Kolls v. De Leyer

17 Abb. Pr. 312, 41 Barb. 208, 26 How. Pr. 468

• Court: New York Supreme Court
• Decided: March 15, 1864
• Status: Published

Opinion

By the Court.

*—Brown, J.

This is a demurrer to the plaintiff’s complaint. The causes of demurrer are very numerous, and all of them but one very frivolous.

The defendant is a married woman, having a separate estate of her own. Prior to the 1st day of February, 1858, and since the passage of the acts in regard to married women, and giving them the right to acquire, hold, use, grant, and convey real property, the same as femes sole, she acquired by purchase a lot of ground in the twelfth ward in the city of Brooklyn, the title to which she held in fee in her own right. On the 15th day of February, in the same year, being so seized of the said lot of ground, she conveyed the same to the plaintiff by the usual deed of conveyance, with covenants of seizin, and that the same were free from incumbrances of every description. There has been a breach of the last of these covenants, the estate at the time being incumbered with certain taxes, which the grantee (the plaintiff) has been compelled to pay to save the estate from sale, &c. All these facts appear by the complaint.

The question raised by the demurrer is, whether the duty, debt, or obligation created by the covenants in the deed were directly beneficial to' the estate of the grantor. This cannot be a debatable point. It is too plain, I think, for argument. The obvious effect of the covenants in a deed of conveyance is to assure the title and enlarge the purchase-money. Ko one doubts that the reason why the grantee demands, and the grantor makes these covenants, is to afford the former a complete indemnity to the extent of the purchase-money, should the title fail. This duty, assumed by the grantor under the contract, may be, and often is, the principal inducement to the purchase. It enlarges the purchase-money, and thus to an extent more or less is clearly for the benefit of the estate of the grantor. It may be said, although the remark is not necessary to the decision of the demurrer, that covenants of warranty, seizin, quiet enjoyment, are incident to, and usually attend upon, conveyances of real estate; and in the absence of all limitation and restraint upon the power of a married woman, the Legislature, when conferring the right to acquire, use, grant, devise, and convey real property in the same manner as femes sole, must have intended conveyances in the usual manner, and with the usual covenants, to assure-the title.

The order overruling the demurrer should be affirmed, with costs.

Present, Brown, P. J., Lora and ScrüQSam, JJ.