Arizona citizen., 1876-03-18

vised or Dcqueathed Uy her, in the same alaaner anu with like effect, as Ii she were unmarried" Section ,, Cf chap ter 42, " Uf conveyances," Howell Code, reads as follows: Husband and wife may, by their joint deed, convey the reaI estate of the wife in like manner aS she might do by her separate deed If she were unmarried.n Section ly same chapter, reads aS follows: "A married woman may convey any of heI real estate, by any conveyance thereof, executed anu acknowledged by herself and her husband, and certified ill the manner hereinafter provided by the proper officer taking the acknoW ledg
 menL" Section 21, same chapter, reads as follows: Any officer authorized by this chapter to ;ske the proof or ac. Acknowledgement of any conveyance, whereby any r.al estate Is conveyed, Ol may be affected, may take and certify the acknowledgment of d married woman to any such conveyance of real estate" Section -, same chapter, reads as follows: No such acknowledg. ment shall be taken, unless such mar. ricd woman shall be personally known to the officer taking the same, to be the person whose name Is subscribed tU such conveyance, as party thereto, or shall be proved 10 be such by credit able witness: nor unless such married woman shall bt made acquainted with the contents of such conveyance, and shall acknowledge on an examination apart from and without the hearing of herhusband, that she executed the same, freely and voluntarily, without fear or compulsiOn or undue influence of her husband, and that she does not wish tO rctract the execution of the same. " The next section prescrlbes merely the form of the certificate of the acknowL edgment, and need not be quoted. The same chapter designales the officers who may take acknowledgements of deeds in the Territory, among whom are notaries public, and justices of the peace, of the proper county.
 In the case of Miller vs Fisher the court overlooked the provisions in the statute on cOnveyanceS, contained in the Howell Code, and quoted above, and regarding the first section of the Act, "Of the rights of married women, ' Howell Code, as controlling upon the questions as to what the law was upon the subject in 1864, held that it was the intention of the Legislature, by the Act of 1871, to rcinstate married wO- men of the age of T years and up wards, as to their rights to their Sepa- rate property, 10 the same status in which they stood, aS was supposed by the court, under the provisions of the section referred to in the Act of 1861. "of the rights of married women"
 An attempt was made by the counsel for the respondent, to reconcile this section with the several sections of the chapter on cOnveyanceS, above quoted, but 10 Us the provisions of these two chapters seem irrecOncilablc. The first section quoted, authorizes the wife to contract, sell, transfer, mortgage, con- vev, devise or hcqucUh her separate property, in the same manner, with the like effect, as if she were unmarried" :" Her conveyance as soon as made would become cficctual. The delivering of the deed by her would divest her of all interest in the property, without any acknowledgment whatever. Whereas, under the section referred to m the chapter on cOnvCyances, of the year 1864, the wife's Ceed of her separate property would le d nullity, until ac- knOwledged, as inthat statute provided. Standing alone and uncontrolled by other provisions, tlere can be no doubt that under the fist section of the Act of 1864, married woman, without be- ing joined by her husband, could con vey her separate property, in the same manner and withOIt other ObServanceS as to forms or acknowledgment, than would be required if she were unmar ried And it was so considered by the court in deciding the case of Miller vs. Fisher, for, as has been already stated, in passing upon that case, the court only looked to this section as controlling the law upon this subject, under the original Howell Code, over looking the provisions touching the matter in the chapter on conveyances, but giving effect to tine provisions in the last named chapter. The husband must join in the conveyance, and the manner and form of the conveyance are clogged by the condition of the wlfe's acknowledgment, separate and apart, &c., before the deed can become eifectual for any purpose whatever.
 The Howell Code was prepared in great haste, immediately after the or @aniZation of the Territory, and acted upon at the first session of our Legisla- ture, and there was little time for care ful considerations of the provisions of the statutes of other States, which were incorporated into the Code. And it is not derogating from the just praise to which it's author and the Legislature are fairly entitled, to say there was much that was incOngruous and un- svstematized in its provisions.
 We have quoted the statutes, bearing upon the subject of the wite's acknowl- edgment, as they stood at the adjourn ment of the session of the Legislature of 1864. In 1885 an Act was passed, the first section of which reads as fol lows: "All property, both real and personal, of the wife, owned by her before marriage, and that acquired af- forwards by gift, bequeSt devise, or de scent shall be her separate property, and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards bv gift, bequeSt devise or descent, shall be his separate property" The second section of the same Act pro- vides: That all property acquired after marriage, by either husband or wife. except suth as may be acquired by gift, beques, devIse or descent shall be commOt property" The 3d. 4th. and 9th sections of this same Act provide for inventory and registration of the separate property of tbe wife
 and the 9th section, n,-from the opera
 ton of which III Miller vs. Fisher, wC