Douglas v. Fulda , 50 Cal. 77 ( 1875 )

By the Court, Niles, J.:

The property in controversy was claimed to be the separate property of Elizabeth Douglas, a married woman. The lease offered in evidence and excluded by the court, purports to be the deed of Elizabeth Douglas alone, and is executed in her name by Calderwood, her attorney in fact. The power of attorney under which Calderwood acted was upon its face a joint power from W. J. Douglas and Elizabeth Douglas, his wife. The questions presented are, first, was the power effectual to authorize Calderwood to deal with the separate estate of the wife ? and, second, was the power, if sufficient, properly executed by him ?

1. The power of attorney was sufficient. In Castro v. Tennent (44 Cal. 253), a similar question arose upon the construction of a deed executed by the husband and wife jointly, and purporting to convey their joint interest in the land. It was contended that the separate estate or interest of the wife did not pass by the conveyance. But this Court said that this construction was hypercritical and too narrow and technical, and held that the separate estate of the wife passed by the deed. The question now presented is substantially the same. It was undoubtedly the intention of the parties to confer upon Calderwood the power to deal with the separate property of Elizabeth Douglas, and that power was conferred by the instrument, as we construe it.

2. Was the power properly executed ? There is no doubt that prior to April 13, 1863, the signature of the husband was essential to the validity of any conveyance of the separate estate of the wife. Upon that day an act was passed by the Legislature, the first section of which authorized a married woman, in conjunction with her husband, to make and execute powers of attorney for the sale, conveyance, or incumbrance of her real or personal estate. (Stat. 1863, 165.) The second section of the act is as follows: “Any conveyance executed under' and by virtue of such power of attorney shall be executed, acknowledged and certified in the same manner as if the persons making such power of attorney were unmarried.”

The lease in this case was executed precisely as it should have been executed if Elizabeth Douglas; the grantor of the power and the owner of the property, had been an unmarried woman. It was her estate only that was to be affected by the lease. The act defining the rights of husband and wife (Hittell Dig., Art. 3568), requires the signature of the husband to a conveyance executed by the wife in person, not for the purpose of passing any title from him, but as a precaution against imposition, or for similar reasons of policy. (Ingoldsby v. Juan, 12 Cal. 576.)

But the act of 1863, above cited, has furnished a different rule for the execution of a conveyance by an attorney under a power from the wife, executed in accordance with that statute. It is to be executed as if the grantors of the power were unmarried persons; that is, in the name of the wife alone, as in this case. The Legislature may have considered that the requirement of a formal signature of the power of attorney by the husband—he thereby exercising his discretion in the selection of an agent for the wife—afforded to her a sufficient protection against imposition.

We think the lease was valid and properly executed, and that it should have been received in evidence.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Chief Justice Wallace did not express an opinion.