7 Barb. 633 | N.Y. Sup. Ct. | 1850
This is a suit for dower, and the defence is that in 1811 the lands in which dower is claimed were exchanged by the husband of the plaintiff, with one Bud-long under whom the defendant holds, for another farm of 75 acres, and that the defendant did not within one year after the death of her husband make her election to take her dower in the lands given in exchange. It is conceded that she made no election within the year; and it follows, therefore, that if these lands were exchanged, within the legal meaning of the term, the plaintiff can not recover. (1 R, S. 740, § 3. Rev. note to this section, 3 Id. 596. 4 Kent, 59.)
But the plaintiff denies that an exchange, in the legal sense of the term, took place. An exchange is. defined by Blackstone to be “ a mutual grant of equal interests, the one in consideration of the other.” “ The estates exchanged,” h.e adds, “ must be equal in quantity; not of value, for that is immaterial, but of interest; as fee simple for fee simple, a lease for twenty years for a lease for twenty years, and the like.” (2 Bl. Com. 323, and cases cited in the notes.) The same rule is laid down in 1 Hil. Abr. 70, § 2; Id. 310, 311. It was suggested on the argument, that the word as used in our statute ought to receive a more
(1.) There was no exchange of equal interests. It was not even an exchange of land for land. If the rule is to prevail, where half of the consideration, as here, consists of money or personal property, the other half being land, it may also prevail when a thousand acres of land are exchanged for a single acre of land and nine thousand dollars in money. This was not therefore “ a mutual grant of equal interests, the one in consideration of the other.”
(2.) No legal title has ever been conveyed, of the 75 acres. The assignment of John Rhoades to John Budlong of a lease in perpetuity, subject to the condition of paying a stipulated rent, without seal, conveyed no legal title. The cases of Jackson v. Wendell, (12 John. 355,) and Jackson v. Wood, (Id. 73,) are conclusive on this point. Again; the title to the premises, if the assignment had conveyed it to John Budlong, descended to his heirs, and could not be conveyed by his executors unless under a legal power contained in the will of John Budlong, of which there is no proof. Nothing therefore but an equitable interest—a mere right to compel a legal conveyance—ever passed to Wilcox. A transfer of a mere equitable interest in 75 acres of land, for 11 acres and $700 in other property, cannot satisfy the requirements necessary to constitute a legal exchange. Again; it may be added that neither the assignment of the executors of John Budlong to Wilcox, nor the undelivered and cancelled deed of John Budlong, bearing date the 18th of April, 1811, purports to have been made upon an exchange of lands.
A suggestion whs made on the argument, that a conveyance
There must be a new trial; costs to abide the event.