Delafield v. Brady — 13 N.Y. St. Rep. 667

Majority

p. 667

Francis Delafield et al., Resp’ts, v. James Brady et al., Appl’ts.^[1]

(Court of Appeals,

Filed February 28, 1888.)

Headnote

1. Husband and wife—Conveyance of land by a wife living apart from her husband under a decree of a court of chancery— Form of acknowledgment by—1 Rev. Stat., 758, § 10.

In 1834 Mrs. Pool, in an action against her husband, obtained a decree, by a court of chancery, of separation from him, which also divested him of all authority or control over her person and estate, and provided that all the right, title and interest of the husband in her real estate should cease and be divested in the same manner as if the said parties had never been married. In 1842 Mrs. Pool became owner of certain lots which she conveyed in 1846 by a deed, the certificate of acknowledgment to which did not recite that the acknowledgment was made apart from her husband upon a private examination, as the statute then in force (1 Rev Stat . 758. § 10,) required, the acknowledgment of a married woman to recite Held, that in consequence of the said decree Mrs. Pool was taken out of the operation of the statute above referred to, and that she could acknowledge a deed conveying her real estate as if she were unmarried.

2. Limited divorce—Provision of decree—2 Rev. Stat , 147 g 54.

Under the statute (2 Rev. Stat., 147, § 54,) providing that upon decreeing a separation the court “may make such further decree as the nature and the circumstances of the case may require * * * " power was vested in the court to provide, by the decree of separation, that the wife should be vested with the control of her own property and that the husband should have no rights or interest therein or control thereof.

Appeal from a judgment of the supreme court, general term, first department, ordered to be entered upon the verdict of a jury, rendered at the trial term, on the denial by the said general term of a motion for a new trial upon ex

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ceptions ordered to be heard in the first instance at general term.

John Townshend, for app’lts; Herbert B. Turner, for resp’ts.

This action was brought to recover two lots of land in the city of New York, and upon the trial the court directed the jury to find a verdict in’ favor of the plaintiffs. The lots were in 1831 the property of Charles Pool, who, with his wife in July of that year conveyed them to John Fisher, the father of Mrs. Pool. In February, 1834, Mrs. Pool, in an action against her husband, in the court of chancery obtained a decree of separation from him, and in that decree it was ordered, adjudged and decreed that “the complainant and defendant be separated from bed and board forever; that all authority and control of the said defendant over the person and estate, present and future, of the said complainant do cease and be forever divested and null; that all the estate, right and title and interest, claim and demand whatsoever of the said defendant, his heirs, executors, administrators or assigns, of, in and to the property, estate, real and personal, dioses in action, or earnings belonging to or which shall or may come, descend to or accrue, or be vested to or in the said complainant, Rose Hannah S. Pool, shall also cease, be divested and become and continue forever null and void, in the same manner as if the said parties had never been married.” In March, 1842, John Fisher conveyed the two lots to Mrs. Pool, and in March, 1846, she executed a conveyance of the lots to Edwin A. Johnson by a deed conceded to be in all respects adequate and sufficient to convey the title, if properly acknowledged. It "was acknowledged by her as if she were a feme sole, the certificate of acknowledgement not reciting that the acknowledgement was made apart from her husband, upon a private examination; and the plaintiffs derived title to the premises through several mesne conveyances from Johnson.

In January, 1849, Mrs. Pool executed a paper purporting to be her last will and testament, by which she, in terms, devised the residue of her real estate to Richard Fisher, and she died October 13, 1849. Richard Fisher for the purpose of confirming the title conveyed by Mrs. Pool, executed in 1848, a conveyance of the lots to the plaintiffs, and they therefore, claim title to the lots in question, both under the deed and under the will of Mrs. Pool. The claim of the defendants is that the deed was inoperative because it was not properly acknowledged, and that the will was inoperative because at the time she made it she was a married woman.

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We are of opinion that the title of the plaintiffs under the deed of Mrs. Pool is valid, and it is therefore unneces - sary for us to consider the force and effect of the title derived under the will. It was provided in the Revised Statutes which were in force at the time of the execution of the deed by Mrs. Pool to Johnson that “ the acknowledment of a married woman residing in this state to a conveyance purporting to be executed by her, shall not be taken unless in addition to the requisites contained in the preceding section she acknowledged, on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband; nor shall any estate of any such married woman pass 'by any conveyance not so acknowledged.” The plain purpose of this provision of the statute was to protect a married woman against the coercion or improper influence of her husband, and to furnish evidence that she executed the deed subscribed by her freely and without any fear or compulsion of her husband. This case is therefore not within the purpose ■of the statute. Mrs. Pool was living separate and apart from her husband, and by the decree of separation was ■entirely freed from his control. She was for most purposes practically a feme sole, not entitled to the protection of her husband nor subject to his dominion.

It was provided in the Revised Statutes that upon decreeing a sparation, the court “ may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and maintenance of her children, or any of them, by the husband, or out of his property, as may be proper and just.”

It has been held that under this section power was vested in the court to provide by the decree of separation that the wife should be vested with the control of her own property, and that the husband should have no rights or interest therein or control thereof. Meehan v.Meehan, 2 Barb., 377 ; Holmes v. Holmes, 4 id., 297; Van Duzer v. Van Duzer, 6 Paige, 366; Renwick v. Renwick, 10 id., 425; Haviland v. Bloom, 6 John. Ch., 178.

Whether the broad terms of the decree granted to Mrs. Pool, as respects her property rights were strictly regular or not, it is certain that the court had jurisdiction to make the decree and that it cannot be assailed collaterally as absolutely void. If the decree was too broad it could only be corrected by application to the court or by appeal from its decision.

Under such circumstances it would have been quite an idle, useless ceremony to require a private examination of Mrs. Pool and an acknowledgement that she executed the

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deed freely and without any fear or compulsion of her husband. It is a fundamental" rule that statutes should be so construed as to give ■ effect to the purpose of the law makers. Statutes framed in general terms frequently embrace things which are not within the intent of the law makers, and sometimes things within such intent are not within the letter. Hence, in construing statutes, it has frequently been held that a thing which is within the letter of a statute is not within the statute unless it be within the intent of the law makers. People v. Utica Ins. Co., 15 John., 358 ; Jackson v. Collins, 3 Cow., 89 ; Lake Shore and Mich. So. R. R. Co. v. Roach, 80 N. Y., 339 .

We are therefore of opinion that, in consequence of the decree separating Mrs. Pool from her husband, she was taken out of the operation of the statute above referred to, and that she could acknowledge a deed conveying her real estate as if she were unmarried. The reason of the statute ceased to apply to her, and while she was still a married woman and within its letter, she ceased to be a married woman within its spirit and meaning. Her deed was therefore effectual to convey her title to the real estate, and a verdict was properly directed in favor of the plaintiffs.

The judgment should be affirmed with costs.

All concur.