and regulations of the court of Common Pleas, and the decisions thereon.

(7) By the 40th section of the act, it is provided that "if the tenant in tail making the disposition shall be a married woman, the concurrence of

her husband shall be necessary to give effect to the same, and any deed which may be executed by her for effecting the disposition shall be acknowledged by her as hereinafter directed." See the other provisions of the act applicable to dispositions by tenants in tail.