Compton against Collinson
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1790 |
| Date | 12 February 1790 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 197
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
1H.BL.J38. COMPTON V. COLLINSON ' 197 compton against collinson (a). Friday, Feb. 12th, 1790. Where a married woman lives apart from her husband under articles of separation, by which he covenants that she shall enjoy to her own use all such estates, both real and personal, as shall come to her during the coverture, and that he will join in the necessary conveyances to limit them to such uses as she shall appoint; and copyhold lands having afterwards descended to her, the husband again covenants in the same manner as before, and that he will join in surrendering such estates to auch uses as she shall appoint; the wife may surrender the copyhold lands without the husband joining, arid without a special custom for that purpose. This ease which was sent out of Chancery for the opinion of this Court, stated, that In 1752, Michael Collinson married Jane Banastre, and had issue by her the defendant Charles Steynsham Collinson, and Mary Collinson. July 15, 1762. By articles of separation between the said Michael Collinsou of the one part, Jane Collinson and Charles Banastre her father of the second part, and certain other parsons of the 3d, 4th, and 5th parts, after stating the agreement to separate ; the said Michael Collinson covenanted, that the said Jane Collinson should from thenceforth enjoy to her own use all such estates, both real and personal, as should come to her during her coverture, or that he should become entitled unto, in her right; and moreover that he would join with the said Jane, in levying a fine, or suffering a recovery thereof, and limiting the same to such uses as she should appoint. And the said Charles Banastre thereby covenanted to indemnify the said Michael Collinaon the husband against all damages and expences, which he might sustain on account of his wife's debts contracted since the 12th day of June 1760, or which should be thereafter contracted. August 17, 1770, the said Charles Banastre died; upon whose death certain copyhold premises, held of the two manors of Ryegate and Banstead, descended to the said Jane Collinson, as the customary heir of her father, the said Charles Banastre. By indenture of three parts, made December 12, 1770, between the said Jane Collinson of the first part, the said Michael Collinson of the second part, and the trustees of the third part, after reciting, among other things the articles of separation of the 15th of July 1762, tha said Michael Collinson covenanted that the said Jane his wife should enjoy to her own use all the real and personal estate of her father, as well as any other real estate that might in any manner come to her during the coverture, and that he would join in levying a fine, suffering a recovery, or making a surrender of such estates, and in limiting the same to such uses as she should appoint. [335] May 16, 1771. The said Jane Collinson was admitted to the copyholds held of the manor of Banstead, and on the same day she surrendered them to the use of her will. June 3, 1771. The said Jane was admitted to the copyholds, held of the manor of Eyegate, and on the same day she surrendered them to the use of her will. July 5, 1772, by a certain paper writing of that date, purporting to be the will of the said Jane Collinaon, she devised the copyholds held of both manors, subject to debts, legacies, and funeral expenses, to John Willis and his heirs, and appointed him executor. July 15, 1772, the said Jane Collinson made an absolute surrender of the copyholds held of the manor of Banstead to the said John Willis and his heirs; and the same day the said John Willis was admitted thereto, and at the same Court the said John Willis surrendered the said copyholds to the use of his will. July, 15, 1772. The said Jane Collinson made an absolute surrender of the copyholds held of the manor of Ryegate to the said John Willis and his heirs, and the same day the said Johu Willis was admitted thereto, and at the same Court the said John Willis surrendered the said copyholds to the use of his will. Michael Collinson the husband of Jane did not join or concur in any of the aforesaid surrenders made by Jane his wife. July 26, 1772. The said Jane Collinson by another writing of that date, purporting to be a. codicil to her will, after reciting the said surrenders, and that the same were made in trust for securing the payment to the said John Willis of such sums as he should during her life advance for her use, declared, in case the copyholds (a) Vid. 2 Brown Rep. Cha. 377. 198 COMPTON V. COLLINSON 1 H. BL. JM. should not be sold at her death, for the purpose of paying her debts, then that the said John Wfllia should stand seised thereof, charged with all sums which should be dut from her at her death, or which he should pay by her order, and the fines and fees of admission ; in trust for himself, his heirs, &e. September 1, 1772. The said Jane Collinson died, leaving the said Michael Collinson : her husband surviving her, and Charles Steynsham Collinson her heir at law, and heir according to the custom of the said manors of Banstead and Ryegate. The question was, whether John Willis took any, and what estate under the surrender!, will and codicil of the said Jane Collinson, or under either, and which of them 1 This was argued in Easter term last, by Lawrence, Serjt., for the plaintiff, and Bond, Serjt., for the defendant, and in Michaelmas term, by Le Blanc, Serjt., for the plaintiff, and Adair, Serjt., for the defendant. On the part of the plaintiff, [336] it wai contended that John Willis took an estate in fee in the premises, according to the customs of the respective manors, under the different surrenders made by Jane CallinsoD, after her separation from her husband, a separate maintenance allotted to her, and alter he bad been indemnified against any debts she might contract, and had covenanted that she should have to her own use all the estates both real and personal of her father, or that might descend to her during the coverture, and that he would join in levying a tine, suffering a recovery, or making a surrender of such estates, and limiting them to such uses as she should appoint. The difficulty arises from the husband not having joined in the surrenders. But this, may be obviated by considering the reason why in general it is necessary for a husband to join in the surrender of copyholds belonging to the wife. The reason is, because he has an interest in the lands during the coverture, which is not to be given up without his testifying his consent; insomuch, that a custom in a particular manor foria wife to surrender her copyholds without the concurrence of her husband, has been bolden to be bad. 2 Wils. 1. But where the husband, as in the present case, agrees that the wife shall dispose of her property, he renounces his interest, and the difficulty is at an end. Cessante ratione, cessat at ipsa lex. Besides as by the deed oi separation, the husband was indemnified for his wife's debts, there was a valuable consideration, and a Court of Equity would decree a specific performance of an agreement for a valuable consideration. By the common law, the wife loses all power of separately disposing of her property; the husband has an absolute right to all her personalty, and a qualified one, during her life, to her real estates. If she could either sue or be sued, she might be taken in execution, and the husband deprived of his right over her person. The incapacity of an infant arises from a want of skill and judgment, but that of a feme covert from want of property, and because she is supposed to act under the control of her husband. There are many cases indeed, where the surrender of the wife's copyhold made by her and her husband is holden to be good by the customs of particular manors; but in those cases, both the husband is a; party on account of his interest, and she examined separately as to her consent. The authorities of Dyer, 363 b. Moore, 123. Cro. Eliz. 717. Litt. Rep. 274, and 2 Wils. 1 shew, that a custom for a [337] feme covert to surrender, and devise with the consent of her husband, is good. The criteria (by which a custom of this sort has been holden reasonable or not) to be collected from these cases, are, the husband's joining to shew his consent, and the separate examination of the wife to prove that she does not act under the husband's control. In Coke's Entries, 576, such a surrender is pleaded, without a special custom to warrant it, and no objection made. But aa the principal thing to be attended to is the husband's consent in these circumstances, in Older that bis interest may be preserved, so there are other cases, where the husband having no particular interest, the wife may convey without his assent. As in Darnel v. IMley, Sir William Jones, 137, where feoffrnent and livery were made by a married woman of an estate given her by a former huaband, without the second husband joining. So i'd Bro. Abr. tit. Cui in Vita, pi. 16, where it was,holden that a married woman might convey without her husband's concurrence an estate given to her on condition to sell. The question then is, whether, in the present case, the wife was not to be considered aa a feme sole t Her husband and she were separated by mutual consent, he was discharged from her debts, and had expressly, by his own act, given up his interest in her property, when he covenanted that she should dispose of it, and...
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