of, shall be alienated, or in case of any transfer or change of title to the property insured, or any part thereof, or of any interest therein, without the consent of the company indorsed thereon, or if the property hereby insured shall be levied upon, or taken into possession or custody on any legal process, or the title to or possession be disputed in any proceeding at law or in equity, this policy shall cease to be binding upon the company."

On the 17th of May, 1876, Sossamon & Co., being indebted to Cohen and Rosler in the sum of $881.95, mortgaged the goods aforesaid, and also a certain piece of land and other personal property to Cohen and Rosler, with power to sell the property if the debt was not paid by the first of October, 1876, on giving twenty days' notice of the sale. This mortgage was duly registered. The judge was of opinion, upon these facts, that the plaintiff could not recover, and he thereupon submitted to a non-suit and appealed. To cite and to analyze the numerous cases to which we were referred on the argument, would be a labor without useful result. They may be found collected in May on Insurance and in the briefs of counsel. They generally turn on the language of the condition, under which a forfeiture of the policy is claimed to have been incurred. It has been held that, under a condition against alienation, no ferfeiture is incurred by mortgaging the property. At least not until foreclosure, although the right to redeem has been lost at law and turned into an equity. This is because, in many of the Northern states, a mortgage is not regarded as creating an estate in the mortgaged property, but merely a lien on it. A somewhat different view has been held commonly in this and other states. But we were referred to no case in which it was held that giving a mortgage did not work a forfeiture, where the terms of the condition were as comprehensive as they are in this case. There are two considerations on which, it seems to me, the question of forfeiture may always be fairly and reasonably decided.

1st. Does the making of a mortgage come within the words of the condition, as commonly understood? If it does not, a forced meaning should not be put on the words in favor of the company, while if it does the natural and usual meaning must be allowed to them, notwithstanding the conditions are in fine print, if it be legible.

If, in deference to what seems to be the weight of decisions, we admit that a mortgage is not an alienation, even after a forfeiture of the legal estate by non-payment of the debt at maturity, yet it must be considered, under such circumstances, as making a material change in the interest of the insured in the property-at least as much as a levy upon and seizure of the goods under execution, which is specially named as a ground of forfeiture. Both, at law, take the property out of the mortgagor, or defendant in execution, and vest it in another person; while, in substance, both are merely liens, from which the property may be exonerated by payment.

2d. When, as in this case, the making of a mortgage

comes within the apparent meaning of the words in the condition of forfeiture, it is proper, then, to consider whether there is anything in the nature of the contract, or in the purposes for which it was entered into, to contract the apparent meaning and restrict the words used. A reason why the company might intend to, and might prudently require that any diminution of the interest of the insured in the property should work a forfeiture, unless consented to by it, is obvious. No company will generally insure property for its full value. To insure it for more than its value is justly regarded as hazardous, and an inducement to fraud. A company looks to the amount of interest in property which the insured has at risk as a principal reason for expecting from him care and watchfulness to protect it from loss. Every diminution of the interest of the insured tends to diminish the watchfulness which is impliedly stipulated for, and when that interest is substantially wholly parted with in any manner, it is equivalent to an absolute alienation, which is admitted to be a ground of forfeiture. In many cases, a mortgage on property to its value, or for even less, is substantially an alienation, for although after a loss of the property the debt, or the residue of it, would continue owing, yet the insured might little regard his mere personal liability. At all events, it is neither unreasonable nor unjust to introduce in a policy such a condition of forfeiture. There is nothing in it to lead to a suspicion of fraud or deception on the insured, and having deliberately and knowingly entered into it, there is no more reason why it should not be enforced against him than the terms of any other contract would be. Judgment below affirmed.

1. HUSBAND AND WIFE.-Under the laws of Colorado, the wife is so far relieved from the disability of coverture, as existing at common law, that she is no longer sub potestate viri, in respect to real or personal property, and is as capable of the independent acquisition, enjoyment and disposal of the same as if the coverture did not exist.

2. THE LAWS AFFECTING THIS being in the nature of enabling statutes, must be liberally construed to effect the purpose of their enactment.

3. WHERE A DEED OF TRUST is executed to secure a note given to the wife, and the husband is made the trustee in the deed, he can, at a sale under such deed of trust, convey to the wife as fully as to any other person.

4. EJECTMENT EVIDENCE.- In ejectment it does not devolve upon the plaintiff relying on a deed made by a trustee at a sale under the trust deed, to show that the trustee complied with the conditions prescribed in the deed of trust. The legal estate passes by the trustee's deed-any defects in the execution of

Colorado, 1874, p. 185, (see Revision of 1876, page 615), in support of the proposition that the disabilities of coverture are entirely abolished. In ejectment the action is not on the deed; only those things which go to impeach its execution can be proven; the deed can not be attacked collaterally for matters outside of the deed, and that the defendant is estopped from proving or pleading his own infamy to defeat his own deed. 2 Greenl. Ev., (Red. Ed.). sec. 300, p. 282; Collins v. Blantern, as reported in 6th Am. Ed. of Smith's Lead. Cases, Vol. I, part 1, secs. 490, 495, 497 and 499. Also, notes to same case, pp. 629, 636, 637; Merryweather v. Nixon, 2 Smith Lead. Cases, 6th Am. Ed., 530, sec. 459; Inhabitants Worcester v. Eaton, 11 Mass. 368; 2 Greenl. Cruise Dig., p. 497, sec. 26; 1 Litt. (Ky.) 62, Thomas v. Thomas; Hovey v. Hobson, 51 Maine, 62; Doe d. Roberts v. Roberts, 2 B. & Ald. 367; Dyer v. Day et al., 61 Ill. 336; Doe v. Roll, 7 Ohio, 70; Bayard v. Colefax, 4 Wash. Circt. Ct. 38; Greer et al. v. Mezees et al., 24 How. (U. S.) 268; Hickey's lessee v. Stewart, 3 How. (U. S.) 750; Broom's Legal Maxims, secs. 571 and 569. For the interpretation of the homestead law, he relied on Drake v. Root, 2 Col. 685.

p.

THATCHER, C. J., delivered the opinion of the

court:

This was an action of ejectment brought by the appellee against appellant in the court below. On the eleventh day of August A. D. 1873, Albert W. Benson being at that time the owner in fee of the premises in dispute, made à promissory note for the sum of $250.00 payable to Catherine D. Caywood, the wife of William W. Caywood, two years after the date thereof. On the same day, to secure the payment of this note, Mr. Benson conveyed to Wm. W. Caywood, as trustee, the disputed premises, with power to sell and dispose of the same at public auction in the manner prescribed in said deed of trust, in case the grantor therein should make default in the payment of the promissory note, or any part thereof, or the interest thereon, and to make, execute and deliver to the purchaser at such sale a good and sufficient deed of conveyance for the premises sold. After the maturity of the note, Mr. Benson having made default in its payment, the trustee advertised and sold and conveyed the premises to Mrs. Caywood, the then holder of the note. The deed of trust and the note were offered and read in evidence without objection. To the admission of the trustee deed from Mr. to Mrs. Caywood, counsel for the defendant in the lower court objected on the sole ground that it was a deed executed by a husband to his wife. This objection was overruled, the deed admitted in evidence and an exception taken. The admission of the deed in evidence is assigned for error.

This brings us to the consideration of the question as to the relation of husband and wife under the laws of this state with respect to the independent acquisition, enjoyment and disposition of property. The general tendency of legislation in this country has been to make husband and wife equal in all respects in the eye of the law, to secure to each untrammeled by the other the full and free enjoy

ment of his or her proprietary rights, and to confer on each the absolute dominion over the property owned by them respectively. The legislation of our own state upon this subject, although yet somewhat crude and imperfect, has doubtless been animated by a growing sense of the unjustly subordinate position assigned to married women by the common law whose asperities are gradually softening and yielding to the demands of this enlightened and progressive age. The benignant principles of the civil law are being slowly but surely grafted into our system of jurisprudence. "In the civil law," says Sir William Blackstone, Com. (Cooley) 444 “husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries; and therefore in our ecclesiastical courts, a woman may sue and be sued without her husband."

ence.

The courts which have ever been conservative and which have always been inclined to check with an unsparing hand any attempted departure from the principles of the body of our law which were borrowed from England, in the states which were the first to pass enactments for the enlargement of the rights of married women, regarding such enactments as a violent innovation upon the common law, construed them in a spirit so narrow and illiberal as to almost entirely defeat the intention of the law makers: but generally with a promptness that left little room for doubt that a succeeding legislature would reassert in a more unequivocal form the same principles which the courts had before almost expounded out of existTo understand the marked changes which our own legislation has wrought in this respect, it is necessary that we should consider the disabling incidents and burdens attendant upon coverture at common law. At common law the husband and wife are one person, and as to every contract there must be two parties, it followed that they could enter into no contract with each other. The very being or legal existence of the wife is suspended during the marriage or at least is incorporated and consolidated in that of the husband, under whose wing, protection and cover she performs everything. Upon the principle of a union of person in husband and wife depend almost all the legal rights, duties and disabilities that either of them acquire by marriage. 1 Cooley's Blackstone 442. All the personal estate, as money, goods, chattels, household furniture etc., that were the property and in possession of the wife at the time of the marriage are actually vested in the husband, so that of these he might make any disposition in his lifetime, without her consent, or might by will devise them, and they would without any such disposition go to the executors or administrators of the husband, and not to the wife, though she survive him. Debts due to the wife are so far vested in the husband that he may by suit reduce them to possession. 2 Bacon's Abrdgt. 21. The rents and profits of her land during coverture belong to the husband.

The law wrested from the wife both her personal estate and the profits of her realty, however much it might be against her will, and made them

liable for his debts. An improvident husband had it in his power to impoverish the wife by dissipating her personal estate and the profits of her realty over which she, under the law, by reason of the coverture, had no control.

The wife in Colorado is the wife under our statutes, and not the wife at common law, and by our statutes must her rights be determined; the common law affecting her rights, as we shall presently see, having been swept away. By our law, it was declared that the property, real and personal, which any woman may own at the time of her marriage, and the rents, issues, profits and proceeds thereof, and any real, personal or mixed property that shall come to her by descent, devise or bequest, or be the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts. R. S. 1868, p. 454. The legislature, however, being reluctant to allow a married woman the absolute dominion over her own real property, further provided that she could only convey her estate in lands by uniting with her husband in any conveyance thereof, and acknowledging the same separate and apart from her husband. R. S. 1868, p. 111, sec. 17.

66

It was not to be expected that our laws would long be permitted to remain in this anomalous and incongruous condition-declaring in one section that the wife's real property should remain her separate estate, not subject to disposal by her husband, and in another that she could not convey it without the consent of her husband, which is necessarily implied by his uniting in a deed with her. By an act concerning married women," approved February 12th, 1874 (see Revision of 1876, p. 615), it is provided in section 1, that any woman, while married, may bargain, sell and convey real and personal property, and enter into any contract in reference to the same, as if she were sole. Section two provides that she may sue and be sued in all matters the same as if she were sole. Section three provides that she may contract debts in her own name and upon her own credit, and execute promissory notes, bonds, bills of exchange, and other instruments in writing and may enter into any contract as if she were sole. Section four repeals section seventeen of chapter seventeen of the Revised Statutes, which required the husband to unite with the wife in conveying her separate

estate.

This is essentially an enabling statute, and as such must be liberally construed to effectuate the purpose of its enactment. It confers, in terms enlarged, rights and powers upon married women. In contemplation of this statute, whatever may be the actual fact, a feme covert is no longer sub potestate viri, in respect to the acquisition, enjoyment and disposition of real and personal property.

This statute asserts her individuality, and emancipates her in the respects within its purview from the condition of thraldom, in which she was placed by the common law. The legal, theoretical unity of husband and wife is severed so far as is necessary to carry out the declared will of the

law-making power. With her own property, she, as any other individual who is sui juris, can do what she will, without reference to any restraints or disabilities of coverture. Whatever incidents, privileges and profits attach to the dominion of property, when exercised by others, attach to it in her hands. Before this statute, her right to convey was not untrammeled, but now it is absolute, without any qualification or limitation, as to who shall be the grantee. Husband and wife are made strangers to each other's estates. There are no words in the act that prohibit her from making a conveyance directly to her husband, and it is not within the province of the court to supply them. When a right is conferred on an individual the court can not, without transcending its legitimate functions, hamper its exercise by imposing limitations and restrictions not found in the act conferring it. Were we to construe this enabling statute so as to deprive the wife of the right to elect to whom she will convey her property, we would, it is believed, thwart the legislative will, whose wisdom we, as a court, are not permitted to question. The disability of husband and wife to contract with and convey to each other, was at common law correlated and founded mainly upon the same principle, viz.: the unity of baron and feme. The removal, in respect to the wife, of a disability that is mutual and springing from the same source, removes it also as to the husband. The reason, which is the spirit and soul of the law, can not apply to the husband, as it no longer applies to the wife. If she may convey to the husband the husband may convey to the wife. Allen v. Hooper, 50 Maine 371; Stone v. Gazzonn, 46 Alabama 269; Burdens v. Ampesse, 14 Mich. 91; Patten v. Patten, 75 Ill. 443.

Perhaps the right of the husband, when acting in a representative capacity in autre droit to make a deed to his wife might be supported at common law. Co. Litt., 112 a. 187 b; Com. Digest, Barron &. Feme D. 1. This doctrine, however, is repudiated in New York (Leitch v. Wells, 48 Barbour 654), but sanctioned in Pennsylvania (Dundas's Appeal, 64 Penn. 332). We, however, rest our decision, not upon this mooted doctrine, but broadly upon the statute, under which a husband, when acting, not in a representative capacity, but in his own right, has, as we have seen, the right to convey directly to the wife. But it may be urged that if not by reason of the disability of coverture, then by reason of the peculiarly intimate relation of husband and wife, and the consequent opportunity to commit and conceal fraud, the same principle that prohibits a trustee from executing a trust in favor of himself, also prohibits him from executing it in favor of his wife. This position is not without force. Dundas's Appeal, 64 Penn. 332. It must, however, be borne in mind that it is only in the absence of an express agreement that the law, suspicious of fraud and collusion where a fiduciary relation exists, will not permit a trustee to become either directly or indirectly a purchaser at his own sale; but where the right to purchase is conferred in clear terms by the instrument appointing him, or where, as in the case before us, the wife, as the

holder of the note, is, in unmistakable language, authorized to buy at the trustee's sale, the law interposes no impediment to the validity of a sale so made. Perry on Trusts, Sec 602; Dundas's Appeal, cited supra, is precisely in point.

The evidence of Eugene Wilder, one of the proprietors and publishers of the Boulder County News, (which was received without objection) sufficiently proves the due publication of the trustee's notice of sale, if the proof of that fact was necessary to entitle the plaintiff to offer her deed in evidence.

In our view, in order to entitle a purchaser at a trustee's sale to maintain ejectment, it does not devolve upon him to show that his grantor (the trustee) had complied with the conditions prescribed in the deed of trust. Reese v. Allen, 5 Gilman, 241; Graham v. Anderson, 42 Ill. 515; Taylor v. King, 6 Munf. (Va.) 358; Harris v. Harris 6 Munf. 367.

In Dawson v. Hayden, 67 Ill. 52, it was held if a trustee, under a power in a deed of trust, makes a conveyance of the premises, without complying with the provision in the deed of trust, requiring publication of sale for a specified period, the legal estate will nevertheless pass to the purchaser, and the deed to him can not be impeached on that ground by a defendant in ejectment. It is a proper subject of inquiry in a court of equity.

A legal though defeasible title was by the trust deed vested in Mr. Caywood. Perry on Trusts, Sec. 602, and cases cited. By the deed executed by Mr. Caywood to his wife, although inartificially drawn, the legal title passed to the purchaser and became absolute in a court of law. That it should so pass was the evident intent of the grantor therein. The deed purports on its face to have been made for the sole purpose of executing the trust.

To give it any other construction would be to defeat the manifest purpose of its execution.

As when the plaintiff rested she had shown by her deeds that the legal title to the premises in dispute was in her, the motion for a non-suit was properly denied. The defendant offered in evidence the deposition of A. W. Benson, which the court excluded. The exclusion of the deposition is assigned for error. The deposition tended to show that the note and trust deed offered in evidence were executed in pursuance of an agreement between Benson and William W. Caywood, by which Benson was to enter under the pre-emption laws of the United States, a certain tract of land, and convey the same to Mr. Caywood. Had Benson, in pursuance of the agreement, entered and conveyed the land to Caywood, he would have been guilty of great moral turpitude, involving the crime of purjury. The consideration was therefore illegal. Hoyt v. Macon, 2 Col. 502.

Can a defendant in ejectment show that the consideration for a deed, under which the plaintiff claims title, was either wanting or was illegal or fraudulent? That a conspiracy existed to defraud the United States out of the title to one hundred and sixty acres of land the deposition tends to show. Nothing appears to relieve the consideration from the taint of illegality and fraud. The question

here presented was very fully considered in the case of The Inhabitants of Worcester v. William Eaton, 11 Mass. 368, in a writ of entry in which the plaintiff sought to avoid the deed under which defendant claimed title by showing that it was executed for an illegal consideration. The consideration was an agreement to compound a felony. The court says: "A bond or other obligation, or a written promise, founded upon such a consideration, may be avoided: because the law will not uphold a contract or permit a party to enforce it, if it was made to secure the price of an unlawful act. ** * If one holds the obligation or promise of the other, to pay him money, or do any other valuable act, on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court, and the law will say: 6 Our forms and rules are established to protect the innocent and to vindicate the injured, not to aid offenders in the execution of their unjust projects,' and if the party who has foolishly paid his money repents his folly, and brings his action to recover it back, the same law will say to him: "You have paid the price of your wickedness, and you must not have the aid of law to rid you of an inconvenience which is a suitable punishment of your offense.' A deed of bargain and

*

**

sale, signed, sealed, delivered, acknowledged and recorded, is an actual transfer of the land to the grantee, as much as the delivery over of a sum of money or a personal chattel."

The court held that, the title having passed, the deed could not be avoided by showing the illegal consideration. It is not doubted that if the defense had gone, not to the consideration, but to the execution of the deed, it would have been admissible. Thus it might be shown that the deed was executed under duress, or that it had been misread to the grantor, or other evidence might be given tending to prove that he did not assent to it. But want of, or fraud in, or illegality of the consideration in a plaintiff's deed, may not be shown by a defendant in ejectment. The defendant's remedy, if any he has, is not in a court of law. Doe dem. Roberts v. Roberts, 2 Barn. & Ald 367; Taylor v. King, 6 Munf. (Va.) 365; Dyer v. Day, 61 Ill. 336; Hovey v. Hobson, 51 Maine 67. The deposition of Benson was properly excluded.

Defendant then offered to introduce in evidence, a warranty deed, dated June 3d, 1875, from Alfred W. Benson, and Helen Benson, his wife, purporting to convey the premises in dispute to him, and containing a waiver of homestead exemption in the body of the deed. By the stipulation filed in the cause, it appears that Benson, on the 4th day of February, 1875, a year and a half after the execution of the trust deed to Caywood, caused the word 66 homestead" to be entered of record on the margin of his recorded title. The law requires such entry to be made to entitle a householder to a homestead. R. S., 385. It is the record entry that proclaims to the world that the owner of the property claims it as a homestead. Until the entry is made it is not in contemplation of law a homestead, and therefore it can not be said that as the wife of Benson did not join with him in the