Constantine v. Van Winkle

Headnote

Though by an ancient usage in the colony of New-York, existing independent of any statute, a feme covert might, in conjunction with her husband, convey her interest in real estate by deed, without resorting to the common law mode of fine and recovery, yet to render tile,deed operative, an acknowledgment of its execution on her part was always essential.

Accordingly held, in this case, that the deed of a feme covert and her husband, executed in New-Jersey in 1760, which she had never acknowledged in any form, was inoperative as to those claiming under her.

On error from the superior court of the city of New-York. The action below was ejectment by Van Winkle against Constantine, to recover an undivided share of certain premises in said city, known as lot No. 182, Fulton street. The case came here upon a bill of exceptions taken at the trial, presenting a great number of questions, among which was this: Constantine claimed title through a deed executed in New-Jersey on the 5th of May, 1760, by John Van Winkle and Jane his wife, both of whom died several years before this suit was brought. At the date of this deed the lot in question belonged to the wife in her own right—the husband having no other interest than that of a mere tenant by the curtesy. It did not appear that the deed had ever been acknowledged by the wife in any form; and therefore the plaintiff below, who claimed by descent from her, objected that her interest remained unaffected by it. The court below allowed the objection, and the defendant there excepted.