p. 402what he would do.” At a subsequent day the parties again met, when Cunningham agreed to convey the 93 acres back to Smith, to satisfy and pay $2875 of the mortgage given to Peter Bush, being the purchase money for that 93 acres. It was stated at every one of these meetings that no money had been paid by Cunningham for the land. At this last meeting Cunningham executed the certificate dated May 3d, 1815. This witness further testified, “ I succeeded my father in the possession of the premises, and sold to David Webb, and Webb sold to William Knight.”
J. Wyman Jones, for the plaintiff.
I. The deed of conveyance from James Cunningham and the complainant, of the 24th of May, 1815, is inoperative and void as against the complainant. An infant/eme covert cannot bind herself, by any deed or contract, either at law or in equity, except under the sanction of the court of chancery, or in cases provided for by the statute. (Jones v. Todd, 2 J. J Marsh. 361 . Sandford v. McLean, 3 Paige, 117, 121.) II. The- proof offered by the defendant, that the mortgage to Peter Bush was given by James Cunningham to secure the purchase money of the land bought of James Smith, is inadmissible; and if admitted, is insufficient to establish the point. 1. The witness Samuel Smith is interested. A release from the defendant does not destroy his liability upon his covenant of warranty. 2. The testimony is introduced to contradict sealed instruments. (Webb v. Rice, 1 Hill, 608 ; S. C. 6 Id. 219. Stevens v. Cooper, 1 John. Ch. 429. 1 Phil. Ev. 564, notes 1429, 1434.) III. The conveyance of 24th of May, 1815, to James Smith, was not made to satisfy the mortgage to Peter Bush. 1. The testimony does not show any thing more than an executory agreement to this effect. 2. This mortgage was satisfied at two different times ; as to á portion, 27th of January, 1816; and as to residue, 26th of April, 1816. IV. The complainant is entitled to her dower, notwithstanding the mortgage to Peter Bush, as against the defendant and all persons except Bush and those claiming under him. (1 R. S. 733, 1st ed. 740, § 4.) James Smith, under
p. 403whom the complainant claims, never was an equitable mortgagee. He took obligations of P. Bush for his share of the mortgage. V. This deed of 24th of May, 1815, reserves and excepts seven acres of this lot, which the defendant admits he is in possession of, but to which he sets up no title whatever; and the complainant’s right to dower in this portion of the farm is therefore undisputed. VI. The two acres which the defendant denies that he is in possession of, is not a part of the seven acres reserved in the deed from the complainant to James Smith. VII. The complainant is entitled to damages for withholding her dower in the seven acres of which her husband died seised. (1 R. S. 734, 1st ed. 742, § 19. Russell v. Austin, 1 Paige, 194.) VIII. The complainant is entitled to costs. 1. The court of chancery has concurrent jurisdiction with courts of law, in suits for assignment of dower. (Badgley v. Bruce & Halsey, 4 Paige, 98. Russell v. Austin, 1 Id. 194.) 2. The complainant was unable to proceed at law, as she could not pay the costs of the former suit commenced without her knowledge or consent. (Swain v. Perine, 5 John. Ch. 488.)John W. Brown, for the defendant.
1. James Cunningham, before his intermarriage with the complainant, having executed a mortgage for the whole of the purchase money, simultaneous with the execution of the deed to him by James Smith, until payment of the amount secured by the mortgage, he had no such seisin as would entitle the complainant to her dower. (Stow v. Tift, 15 John. Rep. 459 . Jackson v. Dewit, 6 Cowen, 316. 4 Kent’s Com. 44, 45.) 2. By the agreement, James Smith was to continue in the possession of the premises until Cunningham paid the purchase money. The mortgage to Peter Bush to secure the payment of the purchase money, coupled with Bush’s interest in the premises, and the agreement that Smith should retain the possession, was to all intents and purposes a mortgage to James Smith. 3. James Cunningham obtained the possession for two or three weeks by a forcible entry, and in violation of the agreement. He therefore never was in the lawful or rightful possession of the property, and the con-There can be no doubt of the correctness of the position contained in the plaintiff’s first point, that the deed of the 24th of May, 1815, having been executed by the plaintiff when an infant feme covert, does not bind or affect her, by virtue of such execution. The first question to be considered, therefore, is whether the testimony of the witness Samuel Smith was inadmissible, on the ground of interest, as contended for by the plaintiff’s counsel. No objection was made before the examiner, to the testimony on this ground. Notwithstanding that, however, a release from the defendant to the witness was executed. But the counsel insists that the interest was of such a nature that it could not be released, and that, therefore, the
p. 405objection may be raised at the hearing. The fact upon which the objection rests is, that the witness conveyed the premises by warranty deed to David Webb, who in like manner conveyed to the defendant. From this fact it is argued that Webb is liable on his covenant to the defendant, and that the witness is liable over to Webb, in case the plaintiff should recover in this suit; and that the defendant’s release cannot discharge the witness from his liability to Webb. The answer to this proposition is, that it is sufficient, if at the time of testifying the witness is disinterested ; and it is not a question, whether tie may, by possibility, or in the course of events, become interested. I am also inclined to think that the release would be a defence of which Webb could avail himself in an action by the defendant. It is further contended that the covenant runs with the land, and that therefore the witness must be liable to any person who may at any time come in, as immediate grantee of the defendant, or by subsequent conveyances. To this objection the answer is, that the covenant runs with the land so long as it remains unbroken. When it is broken by an eviction of the purchaser or his assignee, a right of action accrues to him to recover the consideration money and interest. (Kane v. Sanger, 14 John. 89 . Withy v. Mumford, 5 Cowen, 137.) It then takes the character of a chose in action, and can be released by the covenantee or his assignee. At the time of giving the release the defendant had a contingent right of action against the witness. If he should be evicted by the result of this suit, that right would become absolute, and would be forever discharged by this release. The covenant could never pass to any subsequent purchaser. If, however the recovery should be in favor of the defendant in this suit, then the witness would probably remain liable on his covenant, to subsequent owners : but that very liability would rather tend to interest him against the defendant, inasmuch as a recovery against the defendant, after the giving of the release, could not affect the witness injuriously, but would forever terminate his liability. This question has been twice decided in the supreme court of Connecticut. In the case of Abby v. Goodrich, ( 3 Day, 433 ,)
p. 406the court held that the interest could not be released. But in
Clark v. Johnson, ( 5
Day, 373 ,) the precise point was determined in favor of the competency of the witness. The case of
Ford v.
Wadsworth, (
19 Wend. 334 ,) involved the same principle. In that case Beach conveyed to Rowley with covenants for quiet enjoyment: Rowley conveyed to the wife of the defendant. On the trial, the defendant offered Beach as a witness, who being objected to, the defendant executed a release. The circuit judge still rejected him. The supreme court held that the release was sufficient to remove the incompetency, and, on that and other grounds, ordered a new trial.
The testimony of Samuel Smith being admitted, I think it establishes, in connection with the documentary evidence, the fact, that the mortgage was given to Peter Bush for the purchase money, and that the reconveyance by Cunningham, on the 24th of May, 1815, was given and received in satisfaction of the mortgagee’s debt, to the amount of $2875., The deed and mortgage being acknowledged and recorded at the same time, raisej of themselves, a presumption that they were simultaneous acts, and that the latter was given for the purchase money, although given to Bush instead of Smith. (Kettle v. Van Dyck, 1 Sandf. Ch. Rep. 76.) These facts raise the next question : Whether James Cunningham had such a seisin of the premises as would entitle the plaintiff to her dower. Upon this point the authorities are full and conclusive. Kent in his commentaries, (4 Kent, 45,) lays down the rule thus: “ If the mortgage was executed on a purchase before marriage, and the husband releases the equity after the marriage, the wife’s right of dower is entirely gone: for it never attached, as the mortgage was executed immediately on receiving the purchaser’s deed.” The case of Jackson v. Dewitt, (6 Cowen, 316,) is precisely in point. There Bruyn conveyed to Depuy, and took back a mortgage for the purchase money. Depuy then married Catharine Bevier. Depuy afterwards reconveyed to Bruyn for the moneys due on the mortgage. Hixon, the lessor of the plaintiff, derived title by several mesne conveyances from Bruyn. After Depuy’s death, dower was assigned to his widow by the surrogate. She
p. 407brought ejectment in the supreme court and recovered against Hixon. ( 17
John. 123 .) Dewitt was in possession as her tenant. The court held that the widow was not entitled to dower; upon the ground that the husband had an instantaneous seisin only, and therefore the widow was never entitled to dower, and accordingly ordered judgment for the plaintiff.
(See also Stow v. Tifft, 15
John. 458 .) The case of
Jackson v.
Dewitt is not to be distinguished from the present. It is proper, however, to notice one or two other points taken by the plaintiff’s counsel on the argument.
1. He contends that under the statute (1 R. S. 740, § 4,) the widow is entitled to dower as against every other person, except the mortgagee and his assigns; and that therefore the defendant, claiming under Smith, cannot avail himself of this defence, as the mortgage was given to Bush. That statute does not change the law, nor is it applicable to the case of a mortgage for the purchase money. I think, however, in Smith must be regarded as the real mortgagee. The 1= sold by him, and the mortgage, by his direction, taken by Bush. The property was reconveyed to Smith in tion of the mortgage, and the mortgage cancelled on the s of that conveyance. 2. It is contended that the defend his answer, admits himself in possession of the whole 100: while the deed to Smith conveys but 93 acres. But I find on examining the pleadings, that the bill charges that Cunningham conveyed to Smith, with certain reservations, the whole 100 acres. This the answer admits. The fact is thus established that the whole 100 acres were reconveyed to Smith with certain reservations. Now although when produced the deed shows an exception of seven acres, the plaintiff cannot avail herself of that discrepancy, as there is a material difference between an exception and a reservation. An exception is something taken out of that which is before granted, by which means it does not pass by the grant, but is severed from the estate granted. A reservation is something issuing out of the thing granted, and not a part of the thing granted. (Cruise’s Dig. tit. 32, Deed, ch. 3) In Shepherd’s Touchstone the distinction
p. 408is thus made:
“ This [a reservation] doth differ from an exception, which is ever of part of the thing granted, and of a thing
in esse at the time, but this is of a thing newly created or reserved out of a thing demised that was not
in esse before; so that this doth always reserve that which was not before, or abridge the tenure of that which was before.”
(See also 4
Kent’s Com. 468.) The defendant has doubtless been drawn into the mistake of admitting more than he intended, and more than is true, by the want of precision in the language of the bill.
Again; there is another fatal objection to this part of the plaintiff’s argument. If the exception in the deed is considered it excepts seven acres “ this day conveyed by James Cunningham to William Bush.” The evidence in this case, I think, fully warrants the conclusion, that the conveyance of these seven acres to William Bush, of which this recital is evidence binding the plaintiff, (Cowen Hill’s Notes, 160,) was in satisfaction of that part of the mortgage moneys due to Peter Bush. In this view of the case the plaintiff could not be entitled to dower in the seven acres, whether they were in the defendant’s possession or not.
Upon the whole, I think the plaintiff has failed to make out a case entitling her to dower, in any part of the premises. The bill must be dismissed with costs.