US SUPREME COURT DECISIONS

1. An infant feme covert to whom lands in Indiana were conveyed executed with her husband, May 20, 1847, a deed in fee therefor, for a valuable consideration paid by the grantee to him. She was, on her petition, divorced from him, Feb. 14, 1870. Within less than two months thereafter, she gave due notice of her disaffirmance of the deed and demanded possession of the lands, which was refused. She thereupon brought suit. Held that as she did nothing during her coverture to confirm the deed, her notice and suit avoided it.

2. An estoppel in pais not being applicable to an infant, she was not estopped from alleging her infancy by any declaration which, at the time of executing the deed, she made in regard to her age.

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. chanrobles.com-redchanrobles.com-red

Page 102 U. S. 301

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 above-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 aforesaid.

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:

"SEC. 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. "

Page 102 U. S. 302

"SEC. 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."

"SEC. 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."

"SEC. 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."

"SEC. 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. "

Page 102 U. S. 306