Arizona citizen., 1876-03-18

y lO assert her own wishes ana rCiuS1 to make the acknowledgment, when 1T the presence of notary! IT this safe guard, 50 called, for the wite's interes
 was ever, under any law for the con veyance of her separate property, of any | practical value, which we very muci
 doubt, there can be no doubt that undeI a law allowing the wife tO convey with
 out being joined with her husband, anC IwIthout his consent or even knOwl edge, such d provision is vain thing, needless, useless requirement, produc tive of no possible beneticent results. But the statute in the Howell Code ''Ot Conveyances," Compiled Laws pages 362 and 363, section -, which i
 Is insisted should be taken in cOnncc ton with the Act of 1865, provides
 that upon this examination, separate and apart from the husband" &c., 'ih, wife shall be made acquainted with tht contents of the conveyance, &c., ant 1t was gravely and earnestly urged, by counsel for respondent, that this was al important safeguard lo the wife, the presumption of law being that the wife would not know the character of the instrument until sO informed by the officer taking the acknowledgement; and il Is not without some regret that WIG admit that there were American au thOrities cited. sustaining the counsel in hIs position. What Is the basis fol such a presumption? nmust be found if anywhere, i'll the supposed ignorance or stupidity of the wife. Before hel marriage, il of the age of 21 years, and after her husbands death, the law pre- sumes her competent to buy, sell and convey property, and supposes she act, in such matters as intelligently as if shC were of the opposite sex; but during
 the existence of the marriage relation somehow thIS condition of ignorance and stupidity is supposed to settle down upon her, to benumb her faculties, tC cast cloud upon her intelligence, to be lifted only by the death of her spouse, or other severance of the marriage bonds. We are quite sure that the pre- sumption contended for by the counsel for the respondent, that woman of ma ture years and an American wife, ceaS es, from the day of her marriage, to know what she Is doing in the eXecu ton of conveyance until advised Oi the contents of the instrument, by a no tary or other officer, obtains no where else than in a court of justice, and should no longer obtain there; and We are equally certain that the Lcgisla ture of Arizona, in cnacting the law oi lSI, which gives to the wife the sole and exclusive control of her separate property, enabling her tO convey the same without being joined with her husband, ''as fully and perfectly as fl unmarried,' did not intend that any sucm presumption of the wifc's ignor ance or stupidity should obtain there after Agdn, as tn the utility of the provision for this acknowledgment of the wife, upon :tn examination separate and apart, &c., IL Is somewhat remark. able, considering the learning and re- search which has been bestowed upon the matter, that not a Case has been re- ported, sO far ;ls we can discover, wherein it appear, that this safeguard, SD called, even in a single instance, operated tO project the interest of inc wife, or save her from coercion or i'm position. We do not remember the ci- iatiOn of such d case, nor have we in our own experience, nor in our associ- auon with the legal profession, known or heard of any case where this pro vision ever operated as a safeguard tu the wife in any respect whatever Again, while we deem the provision re- ferred Co, to be valuelesS 10 the wife as a safeguard against the coercion of her husband, and imposition from others, the provision is not simply harmless, but has been the occasion of frequent fraud and wrong; for it has often hap pencd that when a wife has joined her husband in a conveyance, under laws recurring her to do so, and her acknowl- edgment has been made to the officer separate and apart, so fully and complet- elv in all respects, as required by law, and the officer, purposely or ignOrantly, has failed to write the certificate of ac- knOwledgment Tn the exact form re- ouired. the wife, being controlled by the husband, has refused to aid in the correction of the error, and the pur- chaser is left without a remedy.
 Itis very safe to say that greater frauds and more injustice has resulted from the requirement of this form of ac- knowledgment, on the part of the wife, than would be likely to obtain where the wife's acknowledgment may be taken as in other cases. Again, the pro- vision. If valueless to the wife, Is not harmless. It treats the wife as an in ferior person, especially liable to CO ercion and imposition, and as being ln- cable of caring for and guarding her own interests, as other sane persons are capable of doing.
 If our statutes of 1864 and 1865, which counsel for respondent insists are still in force, are so, and are not repealed by the Act of 1871, the woman who married yesterday, and was possess ed of a fortune acquired by her own learning, labor or skill, cannot today make a valid sale of a dilapidated sew inr machine, without putting the con
 tract in writing, and going before 8 Justice of the Supreme Court, or othel officer. and acknowledging upon an eX animation, separate and apart trom hel husband, upon being made acquainted with the contents of the instrument 1 (which she may have written herself, that she executed the same freely anC
 voluntarily. &c.
 { We will now examine the Severa
 Acts of our Legislature, bearing upoI ithe question under consideration, ant | in the light of these enactmentS review { the decision in the case of Miller yS ! Fisher; for if that decision was CT roneous, if it clearly appear that ih' law was not what il was declared tC be m that case, the construction w' then gave to the statute must be over
 ruled, however beneficial that con struction may appear to be, to those
 whose rights and interests are involved ! i'm tbe oticstion Section 1. chapter 32