Meriam v. Harsen

2 Barb. Ch. 232

• Court: New York Court of Chancery
• Decided: April 6, 1847
• Status: Published

Opinion

The Chancellor.

There' is nothing: in this case from: which any court could' be authorized to infer*that the deed ef May, 1790, from Jacob'Harsen áfídíhis wife- te GíáBrier Furm an; ■ was obtained by the- husband by any baud or undue* means p or by taking am unconseientious- advantage of her situation;, and of the -confidence- which she reposed: id Mm. It: was not* the cáse- of a fortune-hunter' manying" are heiress,- and them taking" advantage: of her confidence im him;-even during the-honey-moon, to-defraud her of her* property. Although the: property embraced im that deed? has- now'become-of very- great value; it was worth, comparatively, but- little- at" the' time the', deed? wasgivtiti; about'-sixty"years' since. At the time- the parties wereniarried; they were neariyon an equality as-to property. For the wife then hadnothing but an expectancy in ohe-thirdofher deceased father’s estate; after the-death of her mother. And if appears from the statement in-the old" bill in chancery;that the-estate of her deceased father Was-so embarrassed asta be unable to pay the £100," for Which Swanston had-bécome hi's: security, and for which a judgment waS recovered against the widow and? executrix'in 1774. This was-the saíne?debt-which Jacob Harsen was compelled to' páy, on-actitiUrtt of the estate of his father-in-law, With the- accumulated interest and costs, about' twelve' years afterwards; The' death of- her sister, how ever, in 1788, left Mrs. Harsen the sole owner- of that part- of the property of her deceased father to which- the title- was not contested, by the widow and children of her deceased unclé Balaam Johnson. And it was not an uncommon thing, even in those days, where property was thus situated, for the wife to vest the legal title in the husband, by means of a conveyance by the husband and wife to a third person, and a reconveyance by the latter to the husband. These parties had been sixteen years married, at the time of the conveyance of 1790. And the fact that the deeds were put upon record, in the city of New-York, a few months after they were executed, although there was then no law requiring deeds to be recorded, rebuts all presumptions that any fraud or concealment was intended, on the part of the husband. Nor is it true, as alleged in the bill in this case, that it was not generally known that the title to the property was in the husband; or that the wife was ignorant of that fact. Several leases of portions of the property, for terms of twenty-one years, executed by Jacob Harsen alone, were produced in evidence; which mode of leasing is inconsistent with the idea that the lessees supposed the legal title to be in the wife. And leases continued to be executed in that manner, by the husband alone, without being also executed by his wife, down to the time of his death. And in the latter part of his life whein the infirmities of age compelled him to do business at home, many of those leases must have been executed at his residence, when his wife was present. Indeed the complainant herself is the subscribing witness to several of those leases, executed by her grandfather in the years 1823, 1824 and 1825, while she was living with him, and before her marriage. The answers of some of the defendants, responsive to the bill in this respect, as well as the testimony of witnesses on the part of the respondents, show that Mrs. Harsen was aware that the legal title to the property was in her husband. The testimony of the 'ate. General Bogardus renders it almost certain that she was consulted in relation to a will drawn for her husband nearly thirty years before her death, in which the husband made ample provision for her out of property which the complainant now insists.Mrs. Harsen then believed to be her own already. There is very little doubt also, that she must have been consulted by her husband in relation to his last will, in which he appears to have been so solicitous to provide every thing requisite for her comfort and gratification, in case she should survive him. I have no doubt, therefore, that Mrs. Harsen was perfectly aware what she was doing when she joined with her husband in the deed to Furman; for the purpose of having the legal title vested in her husband by a reconveyance to him.

The technical common law rule, that a feme covert cannot make a conveyance to her husband, does not apply to such a conveyance made through the medium of a third person. (Jackson v. Stevens, 16 John. Rep. 110.) In that way she may exercise the same control over her real estate, for his benefit, as she could if it was held by a trustee, with a power on her part to appoint it to whom she pleased. And all that this court allows itself to do in such cases, is to see that the wife has not been imposed upon by the husband’s taking an unconscientious advantage of her situation. (Pybert v. Smith, 1 Ves. jun. Rep. 189. Parkes v. White, 11 Idem, 222. Bradish v. Gibbs, 3 John. Ch. Rep. 523.)

The actual payment of the nominal consideration, expressed in the deed, is not necessary. It is sufficient if it is stated in the deed as the consideration thereof. And as between the parties, where a mere nominal consideration is inserted in a conveyance for the purpose of supporting it, the court ought not to allow proof to be given of the non-payment of such nominal consideration, in order to destroy the deed. (The Bank of the United States v. Houseman, 6 Paige's Rep. 526. Shep. Touch. 222.)

The next question to be considered is, whether the acknow ledgment of the deed was sufficient, as the law then stood, to render it valid as a conveyance by a feme covert. In examining this question, it must be recollected that the rule of the English common law, which disabled a feme covert from conveying her real estate in any other manner than by a fine, or a common recovery, was never in force in this state, either when it was a colony or since. At the least, no such law has been in existence in this state since the colonial act of the 6th of May, 1691, was- rejected- by thdcrownjdn' Í697. (3 R. S. 1st ed. App. 3.) The- act of- the 16th' of February,! 177i;i to'- confirm certain áncieñt coriveyánce3,ándd-irecting. the marine! Of proving deeds-to be recorded, (2 Van Shaack’s Laws of N. Y., 61l,) and all the subsequent státutes ón the■ sdBject, are' merely restrictive of the-right which á féme-covért -possessed; by tliecommrin of customary law of the colony, to convey her estate by deed,? with the- com' currence' of her- husband'. These restfibtive statutes,- which havé beeá revised: and ré-énácted from time to are substantially in the- same words'in- reference to- the acknowledgment- of the wife. The practice of the acknowledging" and recording officers; and' the decisions of the courts,-under atiy of these-statute^ may therefore piopeily be- referred to for the-purpose' of ascertaining tlie practical construction* which has been given to the law on-this subject.

The: act of 1788, (2 Greenl. Laws, 99,) required an acknowledgment;. By the feme' covert; on a private examination, apart- from her husband,, that- she executed the' deed freely, without any fear or compulsion of Her Husband. And the' acknowledging-officer Was- required* td- endorse on- the deéd' a certificóte' of such' acknowledgment,- “ purporting' that- she- had been privately examined;* and' confessed' that" shd executed the same" freely,: without - any fear or compulsion- df- her husband;”" Arid theseIasbwords are copied'from thesecond- section"of- the* act- of the-16tb of February, 1771;. on ¡the" same subject;-- If- a literal cdinpliahce with- the words of- these statutes,- as- to- the-form-of the certificate oftheacknowlédgménthyth'e wife; should' be decided to be necessary a very great - proportion of the" deeds executtedbymarried women, sincé-the-áct-of 1771; would be found' to be invalid! It-has; therefore,: very properly been held;.not only here but in’our- sister states, that a- substantial-compliance with the - requirements of the- statutes,- relative to: .the proof or óelmbwledgmeht df deeds, -was-all- that- wasmecessary ;- and that it is not- necessary thót the- certificate of- the acknowledgment should" be in the precise words.- Used* in the* statute; (Jackson v. Gumaer, 9 Cow. Rep. 552. Langhorne v. Hobson, 4 Leigh’s Rep. 224. Tod v. Baylor, Idem, 498 McConnel v. Reed, 2 Scam. Rep. 371. Sharpe v. Hamilton, 7 Halst. Rep. 109. Brown v. Farran, 3 Ham. Ohio Rep. 151. Skinner v. Fletcher, 1 Ired. Law Rep. 313. Hollingsworth v. McDonald, 2 Harr. & John. Rep. 230.)

"¡The word freely is not found in the certificate of the acknowledgment of the wife in the present case. And the question is, whether the words used in the certificate do not mean the same thing substantially; so that the certificate does in fact purport, or intend to show, that the wife executed the deed freely, or voluntarily. The object of the private examination of the wife, apart from her husband, is to ascertain whether the execution of the deed was her spontaneous act; or whether she was induced to execute it by coercion, or fear of ill usage, or other injury from her husband. It is not necessary that the wife should act without a motive, in the .execution of the deed, or execute it as a mere act of generosity, without any hope .of present or future benefit resulting from it. Nor is the word freely, in the statute, intended to be used in any such sense; but it there means, without constraint, coercion, or fear of injury from tire husband, under whose power and control she is legally supposed to be. I think, therefore, that when Master Ray certified that he examined Mrs. Harsen privately and apart from her husband, as to her execution of the deed in question, and that she acknowledged she executed it without any fear, threat, or compulsion of her husband, his certificate was a substantial compliance with the statute. But even if this would have been a doubtful question originally, the maxim that custom is the best interpreter of the law, (4 Inst. 75,) is applicable .to this case. In deciding upon the statute relative to jointures, in the case of the Earl of Buckinghamshire v. Drury, (2 Eden's Rep. 74,) Lord Mansfield acted upon that principle. He says, “ consider also the usages and transactions of mankind upon it; the object of all laws with regard to real property is quiet and repose. As to practice, there has almost been only one opinion. The greatest conveyancers, the whole profession oí the law,” <fec. Several of the courts in this country have also applied this legal maxim to the construction of statutes relative to the proof and acknowledgment of deeds. (See McKeen v. DeLancey’s Lessee, 5 Cranch, 32; McFerran v. Powers, 1 Serg. & Rawle, 106; and Jackson v. Gumaer, 2 Cowen, 567.)

One of my learned predecessors in this court, in reference to the construction of our statutes, relative to the form of the certificate of acknowledgment, says: From the enactment of this provision concerning the acknowledgment of deeds, in 1797, until this time, certificates of acknowledgment have been made in different forms, and have been expressed in various terms. The most usual form has, I believe, been that which adopts the language of the statute. But various other forms have been used, and certificates, expressed in the language used in this instance, have certainly been very usual in all parts of the state. Certificates like this have been .considered and treated as sufficient during twenty-seven years; and a decision that they are not valid would subvert titles to lands to a very serious extent. They have been held sufficient not merely by recording officers, but by judicial officers who have taken acknowledgments, and have composed their certificates in this form; by judges of the supreme court-, judges of the county courts, masters of this court, and commissioners. This general usage, thus long continued and hitherto unquestioned, has great force; and the practical construction of the law by so many public officers, though not given upon adverse litigation, must still have much of the weight of judicial decision. The construction which considers these certificates as a substantial compliance with the law is liberal, but not violent or unreasonable. This construction has prevailed so extensively, and for so long a period, that it possesses high authority, and to pronounce these certificates void would be a most dangerous innovation. I shall, therefore, in pursuance of the received interpretation of the law, consider the certificate upon which the mortgage to Troup- was registered sufficient, and the mortgage duly registered.” (Troup v. Haight, Hopk. Chan. Rep. 267.)

Nearly every word of this part of the opinion of the late Chancellor Sanford, in Troup v. Haight, is directly applicable to the present case; except that it can hardly be said that the certificates of acknowledgments have been the most usual, by femes covert, in which the language of the statute has been adopted. For of the 660 acknowledgments, embraced m' the respondent’s exhibit No. 34, I believe there is not one in which the language of the statute is adopted throughout; though in most of them equivalent, words are used. And a similar departure, from the precise- language of the statute, will be found in most of the certificates produced on the other side. The only operative part of the certificate, in relation to the acknowledgment of a feme covert, is' that which states what she acknowledged upon her private ex?xmination apart from her husband. For what she acknowledges or admits in his presence is no part of the acknowledgment of the deed, as to her. It will be seen, therefore, by the respondent’s exhibit No. 35, that there are in the records of the city of New-York alone, 261 conveyances, by femes cover- and their husbands, in which the acknowledgment, as to the wife, is in the same form as in the deed of 1790 from Jacob Harsen and. wife to G. Fur-man. I also find, upon examination of the numerous certificates produced by the appellant herself, that in a great portion of them the language is the same, so far as relates to the private acknowledgment of the wife, as it is in the certificate endorsed upon this deed, and in the certificates embraced in exhibit No. 35, on the part of. the respondents. For instance; in four out of the nine certificates, from books 67, 68 and 70, of deeds in the city of New-York, at the commencement of the appellant’s exhibit H. No. 1, the certificate as to the acknowledgment of the feme covert is in this form: “ And the said J. being examined by me privately and apart from her husband, acknowledged she executed the same without any fear, threat, or compulsion of her said husbandwithout any other words to indicate that she acknowledged, on her private examination, that she executed the deed freely or voluntarily. And among the certificates , produced by the respondents, and which are substantially in the same form, there are eight which were drawn by justices of the supreme court, five by Samuel Jones as recorder of the city of New-York, eleven by James Kent as a master in chancery •and about 230 fey J. M. Hughes, John Ray and Jeremiah Lansing, also masters in .chancery. Numerous .titles, of course, ¡depend upon this .practiced .construction, which has been given =.t.o the statutes .on this subject, by high judicial -officers, and others, for ¡the last sixty years. And, in the language .of Chief Justice Tilgfeman, it would be unpardonable to disturb it now, by-a .critical examination of. the words of the statutes. Lhe .vice chancellor, as -well as (.the superior court, was therefore right in supposing that the deed of the 28±h of May, 179.0, was properly executed and acknowledged, so as to .pass the legal title to .the lands mentioned therein, to Gabriel Furman, the grantee in such deed ; except one Undivided fourth .of the lands at Bloomingdale, which were Specifically .devised to Cornelius Gozine the younger, by the will .of his father. And by the reconveyance, from Furman to Jacob Harsen, the latter became entitled- to an estate in fee simple, in his .own right, in all the lands to which Furman .obtained the legal title .under the .deed from Jacob Harsen and wife .to him.

If the will of .Cornelius .Gozine, Ihe-elder, is correctly stated in the bill in chancery, filed in 1794,. aid if the .times .of the respective deaths of Garret Gozine and if his brother Coradius Co-zine, the younger, are truly stated, it is at least doubtful whether Mrs. Harsen was ever entitled to any part of the real estate devised to her uncle Cornelius under the will of her grandfather. For the limitation over, upon the death of any of the devisees without issue, was not to all the other children of the testator; but it was to those of his children who should then be living, Indeed the person who drew the deed of 1790 was probably-aware that the right of Mrs. Harsen to one-fourth of the real estate devised to her.uncle Cornelius was questionable. For in the recitals in that deed it is not stated that Garret Gozine. or bis children, became .entitled, under the will of his father, to one fourth part of the real estate devised to his brother Cornelius. But the recital in-the deed is, that Garret Gozine, under th e will of his father, became entitled to one undivided fart of the Bloomingdale farm and of the'Fair-street lots; without stating whai the extent of that undivided part was, under th e will. Tb e bill in chancery, of 1794, also appears to have been drawn with the same care, in not stating the interest of Garret Cozine, or of Mrs. Harsen, in the one-fifth of the farm, and of the Fair-street lots devised to Cornelius Cozine the younger; though it is stated in that bill that the complainants applied to the widow and children of Balaam Johnson Cozine, and requested them to divide the property into four equal parts. The person who drew the bill appears to have been equally careful not to state what the present rights of Mrs. Harsen were-, in any of the property which had come to her from her father and her brother and sister. Chancellor Lansing, in making his interlocutory decree in that suit, seems to have overlooked the fact that it appeared from the dates, stated in different parts of the bill, that Garret Cozine died about two years before his brother Cornelius. And if this fact was overlooked by the counsel for the defendants, upon the argument of that case, it might well have escaped the vigilance of the court. For I see that in one part of the bill the complainants charge and insist, that if Cornelius Cozine the younger did make a will, as pretended by the defendants, he had no right to devise the real estate which came to him by the will of his father; but that upon his death without issue, the same went to his surviving brothers and sisters, under the provisions of the will of Cornelius Cozine the elder. And in this part of the bill of 1794, Garret Cozine is actually named, as one of those survivors.

There were good reasons for saying nothing, in the bill of 1794, in relation to the deeds of May, 1790, and of the alteration of the rights of Jacob Harsen and his wife in consequence thereof. For as between themselves, they probably considered it as a matter of but little consequence, whether the legal title to their share of the Fair-street lots, and the other lands in dispute in that case, was declared to be in the one or the other. Besides, it appeared by that lull that the twenty acre lot of Cornelius Cozine the younger, at Bloomingdale, was held adversely by the widow and heirs of Balaam Johnson Cozine, in May 1790. The legal title to that lot, therefore, remained in Mrs, Harsen, notwithstanding the deed to Furman and the reconvéyance to her husband. Both Harsen and wife,, then,- were' necessary parties' to that bill, for nearly all of the purposes- for which it was- filed. And it would have been perfectly useless to say any- thing in that bill' about the deeds of 1790 ; or for the defendants in that suit to refer to them in their answers, or in their proofs, even if they knew that such deeds had been executed. The' bill not being sworn to, it was no evidence of any fachas between Harsen and his wife. And the interlocutory decree of the chancellor, as a matter of course, was made in accordance with what he supposed the rights of Harsen and his- wife to be, from the statement of the original title of Mrs. Harsen, in the bill.-

That- decree, so far as it settled the rights of the complainants and defendants in the Fair-street lots, and in the twenty acre lot át Bloomingdale, which was specifically devised to Cornelius CoziAe the younger by the will of his -father, and of which a partition Was directed, might perhaps be considered as settling the rights of all parties as to those particular lands, if the decree should not be' appealed from. But as between Harsen and his wife, and as between their heirs, thére is nothing in that decree which could operate by way of estoppel to prevent them from showing the true state of the title; even as to the twenty acre lot which was specifically devised to Garret Cozine by the will of his father. Much less could any thing in that decree operate as an estoppel in reference to the forty-seven acre- lot at Bloomingdale and the Mott-street lots, which Garret Cozine had acquired by purchase in his lifetime; and which were not mentioned, or even alluded to, in such decree, or in the bill on which it was founded.

Harsen never claimed title to the twenty acre lot, at Bloomingdale, under that decree. But he claimed title to it under the deeds' of May, 1790 ; which title was confirmed to him by the release and quit-claim deed that was obtained, from the heirs of Balaam Johnson Cozine and of his two sisters, under the compromise in February, 1809. The part of the twenty acre lot originally devised to Cornelius Cozine the younger, which was also embraced in that quit-claim deed, was conveyed by Jacob Harsen and his wife to their son Cornelius, by a deed of gift, a few-days after that compromise was completed. And all the Fair-street lots must have been sold, arid the proceeds divided, very soon thereafter. No part then of the property which the decree directed to be partitioned, or which could have been partitioned in that suit, belonged either to Jacob Harsen or his wife at the time of their respective deaths. The title of Jacob Harsen to the property in dispute in the present ease, under the deeds of May, 1790, was therefore in no way impaired by any thing contained in the bill of 1794, or by any thing stated or declared in the interlocutory decree made in that suit.

The validity of the will of Jacob Harsen was not only established before the surrogate, but also upon the trial of the ejectment suit, in the superior court in New-York. And it is only necessary to say, that there is nothing in the testimony in the present case, to induce me to doubt that the testator was perfectly competent to make a will, or that his will was duly executed. The appellant’s unnatural and abusive treatment of her aged grandfather, who had stood in the place of a parent to her, from infancy to womanhood, and who again furnished her a comfortable home when she was separated from her husband, is sufficient to account for the provisions of his will as to her; without the necessity of supposing that his intellect had become impaired so far as to render him incompetent to make a valid will. And the state of the sister’s mind made the provisions of the will discreet and proper as to her. For these reasons, even if this court had jurisdiction of a suit to set aside a will of real estate, the bill in this case was rightfully dismissed; upon the ground that the complainant had wholly failed to sustain the allegations, in her bill, in relation to the validity of the will under which the respondents claimed title to the property in controversy.

The claim of the complainant to a part of the premises conveyed to Jacob Harsen, as a water grant, in October, 1804, and to a part of the moneys received by him, from the corporation of New-York, for the damages sustained by the widening of Mott-street, necessarily falls with the failure of the other claims upon the estate of the testator. It is unnecessary, therefore, tc inquire what would have been her equitable rights in respect to the water lot, or to the money received by her grandfa-. ther for damages, if she had succeeded in showing herself entitled to one-fourth of the real estate in controversy, as one of the heirs at law of her deceased grandmother.

The decree of the vice chancellor must be affirmed, with costs to be paid to the several respondents or their solicitors, or guardians ad litem ; except as to the defendants Pay and wife. And if the executors of the will of Jacob Harsen are not able to collect their costs from the appellant, they are to be at liberty to retain the same out of the personal estate of the testator which has come to their hands as such executors.