Doe ex dem. De Peyster v. Howland

8 Cow. 277

Opinion

Curia, per Savage, Oh. J.

Husband and wife holding lands by a conveyance to them, are not joint tenants. They are seised per tout, but not per mi. They are each owner of the whole, but not of the half. They must both join in a conveyance. They are both necessary to make one grantor; and the deed of either without the other is merely void.

[1] The deed from Oharlton and wife, was signed by both; but as no interest in lands can be conveyed under our statute, by afeme covert, without the proper official acknowledgment; the signing and sealing, and ordinary acknowledgment before the witnesses, are of no effect, and convey no title.

At the death of Charlton, therefore, the whole estate in the premises in question became vested, by right of survivorship, in Mrs. Oharlton. Thus far the counsel on both sides agree. Of this Mrs. Charlton was apprised while she was sole owner. What she subsequently did, was done with the intention of effectuating the object of her husband’s will. She then, when sole, acknowledged that when she executed the deed to Mr. Munro, while .covert, she acted freely, and without any threats or compulsion of her husband, Upon the effect of this acknowledgment, the counsel differ widely. The plaintiff’s counsel contend thaf nothing passed by it; that it was not competent for lyirs. Charlton to convey her estate but in the ordinary forms of conveyance. The defendant’s counsel contends that the acknowledgment related to the date of the .deed, and confirmed every tiding which had been done; the deed, the lease to Eoosevelt, and the will of Charlton.

If, indeed, this acknowledgment was void, and passed no estate, then Mrs. Charlton was seised at her death, and the plaintiff must recover, unless, by her acfs, she was estopped from asserting her title. But why should a deliberate act of this kind, by a person competent to *convey, be inoperative and void? The instrument contains, upon its face, every thing necessary to a perfect conveyance, She is described, indeed, as a feme covert; and he^ husband is a party with her; but there is no question as to the identity of the grantor. There is, perhaps, a false description, and a person inserted as grantor, not in esse, when she acknowledges the deed. But it is still her act and her conveyance. It is sufficient for transferring all her interest to the grantee for the purposes expressed. It cannot be denied, that after the death of her husband, when she became sole owner, she alone might have conveyed the premises to Mr. Munro, Then, does the name of her deceased husband vitiate her deed? Surely not. It is merely surplusage. It has no effect whatever. Suppose a sole owner of a lot of land draws a deed conveying his land-upon sufficient consideration, and in due form; and three or four names are inserted in the body of the deed as grantors, but no one signs except the owner; can he reclaim the land which lie has thus conyeyed, on the ground that the other grantors did not convey; or can a feme sole avoid her deed by describing herself as a feme covert ? Clearly not. On what ground is it, then, that the acknowledgment by Mrs. Chariton, after the death of her husband, is not a perfect execution of the deed. It is very clear to my mind, that this got of Charlton amounted to a conveyance of her interest in the premises. Whether her execution of the conveyance had relation back to the time of the original execution by her and her husband, or whether it operated as a conveyance in prcecenti, it seems to me, cannot be very material to the lessors of the plaintiff. If it related back, then the conveyance from Mr. Munro to Charlton is supported. Charlton’s will thus becomes operative, and then, it is contended, that Mrs. Charlton took a fee under the will.

It is undoubtedly true, that a devise with power to convey in fee, carries a fee; though a devise with power to devise in fee, carries but a life estate. But the intention of the testator is always a cardinal point in construing *wills; and in this case that intention is not left to construction.

It is explicitly expressed. An estate for life, and no greater, is given ; and as to the lots in question, the wife had no power to sell. All her acts were in affirmance of the will. She received rent on the lease to Roosevelt.

On the question of relation, I cannot accede to the position of the defendant’s counsel. In all cases where a subsequent act is held to relate back to a thing antecedent, there must be something to which relation may be had, something inchoate, imperfect; but still something.

I shall not go into an examination of the cases; but I think I hazard nothing in the assertion, that in none of them was relation had to a void act. In Jackson v. Stevens, (16 John. 110,) Spencer, justice, speaking of a deed, executed by a feme covert, under similar circumstances, says, “ It is contended, however, that the acknowledgment of the deed Vy Mrs. B. in October, 1814, related back to the date of the leed, (it was dated in 1795,) and rendered it valid from the ^ginning. But although she signed and sealed the instrument, it was not her deed, until she had acknowledged it according to the statute. It could not bind her as a contract. She was not confirming an inchoate and imperfect agreement. The deed took its efficacy from the period of her acknowledgment, and there was nothing prior, to which it could relate.” This seems to me an authority in point. The deed of Mrs. Charlton, then, took effect from its acknowledgment. What was that effect ? It convéyed all her interest to Mr. Munro, for certain purposes expressed in the deed itself. Whether the trusts in that deed can be executed according to its letter or spirit, or whether they can be enforced at all, are considerations with which we have nothing to do in a court of law. It is the legal title which we are pursuing, and have traced to Mr. Munro. It is, perhaps, unnecessary to pursue it farther. If it remains in Mr. Munro, it is not in the lessors of the plaintiff. If the doctrine of relation or of estoppel is applicable, so far as to '^confirm the deed of Mr. Munro to Charlton, then it supports the will; and I have already attempted to show that, in that view, the fee cannot be in the lessors. If the estate, upon the doctrine of relation or estoppel, vested in Charlton’s heirs by virtue of the conveyance or acknowledgment of Mrs Charlton, then it is out of. the lessors. So that, in any view of the subject which I can take, the plaintiff cannot recover.

There were many questions discussed on the argument with great learning and ability; but, if I am correct in giving effect to the acknowledgment as of the date of the transaction, then any further examination becomes useless.

I am of opinion that the defendant is entitled to judgment.

Judgment for the defendant.

See Jackson v. M'Connell, 19 Wendell, 115; Barber v. Harris, 15 Wendell, 615; N. Y. Dig., vol. 2, tit. husband and wife.