Jackson, ex dem. Clowes v. Vanderheyden — 17 Johns. 167

Majority

p. 140

*Jackson, ex dem. Clowes, against Catharine Vanderheyden.

Headnote

A feme covert herself petSl ally by a cove-during"the coví erture.

deec|leexecuted by husband and nánt’ofwarranty, does not in^n'6action of ejecimeut ter^he death of her husband, a°™ibseq«luiy inlee fands. e Sam°

The right to dower rests in action only, and cannot be so aliened as to enable the grantee to bring an action in his own name.

Dower cannot be recovered, in an action of ejectment, until been assigned.

Farol evidence is inadmissible to show that an execution, on which a levy and sale had been made, had been withdrawn, and the levy abandoned by the plaintiff, in contradiction to the sheriff’s deed.

The remedv of the party is by application to the court to set aside the sale under the execution,

THIS was an action of ejectment, tried at the Rensselaer circuit, in July, 1818, before Mr. Justice Van Ness.

The plaintiff gave in evidence a deed from Jacob J. Van-derheyden, and Catharine his wife, (the defendant,) duly ae-knowledged, by which they granted and conveyed to the lessor of the plaintiff the premises in question, in fee, with Wcirrilllty.

A witness testified, that the premises were part of an estate held and possessed by the father of Jacob J. Vanderheyden, under whom he derived title, by devise or descent, and that j,e was jn possession of the premises at the date of the deed; and that the said Jacob died before the commencement of this suit.

By an agreement, dated the 10th of April, 1816, between t^e defendant an^ John D. Dickenson and others, the defendant covenanted, as soon as convenient, and when requested,

p. 141

to release to them all right and title of dower, as the wife of Jacob J. Vanderheyden, in certain lands claimed by them, and give up all deeds, &c. And they covenanted, on receiving such release, to convey to her, in fee, lot No. 242, part of the premises in question ; and to remove, and put a bam standing on the adjoining lot, on lot 242, &c.

A witness proved, that the defendant went into possession of the premises by virtue of this agreement.

The defendant then offered to prove a title in John D, Dickenson and others, by virtue of a judgment and execution in favor of John Kimberly, against the said Jacob J. Vander-heydm, docketed the 5th of September, 1.810, for 2,000 dollars. This evidence was objected to, on the ground that the defendant was estopped by her deed, and the covenants in the deed, from setting up any thing in opposition thereto. But the objection was overruled by the judge ; and #the judgment and execution, and a sheriff’s deed, dated the 12th of March, Hi-i, to John D. Dickenson, for the premises in question, and the articles of were read in evidence.

The plaintiff then offered to prove, that the execution was withdrawn from the sheriff, and the levy abandoned, after the levy was made, and after the return of the execution, at the in-.'tancc of Dickenson, and that Dickenson was, in fact, the owner of the judgment at the time the execution was so withdrawn, and the levy thereon abandoned, and at the time of the sale under it. But this evidence was rejected by the judge, who charged the jury to find for the defendant, observing, that the covenants in the deed did not bind her ; that, as the plaintiff had not deduced and proved title in her, at the time of executing the deed, it could only pass an inchoate right of dower, consummated by her husband’s death, which was interest not recoverable in ejectment, and that the deqd could not estop the defendant from sotting up an outstanding title, or any other defence; and the jury, accordingly, found a verdict for the defendant.

On a case containing the facts above stated, a motion was made for a new trial, which was submitted to the court without argument.

delivered the opinion of the court. The defendant was not estopped by the deed she executed with her husband, to the lessor of the plaintiff, for the premises in question. It. is a settled principle of the common law, that coverture disqualifies a feme from entering into a contract or covenant, personally binding upon her. She may, at common law, pass her real property, by afine duly levied ; and under our statute, she may. also, in conjunction with her husband, and on due examination before a competent officer, convey her real estate, or any existing or contingent future interest in it. But such deed cannot operate as an estoppel to her subsequently acquired interest in the same lands. The defendant’s subsequent

p. 142

agreement with Dickenson, in regard to the lots in question, was not affected by the covenants in the deed to the lessor.

*The offer on the part of the plaintiff, to show, that the writ of fieri facias, issued under the judgment, in favor of Kimberly against Vanderheyden, had been withdrawn,, and the levy abandoned, was properly overruled. It was an attempt, collaterally, to contradict the sheriffs deed, and this we have held (Jackson v. Croy, 12 Johns. Rep. 429 .) to be inadmissible. The plaintiffs remedy, if the facts would authorize it, would be an application to the court to set aside the sale.

I do not understand, that the plaintiff relies on the right of dower acquired under the deed from the defendant and her husband. If, however, that right is insisted on, the answer is decisive, that it is a right resting in action only; it cannot be so aliened as to enable the grantee to bring an action in his own name; a feme covert, or a widow, may release her claim of dower so as to bar her, but she can invest no other person with the right to maintain an action for it; and, besides, dower cannot be recovered, in an action of ejectment, until it has been assigned,^[1]

Motion for a new trial denied.

(a) (a) See Jackson v. Hixon, ante, 123. 126. Jackson, ex dem. Hooker, v. Young, 5 Cowen, 269.