Short Studies in the Early Common Law. of property, independent of possession; as where the fee simple is in question.1 Per contra, her abstract rights were un affected by the coverture, — remained hers. Until the objects themselves came into pos session, the merger of her personality did not change her relation to them. That she was entitled to a reversion at some future time, that money was due her, that she had good title to land in another's seisin, — gave the husband no rights, was not affected by the coverture.2 1 The principle that even when the wife owns in fee simple, the husband's right attaches only to the freehold, and does not affect in any way the inheri tance, is very often overlooked. Even Professor Ames, in his instructive article on the Disseisin of Chattels (Harvard Law Review, vol. iii. p. 317, Feb ruary, 1890), says that if a disseised woman should marry the disseisor, the marriage would give the hus band a fee simple in the land, as it certainly would an absolute ownership of the chattel. He says so, but he will excuse me, I trust, for doubting if he ever thought so. a Albrecht, Gewere, § 24, has shown the true na ture of the husband's right, in Germanic law, in the wife's property, in terms that may be applied almost exactly to the English law; and he makes the same remark, that it is incorrect to consider the husband's rights as based on a gift to him of the wife's prop erty even in respect to personalty where he takes the entire irrevocable title (p. 265). Albrecht shows that this system appears most complete in the Sachsenspiegel (Sachs. Landr. i. 31, quoted by Albrecht, note 724), while in the Schwabenspiegel it is some what modified (cf. § 146, Lassb.) The gewere of the husband attaches to all person alty that comes to his possession — under sine hende und in sine gewere, notes 745, 747, — not to that which does not; and it is not lost by his death, though it is by divorce, when the wife retakes what she brought, and loses her morgengabc (p. 264, Sachs. Landr. iii. 74, in note 748). But this is not inconsistent with a continued owner ship of the wife, alike as to land and chattels, under or beside the gewere of the husband (pp. 259, 266 et seq.). Albrecht argues this in part from the power of the wife, even during the husband's life, to reclaim land that he had parted with without her consent; and from the power to convey with her consent that is thus implied. — following Eichhorn's view (St. u. R. G., § 451, note d), against Hasse, — assum ing that if she had not this, the vendee of the hus band would get rechte Gewere by expiration of year
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The absolute unity of husband and wife at common law is well shown by an early rule of pleading quoted F. N. B. 118 F. : "A receipt made by the husband by the hands of his wife is his own receipt, and the writ and the count shall suppose that he himself did receive, etc., without saying by the hands of the wife : but it is otherwise if a husband receive money of a stranger; then the count shall be that he received by the hands of a stranger." And so complete was his representation of her that if she had been made an executor, and was not yet of age to fulfil the office, yet " if married to a man of seventeen years of age or more [the age then required of an executor], it is then as if herself were of that age, and her husband shall have the execution of the will." Godolphin, Orphan's Legacy (1665), 102, citing Office Exec, cap. 12, 18. If any proof were necessary that there was no " gift " to the husband, no transfer of rights in the wife's property, at all in the eyes of the law, as a consequence of mar riage, it might be found in the one instance of a joint-tenancy held by the woman with other parties. Any transfer of her interest in such a joint-tenancy would sever it, and make the transferee a mere tenant-in-common. This would be equally true whether it were a gift or a sale, — the consideration makes no dif ference. And it would be difficult to find a single exception to this rule in the entire common law. But when the husband takes, upon mar riage, his wife's share, he takes it simply as joint-tenant, — as his wife held it; and loses it if she die, or gains the whole if the other party die; while if he himself die before and day (p. 267). This is certainly inapplicable to our English law, where it is expressly said that she could not resist his will while he lived. But it seems to me to be implied in the very defi nition of the husband's power to exercise the wife's rights, as defined by Albrecht, p. 277, and to be supported by many rules of the English law.
