The times. [volume] (Richmond, Va.) 1890-1903, 1890-10-30
HUSBAND AND WIFE.

II Il OF Illlle OF no Importance u tht lh'ih-
bers of our bar.
HUSBAND AND WIFE.
Section 2j02. Code 1881. amended by chap
ter 23S. page 1913. Acts lSSJ-'9O This section,
as il stands in the Code of l>Sl, provides.
thu; "when a husband and his wife have
signed writing purporting 10 con-
yey any estate, real or PERSONAL such
writing. after being duly admitted 10 record
as 10 both the husband and wife. shall con.
vev from the wife her right of dover, and
ali right, title. and interest which she may
have in the property conveyed thereby, n
eileciually rs if she were an unmarried
woman, &c.
The amendment makes two very impOT-
tant and material changes in this section.
First The amendment provides, in addi-
ton TO the above provisions, that all OF -
wife's interest as stated above, shall also
pass by writing contracting % convey
any estate, real or PERSONAL when such
writing contracting 10 convey has been
duly admitted 10 record as 10 both the hus-
band and wife
As ''writing contracting 10 convey any
estate, real or personal" Is an eXecut0ry
contract. the effect Of this portion OF this
amendment is 10 abrOgate. a. Ia contracts
of sale, the common law doctrine that an
eXecutOry contract cannot De enforced
against a married woman. See Cheatham
against Cheatham's executor, II Va. 800,
and Crockett against DOrlOt, - Va.
2i0. Hence il removes very
serious obstacle i'm concentrating sales Of
real estate under contracts Of sale and Op-
tons given by married men. For, hereto
fore, az shown by the decisions Of ours SUI
preme Court, a. well As those OF the SUI
preme Courts OF other states, many sales,
which had been considered certain have
been defeated, because of the wife's refusal
10 execute The deed Of conveyance in ac-
cOrdance with the contract Of sale.-See
Literal V. jackson and ais. 80 Va. 6O4 also
Cheatham V. Cheatham's eXOr., 81 Va. 39j-
which are the latest Virginia cases on this
subject. Under this amendment, if the
writing contracting TO convey" has been
signed by, and duly admitted 10 record a.
TO- both the husband and wife, the court
would have the poNer 10 enforce the specific
performance Of the contract against the
wife, as well as the husband in favor OF the
yendee. 1t is true that such a contract
might possibly have been enforced against
a married woman, as TO her separate estate
under section 22Ss, Code 1887; but it is Ger
tain that, prior 10 this amendment, such q
contract could not have been enforced
against a married woman 10 the extent Of
compelling her TO relinquish her contingent
right of dover in her husbands reality.
second. This amendment 10 section 2502,
Code 1887, also provides that when hus-
band and his wife have signed any
writing authorizing another to convey or
contract TO convey" any estate. real or per-
sonal, such writing, after being duly re-
corded both as TO the husband and wife.
shall convey from the wife her right OF
dover and all right, title and Interest which
she may have in the estate embraced
therein as eflectually as If she were at the
date an unmarried woman"
Now the only reasonable construction
which can be placed on this provision
allowing a married woman TO convey any
interest in real estate by writing "au-
thOrizing another 10 convey or contract to
convey is that any married woman can
now convey real estate In Virginia by "A
power of attorney. And this construction
seems almost absolutely certain from the title
to the act, which recites that section BOP (
the Code is..amended 80 as 10 give effect
10 powers of attorney by married
But when we consider the status
of the law of Virginia on this subject prior
10 the date Of this amendment il leaves its
in some doubt.
II is well known that, prior TO the Code Of
1881 married woman could not convey any
interest In real estate through an attorney
IN fact. See Shanks V. Lancaster and ais. )
i;rat. / 10. Ii is also we'll known that sec.
ion 300, Code 1851, gives the right Of con-
Feyance, through AN attorney in fact, only
% married women not residents Of Viz
,inia." This being the status Of the law on
March q, 1899. the date Of said amendment,
( the Legislature had intended 10 give the I
light 10 coayey, by power of attorney, to
married women residing IN Virginia, the
My proper way TO do so was to amend or /
epeal said section 1903, Code OF 1887, which /
elates exclusively 20 cOnyeyances by non 4
esident married women under powers OF
Ittorney. But as said section 300 was not
'mended so as TO apply TO married women