Ohio’s unique rule
The deed itself is in the usual form: a fee simple transfer of 40 acres of land from Jonas and Sarah Haney of what was then Mercer County, Ohio, and later became Auglaize County, to Elizabeth McCoy of the same county.
The 1840 document contains the usual land description, recital of the payment, and warranties of title.
And the wife in the transaction, Sarah Haney, “in consideration of the the sum of one dollar … in hand paid” gave up her dower rights to the land as well.1
None of which gave reader Pam Vestal any pause at all.
What bothered Pam was the fact that, by this deed — and another one executed around the same time — Jonas and Sarah were transferring land to two daughters.
But daughters. Married daughters, like Elizabeth (Haney) McCoy. At a time when married women had very few rights over their own property.
Why, she wondered, would the parents do this? Didn’t the land automatically get placed under the control of their husbands? What advantage could there be to giving it only to the daughters?
Pam is surely right about the rules affecting married women and control of property like this. Under the English common law, as followed in most of early America, a wife had no separate legal identity from her husband:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert; is said to be covertbaron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.2
And, under the common law rules, “all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable…”3
Under the common law, a husband was given ownership of all of his wife’s personal property, and control over all of her real property — her land.4
The laws didn’t start changing in the United States until the 1830s — Mississippi was the very first state to enact a married women’s property act5 — and Ohio didn’t pass its first statute giving a married woman some control of her real property until 1861. And that law only protected women whose husbands no longer lived with them.6
So why in the world were the Haneys selling land to their married daughters?
It may have been because the Ohio Supreme Court had spoken on the issue — and had done something no other court until then had done. The Ohio Supreme Court had recognized the right of a married woman to dispose of her property — even her real property — by writing a will.
In 1831, the Ohio Supreme Court was called upon to decide a contest over some land. It had been owned by one Catherine Pegg, a married woman who was separated from her husband and who alone lived in Ohio. She had left the land in her will to her daughter Mary Ann Pegg, who had sold it in 1830. The question was whether the will was valid, or whether the husband — still living — had rights in the land since he hadn’t consented to the will.7
The Court began by noting that common law certainly did not allow any married woman to make a valid will.8 But, it went on, the issue turned not on common law rules but on Ohio statute, and:
On February 18, 1808, (a) law was enacted to take effect on the first day of June of that year. 6 Ohio L. 75. The first section points out who may make a will. It enacts as follows: “Every male person aged twenty-one years or upward, and every female person aged eighteen years and upward, being of sound mind, shall have power, at his or her will or pleasure, by last will and testament, in writing, to devise all the estates, right, title, and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments,” etc. Upon these general words and expressions there is no restraining clause, nothing from which we can infer that the legislature intended anything more or less than is expressed. … What, then, is the meaning of the words “every female person?” Is not a married woman a person? She is, so far that she may be punished for her criminal acts, and why may she not be, so far as to make a will? She labors, it is true, under many disabilities, but it is within the power of the legislature to remove those disabilities, and when this power is exercised, it is not the province of this court to correct the procedure. If a married woman is a “female person,” she is authorized by the act of 1808 to make a will, and that she is thus authorized, seems to be clear beyond a doubt, to a majority of the court.9
It added that, “By the act of February 10, 1810, 8 Ohio Stat. 146, the testator is authorized ‘to devise all the estate, right, title, interest in possession, reversion, or remainder which he or she hath, or at the time of his or her death shall have, in or to lands, tenements, etc.’ This was the statute in force at the time Catherine Pegg made her will, and at the time of her decease. No one will deny that a married woman hath an interest in her own land.”10
So, the Court held, “by the statutes of February 10, 1810, a married woman had an unquestionable right to make a will.”11
By deeding the land to their daughters alone, then, Jonas and Sarah gave them a power few women in America had at that time: the right to decide to whom the land would go after their deaths. Their husbands would have had the right to control the property during the marriages, yes, but they didn’t own the land, couldn’t sell the land without their wives’ consent — and couldn’t control where the land would go after their wives’ deaths.12
Land for Ohio’s daughters. And a first step towards women’s rights.
- Auglaize County, Ohio, Deed Book 1: 27, Haney to McCoy, 28 March 1840; Auglaize County courthouse, Wapakoneta; FHL microfilm 914113. ↩
- William Blackstone, Commentaries on the Laws of England, Book I: The Rights of Persons (Oxford, England: Clarendon Press, 1765), 430; digital images, Google Books (http://books.google.com : accessed 7 Sep 2015). ↩
- Ibid., 432. ↩
- James Kent, Commentaries on American Law, 13th ed. (Boston: Little, Brown, 1884), 2: 130. ↩
- §22-26, Chapter 31, “Husband and Wife,” in V.E. Howard and A. Hutchinson, compilers, Statutes of the State of Mississippi (New Orleans: E. Johns & Co., 1840), 332; digital images, Google Books (http://books.google.com : accessed 7 Sep 2015). ↩
- “An Act concerning the rights and liabilities of married women,” Ohio Laws of 1861, chapter 71, in J.R. Sayler, editor, The Statutes of the State of Ohio…, 4 vols. (Cincinnati: Robert Clarke & Co., 1876), I: 63-66; digital images, Google Books (http://books.google.com : accessed 7 Sep 2015). See also “First Women’s Rights Movement,” Ohio History Central (http://www.ohiohistorycentral.org/ : accessed 7 Sep 2015). ↩
- Allen v. Little, 5 Ohio 66 (1831). ↩
- Ibid. at 67. ↩
- Ibid. at 70-71. ↩
- Ibid. at 68. ↩
- Ibid. at 72. ↩
- They may well have had curtesy rights — a life estate in the lands — if they survived their wives and their wives had borne them children. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 311, “curtesy.” But they wouldn’t have owned the land. ↩