Year: 1876



 examination separate and apart from her husband before Justice of the | Supreme Court Probate Judge or No ! tary Public, or if executed out of the l Territory, then acknowledged before some Judge of d court of record, or ] before q commissioner, appointed uu- l der the authority of this Territory, tO take acknowledgment of deeds" It will be observed that this section does not provide that the wife shall be made acquainted with the contents of ! the instrument she is executing, nor | that she shall acknowledge upon an examination, separate and apart, that she executed the same freely and vol untarily, without fear or cOmpulsiOn or undue influence of her husband. and | that she does not wish to retract the execution of the same" as provided in | the Act of 1864, on conveyances. But ! the observance of these requirements of the last mentioned Act, was prob | ably contemplated by section 6, of the Act of 1865, now under consideration. | We have set out the several enact ments bearing upon the question we are considering, up to the time of the passage of the Act of 1S7I That Act is in these words: Section 1: Married women of the age of 21 years and up- wards, shall have the sole and exclu- siye control of their separate property, and may convey and transfer lands or any estate or interest therein, vested in or held by them in their own right, and without being joined by the hus- band in such conveyance, as fully and perfectly as they might do if unmar- 1 ried. 7" Section ,: "AD Acts and parts of Acts, 50 far as they conflict with the provisions of this Act; are hereby repealed" It was under this Act, with it's repeating clause, that this court held, ill the case of Miller vs Fish CT, the provisions of the 9th section of the Act of 1865 and all former provi- sions upon the subject under considera- ton, imperative as to married women of the age of 21 years and upwards. It Is true that in that case the question be- fore the court was, as to the right of d married woman to make convey ance of her separate personal property, without a writing so acknowledged, &c., but the section referred to in the Act of 1865 includes "all the separate proper ty of the wife and provides that no sale or other alienation of any part of such property shall be made, except by such writing, so acknOwl- edged, &c. Upon the argument in that case, and we thInk in the brief of the counsel of the respondent therein, the attention of the court was called to- some of the leading authorities cited by the couSel for the respondent in this, and the same position insisted upon which is now urged, that the Act of 1871 only operated tO repeal the pro- vision of section 6, of the Act of 1865, so far as it required that the wife shall be joined by her husband in the con- vcyance, &c. And yet tine court were unanimously Oi the opinion that the provisions in that section, touching the acknowledgements of married WO- men of the age of 21 years and up wards, were swept away by the Act of 1871.

 And as the court then held, the majority of the court now holds that by the Act of 1871, the Legislature in providing that q married woman's separate property should no longer be left to the management of her hus- band, but should be under her own sole and exclusive control, and tha she might convey and transfer the same as fully and perfectly ss if un- married, intended III all respects to place the wife of the age of 21 years III precisely the same attitude, as to the conveyance of her property, as if she were femme sole, that she should no longer be hampered with condi- tions and provisions, in the transfer and conveyance of her separate prop erty, which are not imposed upon un- married women.

 Among all the rules for the con- struction of statutes, so literally quoted by the respondents counsel, no one is more likely to lead to a truer interpretation of the intention of the Legislature, ill an enactment, than that of giving to it's language and scope the meaning it would convey to the common mind. It was upon such 3 reading of this Act of lS1 that this court held that the acknowledgment, separate and apart, &c., by the wife, as to her separate property, was no longer necessary to her conveyance thereof. The Act was certainly cal culated to mislead those acting under 1t, if it is to be constru ; as requiring any other act or the observance of any other formula, on the part of mar ried woman, than is required of an un- married one. We think 1t Is clear that the Legislature intended by the Act just what any person of ordinary intelligence would understand by 1t, and would ,eive and adopt as its obvious meaning. And we have no doubt that the common understanding of intelligent persons. as to the mean ing of the Act, would t. in precise &C., cordance with the construction we gave to it, in Miller vs Fisher.

 Again, had the Act been intended in this regard only to relieve married women from being joined in q con- veyance of their separate property by their husbands, and not to extend farther, it seems to us the Legislature would have used other terms then those with which the section con- cludes, and would have said, ''as fully and perfectly as if so join !" rather than the terms, "as fully and perfect ly as they mighti do if unmarried" " Certainly such a wording of the statute would make the construction given to it by the counsel of the re- spondent, much more plausible than the terms therein used. But the coun- sel for the respondent insists that the requirement. as to the scknowledg-