3 Paige Ch. 117 | New York Court of Chancery | 1831
The defendant executed and acknowledged a conveyance of the premises in question to G. W. McLean and others as trustees, to sell the same and the other real estate mentioned therein, for the payment of the debts of her husband. At the time this conveyance was executed the defendant was an infant. And she alleges that she executed it in the absence of her husband, who was confined on the jail limits; that she had at the time no knowledge of her legal rights; and that she was told by one of the grantees, at the time of signing and acknowledging the deed, that it would not prejudice her rights. As the cause is heard on bill and answer, this averment is to be taken as true, in every respect; and it shows there is not the least shadow of equity for setting up this deed against her as a bar. Independent of this fact, however, the conveyance by this infant feme covert was clearly void, notwithstanding it was acknowledged by her apart from her husband, in the form prescribed by the statute. There are some cases in which an infant may be equitably bound by a marriage contract and settlement, entered into with the consent of her parents or friends. But she will not be bound in such cases, unless she could in some way be benefitted by the contract. It is at least questionable whether she can in that case make any binding contract as to her real estate. After the marriage, however, it is clearly settled that an infant feme covert cannot bind herself by any deed or contract, either at law or in equity, except under the sanction of the court of chancery, or in the cases provided for by the statute. In Hearle v. Greenbank, (1 Ves. sen. 299,) Lord Hardwicke decided that an infant feme covert could not execute a power as to her separate estate, although she would have had the right, notwithstanding the coverture, had she been an adult. And in a recent case, Sir John Leach decided that a contract made by an infant feme covert and her husband, although her father entered into the contract also and it was apparently for her benefit, was a mere nullity as against the wife. (Stamper v. Barker, 5 Mad. R. 157.) The statute, which makes valid the deed of a feme covert when executed with her husband and acknowledged by her on a private examination, was nev
I do not see from this answer that the defendant has done any thing since the death of her husband to sanction this conveyance, or to mislead the complainant. The mere delay, for a year or two, to institute a suit for her dower cannot bar her right, either at law or in equity. Neither has the complainant showed any thing to entitle him to be subrogated in the place of those judgment creditors whose liens on the property overreached the marriage. If the complainant had actually advanced the money to pay off those judgments, it is doubtful whether he would have been equitably entitled to be substituted in their place without some conventional arrangement, to that effect, with those creditors. It is only in cases where the person advancing money, to pay the debt of a third party, stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor, as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished. Such also is the rule of the civil law; although by that law a surety paying the debt is subrogated to the rights of the creditor ipso facto. (Curtis v. Kitchen,
The defendant’s counsel supposed that this court, having the whole case before it, might proceed to the assignment of the dower. But I do not understand that to be the usual practice of the court in such cases. Dismissing the bill upon the merits, in this stage of the suit, will undoubtedly settle the rights of the parties conclusively as to all the questions which this court has now been called on to decide. But the injunction must be dissolved; and the defendant may then proceed and enforce her rights in the suit at law. The decree will declare, that as it appears, from the pleadings in this cause, that the defendant was an infant at the time she executed and acknowledged the conveyance of the 12th of June, 1823, to the trustees, and as she has never since ratified the same, it was void as against her. That she is neither legally or equitably barred of her dower in the house and lot in the city of New-York in the biH mentioned, but is entitled to the same ; and therefore that the injunction be dissolved, and the complainant’s bill be dismissed, with costs.