Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-08-30
IMPORTANT DECISION.
Court Finds for Defendant in Peaks
Va. Hutchinson.

~ vs. Hutchinson.
xssociate Justice w. P. Whitehouse
of,the supreme judicial court of Maine
has drawn the following rescript In the
Piacataquis county case of Peaks VS..
Hutchinson:
building does not become part
Of the realty when erected on another's
Land under an agreement that it shall
be the personal property Of the
builder, and
f1.) Husband and wife may make
such contracts with each other, under
the statute of 1866, c. So, OR. s.. C. GID
which provides that: THE contract
OF any married woman, made for any
LAWFUL purpose. shall be valid and
blasding. and may be enforced in the
same manner as if she were SOLE"
Il Is true that in Haggett vs.. Hurley,
Slime, 542, 1t was held that the dis
abilities of the wife have not been so
far removed by our enabling statutes
as to empower her to form business
partnership with her husband and
thereby subject her separate estate to
debts contracted by the partnership.
Among the reasons assigned in the
opinion for this conclusion Is the fact
that in the revision of the statutes
(Ch. 81, Sec. 4, r. S., 1871 and 1880
a married woman is made liable only
for debts contracted sin her own
name" 1t is suggested that these
words, which do not appear in the
orikinal act of 1866, seem to limit her
power to contract in such contracts
az she may make 'in her own name,
and not in partnership name.
So also in Pinkham VS.. Pinkham, 80
Me-. II. 1t was held that a wife cannot
bar her right and interest by descent
in her husbands real estate by a re-
lease to him during coverture. But
the Legislature had previously specl-
fed the methods by which dover
might be barred (R. S., Oh. 81, Sec o;
Ch, 1913. Sections T. and 81; and II
wAs considered that such important
provisions of existing law, designed
expressly for the protection OF the
RIGHTS of the wife in the estate or her
husband, ought not to be declared abro-
gated or suspended by Subsequent
enactments, without more dennite
EXPRESSION of the legislative purpose.
But our enabling statutes during the
last go wears were obviously INTENDED
tn confer upon a married woman i'm
portant rights and powers not pre-
vfously enjoyed by her, and 1t Is not
the province or the duty of the court
tn nulIify the statutes and defeat their
obvious purpose by excluding from the
operation of their general terms eacn
particular contract that may arise. on
the ground that it is not WITHIN the
irltendment of any of the acts. III
married woman is empowered to con-
yey. lease and manage her real estate,
to make any and all contracts in her
own name for any lawful purpose
and may contract with her husband
equally as within any one else there
seems to be no substantial reason why
the agreement in question. which mad
the effect to confer upon her property
a benefit without a burden, does not
easily fall within the manifest pur-
pose as well as the comprehensive
language of the statute.
A building erected by one on the lana
of another under an agreement that
II shall remain the personal property
OF the builder does not pass by con-
veyance Of the land to bona hde pur-
chaser without notice, although from
its character, purpose and moue OF use
II appears to be part OF the realty.
The early decisions of this court es-
tablished the principle that a building
erected by one man on the land of an
other by his permission, remains the
personal property of him who erects
IL and does not pass by a conveyance
Of the land to third person, although
the conveyance is to bona hde pur-
chaser without notice. These decisions
have never been overruled in this
state. although it must be admitted
that they have been somewhat dis
credited by the comments Of our own
court in more recent decisions anu
the rule established by them is un-
doubtedly contrary to the great weight
of authority relating to this question.
In view of the general policy of our
law to constitute the registry of deeds
the true source of information respect
ing titles to real estate, 1t may seem
that the Maine rule has no stronger
support in equity than in authority,
since under it's operation an innocent
purchaser of land finds incumbrances
upon il against which no ordinary care
or vigilance on his part would afford
any safeguard Of protection. But If it
be deemed more reasonable and just
that such an agreement should not De
effectual against any person except the
original parties thereto and those hav-
ing actual notice thereof, unless 1T is
in writing and recorded in the registry
of deeds. the Legislature can appro-
priately SO declare.
Judgment for the defendant.