76 N.Y. 262 | NY | 1879
By deed dated September 22, 1865, one Clarissa Smith (the mother of the defendant Cordelia) conveyed a portion of the premises described in the complaint in this action to Samuel Daily and Cordelia Daily, and on the first day of April, 1870, Samuel Daily executed and delivered to Cordelia a deed, purporting to convey to her, in consideration of $1,500 (the receipt of which he acknowledged), the premises above referred to with another parcel of ten acres, "and all his right and interest in the personal property then or thereafter to be placed on the premises," and on the same day Cordelia executed and delivered to Samuel Daily *265 the bond and mortgage in question, to secure the payment of $1,000, part of the purchase-money of the premises described therein. During the life of Samuel, the defendant Cordelia, by payments at various times, reduced the amount secured, so that at the time of the trial there was unpaid only the sum of $500 and interest from January 2, 1873. Samuel Daily died in September, 1872, and this action is brought by the administrator of his estate. A variety of defenses were set up, and among others it was alleged, that at the time of these various transactions, Cordelia and Samuel were husband and wife. The trial court considered the defense valid and dismissed the complaint.
The deed from Clarissa Smith to Samuel Daily and Cordelia Daily was, for a consideration, found by the trial court to be good and valuable, stated in the deed to have been $1,000, paid by the grantees, and which as the undisputed evidence shows moved from each. The deed as the trial court found, and as appears from the instrument itself, contains no statement as to the manner in which the grantees should hold the lands described in it.
Upon this state of facts it is plain that the grantees became tenants in common of the premises, for the statute expressly provides that every estate granted to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy. (1 R.S., pt. 2, tit. 2, art. 2, § 44.) And from this it would follow that the deed from Samuel Daily to Cordelia Daily conveying as it does his interest in the lands would furnish an abundant consideration for the bond and mortgage. In addition to that however his deed conveys to her ten acres of other lands, the whole of which for aught that appears he owned individually. The value of the lands conveyed is not found but there is no reason for assuming that it was less than the sum stated in the deed. (Jackson v McChesney, 7 Cow., 360; Wood v. Chapin,
At the time of the execution of the deed from Clarissa Smith to Samuel Daily and Cordelia Daily, the statutes of 1848 and 1849, for the more effectual protection of the property of married women, and those of subsequent years, 1860-1862, concerning the rights and liabilities of husband and wife, were in force.
By that of 1848 chapter 200 as amended in 1849, chapter
375, any married female may take by grant, etc., from any person other than her husband and hold to her sole and separate use real and personal property and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts; — it was argued however that inasmuch as an unmarried woman never could convey to her husband — she having none (White v. Wager,
In the case of Matteson v. The N.Y. Central RailroadCompany (62 Barb., 373), Judge MULLIN, delivering the opinion of the General Term, says: "The husband and the wife are for all legal purposes no longer one person." And *268 the construction which led to this general observation has been applied in so many cases that the conclusion arrived at in the case before us may be deemed well supported by authority.
In Power v. Lester (17 How. Pr., 413; S.C. on appeal,
The various cases cited by the learned counsel for the respondent, in support of the decision of the court below, have not been overlooked. Those earlier than the statutes referred to have no application, if the rule of the common law has been changed by legislation. Torrey v. Torrey (
In Beach v. Hollister (3 Hun, 519), the same question was before the court and very summarily disposed of by a divided court, the majority, by GILBERT, J., saying: "These statutes operate only upon property which is exclusively the wife's, and were not intended to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly," and citing the cases of Goelet v.Gori; Farmers' Bank v. Gregory, above referred to, andFreeman v. Barber (3 T. C., 574). This case was decided by the Supreme Court of the Third Department, on the strength ofGoelet v. Gori and F.M. Nat. Bk. v. Gregory, the court saying. "The question now raised must be considered resadjudicata." It will be seen then that so far as authority goes it all rests upon the Special Term case of Goelet v. Gori. I have been able to find no reason for its support.
If this view is correct, then by the deed from Clarissa Smith to Cordelia Daily and Samuel Daily, each became tenant in common with the other, and as such each had a valuable interest which could be conveyed, and therefore the deed from Samuel Daily to Cordelia Daily did convey an estate or interest of value, and supports as by a good and valuable consideration the mortgage, unless by the same rule of the common law the deed is wholly invalid by reason of the marital relation existing between the parties. It may be conceded that this would be so in law where neither husband nor wife could take from the other, any more, as the books *271
say, "than a monk who is dead in law and considered as no person." And so the court held as early as 1794, when in Firehason the demise of Jane Symes, widow, v. Pennant (2 Wilson, 254), the Kings's Court at Westminster considered whether a grant "by a lord of a manor to his wife be good in law or not." The question was thought quite new and although the trial was postponed to enable counsel to search for authority none could be cited "to show whether such a grant was good or bad," and the court reluctantly held that it was not good, and gave judgment for the defendant, and so it has been to this day; but the doctrine is very technical and has been easily and frequently evaded, and during the same period it has been as uniformly held that such a conveyance may be sustained in equity, where the wife has been regarded as a person having a separate existence, separate rights and a capability of holding separate property; and unless wholly without consideration a conveyance defective in consequence of the common law rule is upheld. (Shepard v.Shepard, 7 John. Chy., 57; Hunt v. Johnson,
The same result will follow even if the deed from Clarissa Smith to Samuel Daily and Cordelia Daily did not make them tenants in common. If, as the court below held, they, *272 by virtue of it became tenants of the entirety, then by the common law Samuel Daily had the right to alienate in fee his share subject only to the wife's right of survivorship and the further right to sell, lease or mortgage the entire property for the joint lien of himself and his wife (Grute v. Locroft, Cro. Eliz., 287; Barber v. Harris, 15 Wend., 616; Jackson v. McConnell, 19 id., 175) he had also the right to the possession of the property during the same time, and to the receipt of the rents and profits thereof — and all this he might do without his wife's consent, and even in spite of her opposition; or with her consent, she joining in the conveyance, give to any one a title in fee, — indeed if they had conveyed to a third person although expressly for the purpose of having that third person convey to her, her title so obtained would be good in law and equity, and this would be so although in the deed it had been written that the sole purpose of such conveyance was to vest in the wife a title in fee simple. No one attacks her title now — no one has disputed her right under the deed, or to the possession and enjoyment of the premises — the annual use of which is conceded to be $125. This she acquired by the deed. It was valid and efficient for that purpose. (Sheldon v. Clancy, 61 Barb., 475; Jaques v. Methodist Episcopal Church, 17 Johns., 548.) But for this use no allowance has been made, and to what extent, if not to the full sum stated in the bond and mortgage, she should be required to pay, can be better determined upon another trial.
It was also found by the trial court "that the consideration of the mortgage was in part the price of personal property transferred by Samuel Daily, and that the mortgage was valid to the extent of its value, but it is also found that besides interest, an amount has been paid upon the mortgage greater than this value, and that the payments should be so applied rather than on the price of the land." This finding was excepted to. I have carefully examined the evidence and am unable to find any in regard to the items of personal property transferred at the time of the execution of *273 the deed or placed on the farm afterwards except a general description — and I find no evidence as to its value. There is testimony concerning personal property sold by Samuel Daily from the farm and the price it brought, but this was in 1871, and has no tendency to show what or how much personal property the defendant received by virtue of the deed, or to what extent it formed the consideration of the mortgage. The exception, therefore, was well taken.
It is however objected by the respondent's counsel that the acknowledgement of the mortgage by Mrs. Daily is insufficient, because the certificate does not show that it was taken separate and apart from her husband, and executed without fear or control, and the General Term having come to the conclusion, on other grounds, that the complaint should be dismissed, decline to pass upon that objection; but whatever its merits may be, it is not available to the defendant, for the complaint alleges that the defendant did "duly acknowledge and deliver the mortgage;" and this the defendant not only does not deny, but expressly admits by her answer. The allegation, must, therefore, be taken as true.
The judgment should be reversed and a new trial granted, with costs to abide the event.
RAPALLO, and MILLER, JJ., concur; CHURCH, CH. J., FOLGER, ANDREWS and EARL, JJ., concur in result on last ground stated in opinion.
Judgment reversed. *274