Mygatt v. Coe

• Decision Date: 20 April 1897
• Citation: 46 N.E. 949,152 N.Y. 457
• Parties: MYGATT et al. v. COE.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 457

46 N.E. 949

MYGATT et al.

v.COE.

Court of Appeals of New York.

April 20, 1897.

Appeal from supreme court, appellate division, Fifth department.

Action by Sarah Matilda Mygatt and another, trustees, against Edward P. Coe, as ancillary executor. From a judgment of the appellate division (42 N. Y. Supp. 734) reversing judgment for plaintiffs, plaintiffs appeal. Affirmed.

For prior reports of the same case, see 20 N. Y. Supp. 748; 31 N. Y. Supp. 1130; 26 N. E. 611; 36 N. E. 870; 42 N. E. 17.

Bartlett, Haight, and Martin, JJ., dissenting.

Edward M. Grout and Almet F. Jenks, for appellants.

W. S. Cogswell and Joseph H. Choate, for respondent.

O'BRIEN, J.

The question of law in this case has been so fully discussed in this court and in the courts below on former appeals that very little is left to be said that would be pertinent now. A married woman, who had purchased and paid for a piece of real estate, which was conveyed to her, for her sole and separate use, free and clear from any control of her husband, lived in the house for several years with her husband, and on April 12, 1867, supposing that she had a good title, sold the same to one Nancy Fisher, executing a conveyance thereof containing the usual covenants of warranty and quiet enjoyment. In this deed her husband joined,-for what purpose, does not expressly appear. It was, no doubt, a very common occurrence at the time in cases of deeds by married women of their separate real estate. Subsequent events disclosed the fact that the grantors in this deed had no title, and a remote grantee was evicted, under paramount title, on November 30, 1878. The plaintiffs' title and right to maintain this action are derived solely from a mortgage from Mrs. Fisher, which was foreclosed by judgment entered June 5, 1879, and they received the sheriff's deed August 14, 1879. The plaintiffs were never in the actual possession of the land, and were never in fact actually evicted, but they rely upon the eviction of one of Mrs. Fisher's grantees, subject to the mortgage. The covenant of the husband was that his wife, at the time of the grant, was lawfully seised in her own right of the estate granted; that she had good right to convey the premises, full power and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, with the usual covenants of warranty and quiet enjoyment. This covenant, upon its face, was personal; having been made by the husband, who was in law a stranger to the title, with no interest in the land conveyed. It may have been good as an indemnity to the immediate grantee of his wife, who, as covenantee, held and owned it. But in order to make it available to the plaintiffs, who are remote grantees, it must be shown that it was assigned or passed to them. Since it is not claimed that it was ever assigned to them in fact, they must show that it became annexed to the land, and passed to them with the land through the various conveyances from the original covenantee, Mrs. Fisher. That is the question that has always stood in the way of plaintiffs' recovery in this case. Mygatt v. Coe, 147 N. Y. 456, 42 N. E. 17; s. c. 142 N. Y. 78, 36 N. E. 870; and 124 N. Y. 212, 26 N. E. 611. There must be some privity of estate or contract between the covenantor and the party who asserts a right to recover damages for breach of the covenants, and it has been held in this case that possession in the grantor is a sufficient title or estate to carry the covenants down through the line of conveyances to a remote grantee. This doctrine was asserted by Judge Finch when the case was here on a former appeal. 142 N. Y. 78, 36 N. E. 870. The authority cited by him to sustain that proposition illustrates what he evidently meant by the rule. It was the case of Beddoe v. Wadsworth, 21 Wend. 120. That was an action upon a covenant in a deed like the one now under consideration. The grantor and covenantor had no title when he made the conveyance, and it was claimed that, since he never had any interest in the land, the covenant never became annexed to the land, but was broken at the moment the conveyance was made, and it did not pass to the plaintiff, who was a remote grantee. There was a demurrer to the declaration, and the case turned upon facts admitted by the demurrer. The declaration alleged that the grantor had put the grantee into possession of the lands described in the deed, and this fact was admitted by the demurrer. It was held that the delivery of possession of the lands by the grantor to the grantee vested in the latter such an estate as carried the covenants with it; that they thus became annexed to the land, and a part of it, and passed with it to successive grantees. This principle is plainly applicable to Mrs. Coe. When she conveyed to Mrs. Fisher she had no title whatever, but she delivered possession to her grantee, and this was sufficient to attach her covenant to the land, and so it passed with the land to remote grantees. It was her act and her deed that conferred possession and secured enjoyment of the premises to her grantee. She had no other estate, right, or title to the property, through which her covenant could be annexed to the land or pass with it. There is no difficulty in holding that the covenant of the wife was annexed to the land by the delivery of the possession to her grantee. But the plaintiffs' case requires us to go still further, and hold that her husband was also in possession, and delivered such possession to her grantee as attached his covenants to the land and passed them to remote grantees. The basis of this proposition is that the husband had either the sole possession, or a divided possession. Since a married woman may hold real estate in her own right, and may convey the same in like manner as if she were unmarried, there must attach to her title, and accompany it, all the usual incidents and marks of ownership. She holds possession of her lands as completely as if she were a feme sole, and delivers such possession to a purchaser by the same act or instrument as would have been effectual for that purpose before her marriage. If the real estate be a dwelling house in which she resides, the presence of her husband there as the head of the family cannot in the least detract from her full possession and ownership. Her title and possession are consistent with all the rights and duties that arise out of the marital relations. The husband is the head of the family, and, being bound to provide a house for them to live in, the fact that he occupies a house owned by his wite, and pays the taxes on it and keeps it in repair, cannot in the least impair her title to or possession of the property. The wife, by allowing her husband in such cases to pay the taxes, make reparirs, and perform such duties of care and management as are incidental to the occupation of the property and usually grow out of the marital relations, does not surrender her possession, or in any way impair her title. Such acts of the husband can no more affect the possession or title of his wife with respect to her separate real estate than would like acts done by him in regard to the property of a stranger. Any other rule would tend to make the title and possession of a married woman to her separate real estate less secure than that of her husband or a stranger to his property. These considerations suggest the difficulty which the plaintiffs must meet in this case in establishing such a possession in the husband when he joined in his wife's deed as would make his covenant run with the land. We have not been able to find any authority, and we have been referred to none, to sustain the proposition that the husband can become possessed of an interest or estate in his wife's land sufficient to carry his covenants in the wife's deed with the land to remote grantees, as a result of such acts on his part with respect to the property as appear in this case. Of course, it is possible for the wife to surrender the possession or convey the title to her husband, but such a change should be manifested by some unequivocal act on her part plainly indicating her intention to vest some interest in the husband.

When this case was here on the last appeal, we decided two propositions: (1) That the evidence in the record did not sustain the finding that the husband was in such possession at the time he joined in the deed of his wife as would carry his covenant to a remote grantee; (2) that the recital in the deed of the...