Excerpt from A Treatise on the Law of Deeds, Vol. 2 of 3: Their Form, Requisites, Execution, Acknowledgment, Registration, Construction and Effect; Covering the Alienation of Title to Real Property by Voluntary Transfer; Together With Chapters on Tax Deeds and Sheriff's Deeds

In Mason v. Brock, supra, the court say: A married woman can be divested only of her real estate in the mode prescribed by statute. In Martin v. Dwelly, 6 Wend. 9, 21 Am. Dec. 245, Mr. J ustice Sutherland says: By the common law a feme covert could not, by uniting With her husband in any deed or conveyance, bar herself or her heirs of any es tate of which she was seised in her own right. Or of her right of dower in the real estate of her husband. This disability is supposed to be founded on the principle that the separate legal existence of the wife is suspended during the marriage, and is strengthened by the considera tion that, from the nature of the connection, there is danger that the influence of the husband may be improperly exerted, for the purpose of forcing the Wife to part with her rights in his favor. The law, therefore, considers any such deed or conveyance as the act of the husband only, although the wife may have united in it, and restrained its Operation to the husband's interest in the premises, and gives to it the same effect as though he alone had executed the conveyance. The only mode in which a feme covert could, at common law, convey her real estate was by unit ing with her husband in levying a fine. This is a solemn proceeding of record in the face of the court, and the judges are supposed to watch over and protect the rights of the wife, and to ascertain by a private ex amination that her participation in the act is voluntary and uncon strained. This is the principle upon Which the efficacy of a fine is put by most of the authorities; 3 Cru. Dig. 153, tit. 35, c. 10; 2 Inst. 510 1 Vent. 121 a. But whatever may be the foundation of the doctrine, it is now fully established. Our statute declares that no estate of afema covert residing in this State shall pass by her deed without a previous acknowledgment made by her before a proper officer, apart from her husband, that she executed such deed freely, without fear or compulsion of her husband: 1 Rev. Laws, 369. This provision, it will be observed, is an enlargement, and not a restraint, of the common-law powers of a feme covert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowl edged, the same power and effect as a fine; but, if not acknowledged according to the directions of the statute, it declares that no estate shall pass by it. It leaves it as it would have stood at the common law, if the statute had never been passed, absolutely void and inoperative. But see Hawes v. Mann, 8 Rise. 21.

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