A Treatise on the Law of Husband and Wife: As Respects Property : Partly Founded Upon Roper's Treatise, and Comprising Jacob's Notes and Additions Thereto

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Banks, Gould & Company, 1850 - Husband and wife
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Contents

Mr Ropers opinion ii
3
Wifes conveyance under old law by fine or recovery ii 45
7
Exceptions
8
Effect where contingent remainders interposed between
9
Effect of fine by wife alone ii 46
10
K Wife alien
10
Of the husbands covenant that his wife shall
10
BOOK THE FIRST
11
Valid if republished after husbands death
12
Wifes will under power
13
Where power applies only to will after marriage
14
Mr Jacobs remarks thereon
15
Not determination of lease at will to or from wife
16
Warrant of attorney to wife
17
Of the effect of marriage upon the prior acts and agreements of the husband or wife with or in re lation to each other 1 Legacy from husband to wife...
18
Cannel v Buckle
19
Husbands bond to trustee for wife valid in law
20
Whether valid in equity
21
Of executrix with residuary legatee
22
Where husbands real estate devised to wife and perso nalty insufficient
24
CHAPTER II
25
They may take in teveralty
26
Legacy to husband and wife jointly
27
OF GIFTS OR GRANTS BETWEEN HUSBAND AND WIFE Page 1 Void at common law
29
Copyholds
30
Not of husband
31
Purchase in name of wife prima facie gift to her
32
Improvements of wifes estate
33
CHAPTER IV
34
Or power over fund ii 125
35
Husbands interest qualified
36
Choses in action accruing during marriage
37
Negotiable instruments
38
2 Husband not intitled where wife executrix
39
But may administer in her right
40
I
41
CHAPTER V
48
Receipt of debt where wife mortgagee in fee
53
into possession
55
2 Payment of fund during life of holder of prior interest
56
Doswell v Earle
57
Remarks thereon
58
Bishop v Colebrook
59
Effect where prior interest vested in husband or hus band and wife
60
1 Judgment will survive to wife if party to suit
61
Husband may sue alone for choses in action accruing during marriage
62
In what cases wife may join in action
63
Unless where contract altered after marriage
64
Wife must join where executrix
65
Joint decree survives to wife until order for payment to husband
67
Wifes interest defeated if settlement approved
69
Of the effect of an award or agreement pendente lite in vesting in the husband his wifes chose in action 1 Wife not bound by award of chose in actio...
70
CHAPTER VI
72
Whether he can release legal choses in action not imme diately recoverable
73
Thomson v Butler
74
Mr Jacobs remarks
75
Cannot be absolutely assigned by husband
77
In fee
78
Term in trust to raise portion for wife
79
Rights of assignee in bankruptcy same as husbands
80
Wife intitled by survivorship to equitable chose in action where not recovered in husbands life
81
Whether fund immediately recoverable or reversionary
82
And as assignee in insolvency
83
Purdew v Jackson
84
Whether fund reversionary or immediately recoverable
86
OF THE EFFECT OF THE WIFES CONSENT IN VESTING THE WHOLE
88
Where husband fraudulently prevents agreement from being in writing ii 113
89
Of the wifes power of disposing of her separate
92
CHAPTER
94
Not of term settled to wifes separate use
98
OF THE JURISDICTION
101
His collateral grants not binding upon wife
103
Power over term vested in wife as executrix
104
2 Acceptances of new lease
105
Mortgage
106
Payment of mortgage debt by husband and assignment to himself
108
Judgment in ejectment in husbands name
109
Term forfeited if husband commits waste
110
CHAPTER IX
112
Agreement founded on letters or notes ii
113
op THE HUSBANDS TITLE TO HIS WIFES FREEHOLD ESTATES OF IN HERITANCE AS TENANT BY THE CURTESY Page
114
3 Circumstances necessary to curtesy
115
Whether husband intitled where wife idiot
116
rule laid down by Lord Langdale ii
117
Momentary seisin sufficient
118
Effect of suspension of freehold
119
Or where advowson appendant to manor
120
Issue must be capable of inheriting estate
121
Second husband not intitled where wife and first husband donees in special tail
122
The issue may be born at any time during marriage
123
Curtesy though no issue by custom of gavelkind
124
Alien husband made a denizen where intitled
125
When naturalized
126
estate for life and reversion
127
3 No curtesy where wifes estate not of inheritance
128
Gift or charge by wife of separate property good considera
132
wifes estate
134
Whether curtesy where estate determines by conditional limitation or executory devise
135
Executory trusts
136
No eurtesy where intent to exclude
137
Effect where wife has life estate for separate use with equitable remainder in fee
138
Hearle v Greenbank
139
1 Intitled to emblements
142
What acts will be a forfeiture 1G9 3 Waste
148
May grant lease for years
150
And by copy of court roll
151
1 Birth of wifes brother
152
Feoffment by husband on condition and entry
154
Curtesy formerly extinguished by husbands fine
155
His attainder for treason or felony a forfeiture
156
Effect of pardon on the title of the lord by escheat
157
Wifes election to take under will
158
Wifes attainder of treason before birth of issue
159
of parliament ii 49
160
Where lands acquired after pardon
161
CHAPTER XI
162
Extends to joint estate of husband and wife
163
Reversion or remainder of wife within statute
164
Lease not warranted by custom
169
Right of trustees where husband has lite interest in sum cov
175
1 Conveyances before 3 4 W 4 c 27 17V 2 Ravald v Russell 17
179
Conveyance since 3 4 W c 27
180
Remarks thereon
181
Distinction between vacant possession and conveyance
182
3 Whether equity will enforce specific performance
183
Cases against specific performance Otread v Round
186
Bryan v Woolley
187
Davis v Jones
188
Mr Jacobs remarks 18
189
Remedies against husband if specific performance re fused
191
Where wife has only partial interest
192
CHAPTER XII
193
Of leases granted by husband and wife under stat
199
Lease in reversion
206
Must not be without impediment
207
Whether lease for years determinable on lives within act
208
Old leases must have expired or have been surrendered within year
209
Cancellation not a surrender
210
Rent must be reserved to husband and wife and wifes heirs
211
Rent customarily paid must be reserved
212
C
213
At what limes to be payable
214
Old rent must be reserved in kind
215
How rents to be reserved where different lands com prised in same lease
217
Where pro rata reservations are necessarily good
219
Leases not valid under act to be considered as leases at common law
220
CHAPTER XIII
221
Strathmore v Bowes
228
CHAPTER XIV
230
Not given out of legal chosei in action
231
Effect where wife plaintiff in equity
234
Settlement out of trust term as against husband
235
Intitled to settlement as against assignee by purchase
236
1 Whole of wifes property not required to be settled
240
Eren where the husband is insolvent
241
2 Only intitled through wife
242
35 What amount of income or capital given to husband
245
1 Payment to husband before suit
249
CHAPTER XV
255
Offer of reconciliation by husband
261
Chesslyn v Smith ii
263
Mr Ropers remarks 2G7 5 Mr Jacobs observations 209
266
sale to trustee set aside
270
Restrictions upon anticipation valid ii
274
As where mortgage and settlement at same time
275
Wife may waive right to exoneration
276
3 Mere reservation to husband will not affect wifes interest
277
Receipts of wife alone to be sufficient discharges ii
278
Barrymore v Ellis ii
279
Calmady v Calmady
288
Wife surviving intitled only to one years arrears ii
289
Except where given by stranger sr mblv 28
290
Or where devised estate not subject to mortgage
291
Whether intitled to reimbursement out of husbands contingent or future assets
293
Right to paraphernalia barred by settlement
294
CHAPTER XVIII
295
Defeated by husbands will
296
Effect of agreement that personalty shall be distributed according to the custom
297
Effect where equitable intestacy
299
Custom of York attaches only where deceased resident
301
Attaches to honorary freemen
302
Effect of advancement to children or widows share
303
What are to be considered advancements
305
Premiums given with children
306
But custom construed strictly
307
2 Deprived of widows chamber if assets insufficient
308
No deduction out of pinmoney for alimony where husband and wife separated ii 291
311
Jointure only expressed to be in bar of dower no bar of customary part
314
Instance where widow barred of dower thirds and cus tomary share
315
Barred of distributive share if intent appear
316
May elect where provision made after marriage
317
Although by deed separation to be for life ii
320
CHAPTER XIX
321
Equity will not enforce agreement for separation ii
327
Kinds o dower other than dower at common law
328
2 No dower of common without stint
329
Dower of mines
330
Whether of castles holden of tenure
331
D
332
Mr Jacobs remarks
333
Instance where right to dower depends upon election of heir
334
1C Option to purchase estate
335
Effect of dower act
337
1 No dower of reversion on estate for life
338
Effect where two widows dowable
339
survives
342
Effect of severance of joint estates
343
Widow dowable subject to lease and intitled to third of rent
344
Mr Jacobs remarks
345
in land
357
Widow now dowable of equitable estates
358
Widow of trustee or mortgagee in fee dowable at law but will be restrained in equity
359
Where alleged trustee is owner of estate
360
Minority of heir no objection to his assignment
361
1 Widow cannot enter until assignment
362
Why assignment requisite
363
Writ de quarentina Sic
364
In hands of other persons
373
Tithes
374
Instances of lands
375
In the plea the word assignavit necessary
376
Remedy against excessive assignment by sheriff at law
380
In equity
381
Secus if heir under age
382
Writ does not lie upon excessive assignment by sheriff
383
Whether where open mines included in assignment
384
Improvements by heir after husbands death
385
Where value impaired during husbands life
386
Dower assignable in Chancery
387
But wife intitled to exoneration out of his general estate
388
After assignment and entry widows seisin complete
389
Widows tortious conveyances
390
marriage
394
Instances
395
Release of services to heir will enure to widow S95 21 How widow to answer to heir her third where service entire
396
Intitled to writ of dower undc nihil habet
397
Prascipe
399
Essoin
400
The count
401
Evidence of marriage in a writ of dower
402
Issue judgment and execution
403
If widow in part endowed unde nihil habet lay not at common law
404
Proceedings against alienee when heir vouched
405
Assignment of dower when lands aliened to different persons
406
Now no damages recoverable beyond six years before action
407
Remarks upon statute of Merton
408
Not to writs of right of dower scmblt
409
Particulars to be found by a jury for widow
411
Damages and costs when lost
412
Widow must demand dower to intille her to damages
414
Acceptance of dower a bar to damages
415
Plea of detention of charters
416
When heir excluded from plea
417
Heir need not be solely interested in deeds
418
1 Dower usually sued for in equity
419
Mr Ropers remarks
428
Mr Jacobs opinion
430
Equitable jurisdiction extended by new dower act
431
CHAPTER XX
432
Amount of jointure not prescribed by statute
434
No mode of limitation expressly required by statute
435
Requisites to valid jointures at law
436
But uncertainty in this respect arising from defective title will not render jointure void
437
Estate must be such as may continue for widows life
438
Mr Jacobs opinion
439
Jointure must be made before marriage to bind wife
440
Jurisdiction of courts of law to compel widows to elect between jointures after marriage and dower
441
No jurisdiction unless jointure within statute of Hen 8
442
Whether parol evidence admissible
443
jointure
444
Secus in equity
445
Jointures made not by husband within act 44G 37 Effect of new dower act 44G 38 Jointure of copyholds not a bar to dower
446
2 If before marriage with wifes consent good though not commencing from husbands death
447
binding
448
Widow may elect between dower and equitable jointure
449
Rule as to parol evidence
450
Wifes freebench barred by jointure expressed to be in lieu of dower
451
2 Infant bound by antenuptial jointure
452
statute
457
Not bound by uncertain or precarious jointure
459
Effect where husbands title defective
460
Mr Jacobs opinion
461
Assent of parents or guardians of infant not indispens able scmble
462
1 Intitled to emblements
463
TOL I
464
But where jointure after marriage she might disagree and elect to take dower
465
Jointure barred by husbands fine with proclamation
466
No act of wife in pais will have that effect
467
Nor by husbands felony or treason
468
Precluded in equity where evicted of antenuptial jointure
469
Other remedies of wife on eviction
470
1 Agreement before marriage to make jointure specifically performed
471
annual value
472
Relief where outitanding satisfied terms
473
2 Defects supplied in equity 475
474
If intent appear in writing
475
Agreement to jointure by tenant for life in remainder good
476
Agreement not enforced if intent to execute power un certain
477
What deductions to be made on executing power to settle particular sum
478
Jointure to be without deduction for taxes c
479
Value of jointure to be estimated when power executed semble
480
Londonderry v Wayne
481
Mr Ropers remarks thereon
482
Trevor e Trevor
483
Husband although having jointured first wife may join ture second semble
484
Such jointure cannot be made where wifes fortune settled to her separate use
486
1 Distinction between performance and satisfaction
488
Presumption of performance not rebutted by slight cir cumstancei
490
Where purchase part performance
491
Rule as to satisfaction
492
No satisfaction where provision not ejusdtm generis or inferior in value
493
Remedy by 11 Hen 7 c 20 391
497
Statutes of Hen 7 extends to mere right or title of dower
500
Estate derived from husband or his ancestors within statute
501
From husbands ancestors
502
Where money paid by wifes friends will not take join ture made by husbands ancestors out of statute
503
What will be considered purchases 604
504
Estates belonging to wife or derived from her ancestors not within act
505
Or where remainder limited to stranger
506
Whether widow tenant in tail general ex provisione viri the reversion being in the husbands heir is within act
507
Estate in fee simple not within statute 50S 33 What alienations within or not within statute
508
Lease by widow for life
509
Who intiiled to enter
510
Widows discontinuance with consent of heir no forfeiture
511
CHAPTER XXI
516
SECT in What acts by the husband and wife jointly cfter
525
Attainder for treason
529
When attainder takes place
530
But not of lands acquired after pardon
531
Unless wife under disabilities
532
Widows right not defeated by husbands will without custom
533
Is subject to his charges and contracts
534
2 Husbands alienation
535
1 Attainder of treason murder or felony
538
Elopement
539
Wife may convey contingent and future interests and rights of entry ii 49
595
Mr Jacobs remarks
612
Reconciliation must be voluntary
639

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