Opinion of the Court.

This case depends mainly upon the construction to be placed upon the second section of the latter act, which was in force when the deed of May 26, 1856, was executed. That section is as follows:

"When any feme covert, not residing in this state, being above the age of eighteen years, shall join with her husband in the execution of any deed, mortgage, conveyance, or other writing of, or relating to, any lands or real estate, situate within this state, she should thereby be barred of and from all estate, right, title, interest, and claims of dower therein, in like manner as if she was sole and of full age. And any such feme covert joining with her husband in the execution of a power of attorney or other writing, authorizing the sale, conveyance, or other disposition of lands or real estate as aforesaid, shall be bound and concluded by the same, in respect to the right, title, claim, or interest in such estate, as if she were sole and of full age as aforesaid; and the acknowledgment or proof of such deed, mortgage, conveyance, power of attorney, or other writing may be the same as if she were sole, and shall entitle such deed, mortgage, conveyance, power of attorney, or other writing to be recorded as is authorized by this act; and the provisions of this section shall apply to deeds, mortgages, conveyances, powers of attorney, and other writings heretofore, as well as those which may hereafter be executed." 2 Scates, Treat & Blackwell's Stat. Ill. 965; 1 Gross' Stat. Ill. c. 24, § 24; 1 Adams & Durham's Real Estate Stat. & Decisions of Ill. 175.

Did Christina Lynn, within the meaning of that statute, "join with her husband in the execution" of the deed of 1856? The plaintiff contends that she did not, because the name of the husband is not expressly designated in the body of the deed as a grantor. It is argued that as William Lynn, the husband, had during coverture a freehold interest jointly with his wife in her estate of inheritance, with absolute ownership of the rents and profits of the wife, the requirement in the act of 1847, that she should join him in the execution of any deed for real estate, was a recognition of his supremacy and right of control, and necessarily implied that he, as grantor, so

Opinion of the Court.

named in the granting or operating clauses, must pass whatever interest he had, and thereby, also, express his willingness that the wife should convey her title or estate. While this position is sustained by some adjudications, it is necessary to inquire as to the state of the local law; for the rights of the parties must be governed by the requirements of that law in respect to the mode in which real property situated within the limits of that state may be conveyed or transferred. United States v. Crosby, 7 Cranch, 115; Clark v. Graham, 6 Wheat. 577; McCormick v. Sullivant, 10 Wheat. 192, 202; Suydam v. Williamson, 24 How. 427, 433; Brine v. Ins. Co., 97 U. S. 627.

In Johnson v. Montgomery, 51 Ill. 185, the question was whether dower was barred by a deed executed in 1853, in Ohio, conveying lands in Illinois belonging to the husband, the wife signing the deed and duly acknowledging it before a proper officer. But the wife was not named in the body of the deed, nor was her right of dower referred to therein in any way. It is true, as suggested by counsel for the plaintiff in error, that an inchoate right of dower is not a present estate in lands, and that the court in that case expressly waived any decision of the question whether the deed then before it would have been good under the act of 1847, and placed its decision entirely upon the 21st section of the statute of conveyances of 1845. That section provides that it shall be lawful “for any married woman to release her right of dower of, in, and to any lands and tenements whereof her husband may be possessed or seized, by any legal or equitable title during her coverture, by joining such husband in the deed or conveyance for the conveying of such lands and tenements, and appearing and acknowledging the same, &c.,

which [certificate of privy examination] being recorded, together with the deed, duly executed and acknowledged by the husband according to law, shall be sufficient to discharge and bar the claim of such woman to dower in the lands and tenements conveyed by such deed or conveyance." 1 Adams & Durham, 133; Rev. Stat. Ill., 1845, 107. The court, after observing that the deed merely extinguished the wife's con

Opinion of the Court.

tingent right of dower, and did not pass any estate she had in the land, said: "This precise question has not hitherto been presented, but we entertain no doubt it has always been supposed by both the people and the profession in this state that a married woman, signing her husband's deed, and being properly examined before an officer, and causing his certificate of that fact to be placed upon the deed, would bar her dower in the premises conveyed, although her name nowhere appeared in the body of the deed. By signing the deed she 'joins' in it, and having done this, her dower is barred if she takes the other steps pointed out by the statute," p. 191. This decision bears somewhat on the question as to what the local statutes mean when they require the wife to join with the husband in a conveyance of real estate.

In Miller v. Shaw, 103 Ill. 277, 291, one of the questions was whether a certain conveyance by a married woman, living in Illinois with her husband, passed the title to her separate real property situated in that state, the husband not joining with her in the granting clause of the deed. The statute in force when the deed was made prescribed the mode in which the husband and wife, residing in Illinois, could convey the real estate of the wife. Act of 1845, § 17, p. 106; 1 Adams & Durham, 127, 128. It made it lawful for the husband and wife to "execute" any grant, lease, deed, or conveyance of such estate. The court said: "That which this statute requires to be done to enable the wife to convey her separate property is, that she and her husband shall execute the deed, and after that she shall appear before a proper officer and acknowledge the same in the mode pointed out in the statute; and such deed being acknowledged or proved according to law by the husband, it will be as effectual to pass the title to the wife's separate property as the deed of an unmarried woman would be to convey her property. All this was done in this case. Both Mrs. Sheldon and her husband executed the deed to Ward, and afterwards she appeared before a proper officer and acknowledged it in conformity with the statute; and the acknowledgment of her husband to the deed being according to law, that seems to be all the law requires to be done to

Opinion of the Court.

make the deed effectual to pass the title to the wife's separate estate."

The latest case to which our attention has been called is Yocum v. Lovell, 111 Ill. 212. By a statute of Illinois every householder is declared to be entitled "to an estate of homestead," to a specified amount, in the farm or lot of land, and buildings thereon, owned or rightly possessed, by lease or otherwise, and acquired by him or her as a residence; such homestead and all right and title therein being exempted from attachment, judgment, levy, execution, or sale for the payment of his debts or other purposes, and from the laws of conveyance, descent and devise, as provided in that statute. The exemption continues after the death of the householder for the benefit of the surviving husband or wife, so long as he or she occupies such homestead, and of the children until the youngest child become twenty-one years of age. The statute, also, provides, that "no release, waiver or conveyance of the estate so exempted shall be valid, unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance; or, if the exemption is continued to child or children, without the order of the court directing a release thereof." Rev. Stat. Ill., 1874, p. 497. In the case last cited, the question was whether a trust deed expressly relinquishing the homestead right, was effectual for that purpose, the name of the wife not appearing in the granting clause of the deed, though it was signed and duly acknowledged by herself and husband in conformity with the statute. The court held the deed to be sufficient to pass the interest of both husband and wife in the estate of the homestead-observing, that the statute did not require the name of the husband or wife to appear in the body of the deed. Referring to Miller v. Shaw, as presenting an analogous question, the court said: "In the case now being considered the wife joins with her husband in the release of homestead in precisely the same manner as the husband did with the wife in the case cited," p. 218.

Opinion of the Court.

While those cases do not cover the precise question under consideration, we are of opinion that under the principles announced in them, the deed of May 26, 1856, must be upheld as a valid transfer under the law of Illinois of the interest of Christina Lynn and her husband. If, as adjudged by the Supreme Court of the state, the wife, whose name did not appear in the operative clause of the husband's conveyance of his lands, is to be held as having joined him therein and surrendered her right of dower, by simply signing the deed and acknowledging it in conformity with the statute, and upon privy examination duly certified; if, under a statute making it lawful for husband and wife "to execute" a conveyance of her real estate, they will both be held to have executed a conveyance of her separate property where her name appears, but that of the husband does not appear, in the granting clause of the deed, but they both sign and acknowledge it in the mode required by law; and if the wife's "estate of homestead" can be conveyed by a deed, signed and duly acknowledged by herself and husband, her name, however, not appearing in the body of the deed; it would seem to follow that, within the meaning of the act of 1847, and according to the tendency of the decisions of the Supreme Court of the state, the wife joins with her husband in the execution of a conveyance of her estate of inheritance where her name alone appears in the granting clause, but the deed is signed by both herself and husband, is acknowledged by both, and is certified as required by law. Such conveyance, so signed, acknowledged, and certified, of the wife's land, seems to be as effectual, under the local law, to invest the grantee with the title and interest of both husband and wife as if his name had also appeared in the granting clause.

If, as suggested, the purpose of the act of 1847 in requiring the wife to join the husband in the execution of conveyances of her real estate was to protect her against strangers and secure his coöperation and counsel, that object was as fully accomplished by his signing and acknowledging the deed with her as it would have been by designating him in the body of the deed as co-grantor with the wife.