13 Wend. 524 | N.Y. Sup. Ct. | 1835
By the Court,
The objection to the plaintiff’s recovery, on the ground of the alienage of their father, John Ritchie, is now removed, by the production of the record of his naturalization, which took place on the 13th day of April, 1810. Record evidence of a fact imperfectly proved at the trial may be exhibited, on the argument of the case, in opposition to a motion for a new trial; such evidence being in its nature incontrovertible, it would be idle to send the cause down to a new trial, for the purpose of taking it. The practice of the court, in this respect, is well settled.
It need not appear by the recor.l that all the’ preliminanr requisites to a naturalization were complied with. The judgment of the court, admitting the alien to become a citizen, is conclusive evidence upon that point. 7 Cranch, 420.
The mother of the piainfifls was entitled to be their guardian in socage ; but there is no evidence that she ever acted in that capacity. In assigning the lease in question, she professed to act as administratrix of her husband, and not as guardian of his chi'dren ; she must therefore be considered as having acted in that capacity. As administratrix she had no control over the real estate of her husband; that descended to his children. The lease in question was a freehold estate, which she had no power to alien or encumber. Her assignment, therefore, passed nothing to the defendant which belonged to her children.
Nor did the defendant acquire, under that assignment, the widow’s right of dower. A widow, before her dower is assigned to her, cannot convey an interest in the land to which she had a right of dower : it is a mere right of action, which cannot be conveyed or assigned. 10 Wendell, 414, 528.
The defendant having shown, affirmatively, that he entered upon the premises, and had held them under this assign
New trial denied.
