Durnherr v. Rau — 38 N.Y. St. Rep. 786

Majority

p. 786

Benedicta Durnherr, App’lt, v. Joseph Rau, Resp’t.

(Supreme Court, General Tei'm, Fifth Department,

Filed June 2, 1891.)

Headnote

1. Promise—Dower.

A husband, the wife not joining in the deed, conveyed lands to the defendant, the latter covenanting to pay mortgages upon the premises. Seventeen days later the grantor and grantee in said deed quit-claimed the premises to. a third party, who also agreed to pay said incumbrances. There was no evidence that during the interval between the two deeds the wife had ever heard of or in any manner accepted or acted upon the defendant’s covenant in the first deed. The defendant did not pay the mortgages; these were foreclosed, and the wife, who had joined in them, lost her. dower. In an action by her for damages, alleging her dower as the measure thereof, Held, that she could not recover; that the defendant owed the wife no duty to protect her inchoate right of dower;_ and that the covenant did not purport to be, and there was no proof aliunde, that it was made for her benefit.

2. Covenant—revocation.

That the second deed as between grantor and grantee amounted to a revocation and rescission of the covenants in the first, and equally so as to all persons who had not acquired vested rights under the covenants, and these the wife had not acquired.

Appeal from an order made on the minutes oE the judge at the-circuit, setting aside a verdict in favor of the plaintiff and granting a new trial.

Theo. Bacon, for app’lt; William E. Edmonds, for resp’t.

The action was on a covenant of the defendant to pay incumbrances on lands conveyed to him by the plaintiff’s husband. The covenant was contained in the deed of the husband, to the defendant, to which the plaintiff was not a party. She had joined in the execution of certain mortgages included in the incumbrances referred to, which in default of payment by the defendant, were foreclosed and her right of dower was defeated. She commenced this action after the death of her husband alleging the value of her dower as the measure of the damages sustained by her by reason of the breach of the defendant’s covenant. In addition to the facts above stated it appeared that seventeen days after the execution of the deed from the husband to the defendant, the grantor and grantee therein united in a deed of the j same premises to one Grustavus Rau, which contained the same covenant, on the part of the new grantee, to pay incumbrances. The court, on the trial, submitted to the jury the question of the value of the plaintiff’s dower, which was assessed at the sum of $500, but, on a motion for a new trial, set aside the verdict holding that the plaintiff had not made out a cause of action against the defendant.

p. 787

We think this conclusion was correct and that the order setting aside the verdict was properly granted. ' The plaintiff's claim to recover was based upon the doctrine of Lawrence v. Fox, 20 N. Y., 268 , and the verdict was set aside, as appears by the opinion of the learned judge at the circuit, on the ground that the case was not within that doctrine for the reason that the covenantee owed no duty to the plaintiff to protect her inchoate right of dower. Vrooman v. Turner, 69 N. Y, 280 . The argument of the opinion is forcible and well sustained by the authorities cited, but we think there was another reason why the case was not within the doctrine relied upon, viz.: that the covenant does not, by its terms, purport to be, and there is no proof aliunde to show that it was, made, or procured to be made, for the benefit of the plaintiff. It was the grantor in the deed who was liable to pay the encumbrances, and the covenant on the part of the grantee stood for so much of the consideration of the sale.

It is true that performance of the covenant would have enured to the benefit of the plaintiff, but only consequentially and contingently ; the covenant was primarily and directly for the benefit of the grantor himself, and there is nothing to show that it was intended for the benefit of the plaintiff in any event. If it was not made or intended for her benefit it was certain by not a covenant upon which she can herself maintain an action, she being neither party nor privy to the deed in which it was contained. The provision in the deed which reserved the plaintiff’s right of dower had, of course, no reference to the incumbrances here in question. It was quite unnecessary, it is true, for the purpose of reserving the dower from the effect of the conveyance in which it occurred, but that was the extent of its operation, and it seems to lend no color to the proposition that the covenant to pay incumbrances was intended for the benefit of the plaintiff.

But even though the case were clearly within the doctrine of Lawrence v. Fox, we think the plaintiff must fail of her action because of the revocation of the covenant by the execution of the joint deed of covenantor and covenantee to a third person. Tbat_deed is .before us, as it was not before the judge below, on the motion for a new trial. It is a quit-claim conveyance of all the interest of both the parties to the former deed; and is subject to the same condition as the former as to the payment of incumbrances by the grantee. It was executed some seventeen days after the former deed, and there is no evidence that at that time the plaintiff had ever heard of the covenant in the former deed, much less had, in any manner, accepted or acted upon it. We can have no doubt that the joint execution of the new deed by the grantor and grantee in the old one worked a complete reeission and revocation, as between them, of all the covenants contained in the former, and equally so as to all other persons, except such as had acquired vested rights under such covenants. The plaintiff was clearly not within the latter category.

Upon both the .grounds here considered, we think the order setting aside the verdict, and granting a new trial, was properly made.

p. 788

Order appealed from affirmed, with costs to abide the final award of costs.

Macomber, J., concurs.