Dempsey v. Tylee — 10 N.Y. Super. Ct. 73

Majority

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Jane Dempsey, Appellant, v. Daniel E. Tylee and others. Chastelain and Turner, Assignees of Dan. E. Tylee, v. Jane Dempsey, Appellant.

Headnote

Authenticated copies of deeds, purported to be executed and duly acknowledged, in 1822, so as to entitle them to be recorded, but not recorded until 1843, are competent and primé facie evidence of the execution and delivery of the deeds.

A conveyance by husband and wife of real estate belonging to her, to a third person, and a reconveyance of the same estate by such third person to the husband, with intent to vest the title in the husband, when the freedom of the wife in the transaction, and her capacity, are unquestioned, will vest in the husband a valid title to the property granted.

A subsequent conveyance by the husband and wife of the same real estate to a trustee, by a deed, the terms of which imply, or justify the inference, but do not

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expressly affirm that the real estate belonged to her, in fee, in her own right, will not estop a subsequent grantee of the husband of the same premises, in a controversy between them and the heirs of the wife, from claiming title, under the deeds, which had previously vested the title in the husband.

An estoppel is not favored in the law. If anything be not directly and precisely alleged, it shall be no estoppel Estoppels, to be binding, must be mutual

The wife of D. E. Tylee was not estopped by the recitals, in the deed to Morris, from proving the truth in relation to the matters recited, whenever it should become necessary to litigate as to the truth of the facts recited, and she not being estopped, he was not, nor are his bond fide grantees.

Per Boswobth, J.—A married woman cannot convey her real estate directly to her husband. Hot being able to make a valid conveyance directly to him, she cannot, by uniting with him in a deed of her real estate to a trustee, reserve a valid power, to appoint it to his use, or one by which she can, by a last will and testament, devise to him. A will by a married woman, in pursuance and in execution of a power so reserved, by which she devises her real estate to her husband, is inoperative and void.

During coverture she possesses no power to convey by deed to her husband, and is destitute of any testamentary capacity. Such power or capacity cannot be created over lands belonging to herself in fee, by virtue of any agreement made, during coverture, between herself and her husband. It can only be created or preserved by an ante-nuptial agreement. Having power to grant or devise, whñe a feme sole, she may by such an agreement reserve a power, by the due execution of which, she may make a valid will in favor of her husband.

y, B.—It was not intimated, on the argument of this case, by either counsel, that Chap. 200 of the laws of 1848, and Chap. 376 of the laws of 1849, had any application to the facts of this case.

(Before Duer, Campbell, and Boswobth, J.J.)

Dec. 16, 1853;

Feb. 18, 1854.

Tms suit was commenced in the late Court of Chancery, before the Vice-Chancellor of the first circuit. .Before it had been brought to a hearing, the constitution of 1846, and subsequent acts of the Legislature, transferred it to the Supreme Court. It was referred to Eeuben H. Walworth, late Chancellor of this state, as referee, to hear and decide all the issues joined therein. He heard and decided the same, and a decree was entered in conformity with his decision. From parts of the decree, Jane Dempsey appealed to the general term of the Supreme Court. That appeal was transferred by the Supreme Court to this court, under a statute authorizing such transfer for the consideration and judgment of this court.

Jane Dempsey and Catharine Westervelt, who afterwards

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married Daniel E. Tylee, but died before this suit was brought, under the will of Samuel Ellis, who died previous to the 12th of July, 1794, became entitled to four lots of ground in New York city, as tenants in common, subject to the life estate of their .mother therein. The mother, in June, 1808, conveyed her life estate to Daniel E. Tylee, and died in May, 1831.

On the 21st of August, 1822, Tylee and wife, for the purpose of vesting the title of these lots in D. E. Tylee, to the extent of his wife’s interest therein, conveyed an undivided half of the four lots to James Tylee, the father of Daniel E., and on the 23d of the same August, James Tylee conveyed the premises to Daniel E. Tylee. Both deeds were duly acknowledged, but not recorded until the 28th of April, 1843, after this suit was commenced.

In 1839, on the 24th of October, D. E. Tylee and wife conveyed the same premises to George P. Morris as trustee, and one of the trusts was, that the premises (if not otherwise disposed of by her) should be held upon such trusts as Catharine Tylee shall, by her last will and testament, or any codicil thereto, direct, limit, or appoint, give or devise, and in default of any such direction, limitation, or appointment, and from and after her decease, upon trust for D. E. Tylee, his heirs and assigns for ever.

In May, 1840, Catharine E. Tylee, made and published her last will and testament, by which she devised and bequeathed all her real and personal estate to „ Daniel E. Tylee, and in Feb. 7, 1843, she died without having revoked or altered it, leaving her surviving two sisters, Jane Dempsey, the complainant, Elizabeth Leaycraft, and five nieces, daughters of her deceased brother Garret Westervelt, her only heirs-at-law, surviving her, all of whom were made parties to this suit. In March, 1843, George P. Morris conveyed the property which had been granted to him by the trust .deed of October 24, 1839, to D. E. Tylee.

On the 30th of June, 1843, Tylee mortgaged .to defendant, George Lovett, an undivided half of the four lots, to secure the payment of $12,000, which was recorded on the first of July, 1843.

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This action was commenced on the 27th of July,. 1843, by Jane Dempsey, against Daniel E. Tylee, George P. Morris, and the surviving heirs. of .Catharine Tylee, to assert the, legal title of Jane Dempsey to a.third part of Catharine Tylee’s undivided half, and to procure the alleged will and-deed by trust to be given up and .cancelled. Lovett was made a party, on the ground that he claimed some interest under his mortgage, and the surviving heirs of Catharine Tylee were made parties,' on the ground of their being, interested, and to the end that their rights might be settled in this, suit, in case they so elected. .. , ...

After the suit was brought, some of the heirs of Catharine Tylee died, and the complainant, by .purchase and grant, acquired the interests of others of such heirs. Proceedings were had to bring the new parties in interest before the court, and to state the after-acquired, interest of Jane Dempsey. ;

D..E. Tylee demurred to the Original-Bill, and the demurrer was overruled.

Before the new parties in interest, and the change in the extent of the interest of Jane Dempsey in the premises, had been brought before the court, by a bill in the nature of a bill of revision and . supplement; Daniel E.- Tylee, on the 21st of March, 1846, by a deed of assignment, conveyed the undivided half of these four lots to Julian Chastelain and Daniel H. Turner, in trust for the benefit of his creditors. The deed of assignment declared that it was not intended to.‘convey thereby any interest, which D. E.. Tylee, by.the injunction in this suit, had been enjoined from assigning. He .had been enjoined from collecting or disposing of, &c., one third of the future rents.

On the 17th of June, 1846, Jane Dempsey filed her supplemental complaint. The original and supplemental bill were taken as confessed by D. E. Tylee, the first in May and the last in June, 1847. In July, '1848, Chastelain and Turner, on their application, obtained an order, so far vacating the decree pro confesso, entered against Daniel E. Tylee, as to allow them to file a supplemental bill, and make themselves parties to the suit, and set up their claims under the deed of assignment executed to them, and they filed such bill in September, 1848.

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This statement will make the report of the referee intelligible, without an abstract of the pleadings, which are voluminous. The suit being at issue, as to all the parties, it was referred to a referee, on the 29th of May, 1850, who reported as follows:

To the Justices of the Supreme Gou/rt of the State of New York:

I, the undersigned Reuben H. Walworth, the sole referee to whom, by the order of this court of the 29th of May, 1850, this cause and the cause upon the cross-bill filed by the defendants Chastelain and Turner and the proceedings thereon were referred, and the whole issue thereon, to take testimony and proofs and to hear and decide all issues, and to report upon the whole issue and suit and the costs therein, so that judgment might be entered on such report in the same manner as if this action had been tried in or by the court, do respectfully report:

That I have been attended by the counsel for the respective parties who have appeared in the suit, and in the suit upon the cross-bill, except the defendant Daniel E. Tylee, who has suffered the bills to be taken as confessed against him after he had assigned all his interest in the subject-matter of the suit for the benefit of his creditors, and have heard and examined the testimony on the part of the respective parties, and having heard counsel thereon and having duly considered the pleadings, proofs, and other matters produced before me, I do therefore, in pursuance of the power and authority in me vested by the said order of reference and the laws of this state, as such sole referee, decide, determine, adjudge, and report, as follows:

Under and by virtue of the last will and testament of Samuel Ellis, formerly of Bergen in the state of New Jersey, who died previous to the 12th of July, 1794, the complainant Jane Dempsey and Catharine Westervelt, who afterwards intermarried with the defendant Daniel E. Tylee, in August, 1806, became entitled to four lots of ground in the city of Kew York, as tenants in common, then known as lots one thousand and two and one thousand and three, fronting on Greenwich street, and one thou

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sand and fourteen and one thousand and fifteen,.then fronting on (Second street, now) Washington street, in the complainant’s bill in this cause particularly described, subject to the life estate of their mother therein, who died in May, 1831, after having conveyed all her interest in the undivided half of those four lots to the defendant Daniel E. Tylee, in June, 1808. Under this last mentioned conveyance the defendant, Daniel E. Tylee, went into the possession of the undivided half of the said four lots, and continued to lease them and to receive the rents and profits thereof, until the conveyance thereof to George P. Morris in trust, as hereafter mentioned. On the twenty-first of August, 1822, Daniel E. Tylee and Catharine his wife, for the purpose of vesting all her interest in the undivided half of these four lots of land and of certain other property devised to her by Samuel Ellis, in Daniel E. Tylee her husband, executed a conveyance thereof in fee simple absolute to James Tylee, the father of Daniel E. Tylee; which deed was duly acknowledged by the grantors therein before a commissioner, on the day of its date, in such a manner as was required by law to convey the real estate of a married woman.

And on the 23rd day of August in the same year, James Tylee conveyed the saíne property to the defendant, Daniel E. Tylee, in fee simple, which conveyance was also duly acknowledged by the grantor on the day of its date. But neither of the two last mentioned conveyances was recorded, nor was their existence known to the complainant until the 28th of September, 1843, more than two months after the commencement of this suit; when they were both duly recorded at the request of the solicitor of the defendant, Daniel E. Tylee. Both of these conveyances recite the execution of a previous deed of the same premises to James Tylee, from Daniel E. Tylee and wife when she was under age. And the deed from James Tylee to Daniel E. Tylee of the 23rd of August, 1822, also contained a recital of the fact, that on the twenty-first of the same month, Daniel E. Tylee and wife had conveyed the premises to the said James Tylee in fee. In 1839 Daniel E. Tylee having become embarrassed in consequence of his connexion with the Uorth American Trust and Banking Company, he .and his wife executed a conveyance for the undivided half of the four lots before men

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tioned in the city of ¡New York to George P. Morris as trustee, on the 24th of October, 1839, which conveyance was duly acknowledged the same day by the grantees therein, in the manner required by law to pass the real estate of a married woman, and was duly recorded on the succeeding day. And subsequently to the date of that conveyance and until after the death of his wife, the four lots were rented in the name of Morris the trustee, by Daniel E. Tylee. That conveyance contained a recital that Catharine, the wife of Daniel E. Tylee, inherited the premises therein described from her father, and had theretofore enjoyed them and the rents and profits thereof, as if the same were her individual estate ; but that no binding and formal settlement had ever been executed and acknowledged, although the provisions and trusts and spirit of the settlement contained in that conveyance had always theretofore been carried out; and that it was intended that such conveyance should embrace the former and the then present intention of the parties. The grantees in that conveyance, therefore, by the names and description of Daniel E. Tylee of the city of ¡New York gentleman, of the first part, and .Catharine E. Tylee of the second part, in consideration of the affection and marriage between them, and of one dollar to each of them paid by George P. Morris of the same city, editor, of the third part, did and each of them did grant, convey, release, and transfer to the said party of the third part, the equal moiety of the four lots therein described, with the privileges and appurtenances, &c., and all the estate and interest of the parties of the first and second parts and of each of them, in the premises ; to have and to hold the same and all the rights, rents, and profits to the use of the said party of the third part and his heirs and assigns, but upon the uses and trust in the said conveyance thereafter set forth; which uses and trust as thereinafter set forth were as follows: Upon trust for the said party of the third part from time to time to let and lease the said premises and also to collect and receive and get in the rents and profits of all and every the said ground, houses and premises, to give receipts for" the same; and as and when the said rents and profits "shall be received, to pay and apply the same to and for the separate and sole use and benefit, and on the sole receipt of the said party of the second part, and so

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that the same shall he free from the debts, liabilities, and en gagements of the said party of the first part, and not be in any way affected or encumbered by him; and it is hereby declared to be the true meaning of these presents that it shall be lawful for the said party of the second part during her life, to make, sell and absolutely dispose of, for a fair valuable consideration in money, or to convey in exchange in lieu of other lands, all or any part of the herein described premises to or with any person or persons; and in order to effect such sales it shall be lawful for the said party of the third part or any trustee to be appointed hereunder in his place, with the consent and approbation and at the request of the party tif the second part in writing, by any deed or transfer to be executed with the said party of the second part joining therein, to perfect any such sale or exchange to the purchaser or party making exchange: And it is hereby declared that upon any such exchange taking place the premises taken in exchange shall be subject to the trusts and provisions of this deed; also, that the money arising upon any sale shall be laid out in the purchase of other lands, which shall also then be subject to the, trusts and provisions of the present deed. And in case no such sale or exchange shall take place of the herein described premises, or if only a part shall be sold and exchanged, then the herein described premises or such of them as shall not be sold or exchanged and also all newly purchased lands and the avails of the old premises shall be upon trust (during the joint lives of the parties of the first and second parts) as the said party of the second part, as if she was a feme sole, shall by her last will and testament or any codicil thereto direct, limit or appoint, give or devise. And in default of any such direction, limita'tion or appointment, and from and after the decease of the said party of the second part, then upon trust for the party of the first part, his heirs and assigns for ever; and in case the said party of the first part shall die in the lifetime of the said party of the second part, then all the present trusts herein shall cease and the aforesaid premises, or, if sold or exchanged, then all property taken in exchange or property substituted on sales and all avails, shall vest absolutely in the said party of the second part, her heirs, executors, administrators and assigns, and the

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trustee shall be compelled to convey and transfer all and every the same to her, her heirs, executors, administrators and assigns for ever. This conveyance to Morris, also contained a provision for the appointment of a new trustee, in the place of any trustee who should die, or neglect to act.

In May, 1840, Catharine E. Tylee, the wife of the defendant Daniel E. Tylee, made and published her last will and testament, or an instrument in the nature of a last will and testament, in the presence of three credible witnesses, who attested the same as witnesses in her presence and at her request, which was executed and subscribed by her in writing, whereby she gave and devised and bequeathed all her real and personal' estate to her husband the said Daniel E. Tylee, to his own proper use absolutely for ever; and in February, 1843, she died without revoking or altering the said will and testament or instrument in writing, in the nature of a last will and testament, leaving her two sisters, Jane Dempsey the complainant in this suit, and Elizabeth Leaycraft and her five nieces, the daughters of her deceased brother Garret Westervelt, her only heirs at law surviving her. In March, 1843, George P. Morris, to whom the conveyance in trust of the undivided half of those four lots had been made, released and conveyed the said premises, and all his estate, right, title and interest therein to Daniel E. Tylee and to his heirs and assigns for ever. On the 30th of June, 1843, the defendant Daniel E. Tylee, claiming and representing himself to be the sole and absolute owner of the undivided half of the said four lots, mortgaged the same to the defendant George Lovett, in fee to secure the repayment of §12,000 with semi-annual interest thereon, on the first of July, 1846, loaned to the said Tylee, by the said Lovett upon the faith and security of the said mortgage, bond fide, and without any notice on the part of the said mortgagee, at the time such money was loaned and actually paid over, that any other person than the said Tylee had or claimed any interest, legal or equitable, in the said mortgaged premises; which mortgage was duly acknowledged and recorded on the first day of July, 1843. At the time of giving this mortgage, the premises were subject to another mortgage, executed by the defendant Daniel E. Tylee and his said wife, in due form of law, to pass the interest and estate of

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both in the premises, on the 12th day of June, 1832, to the complainant in this suit, to secure the payment of five thousand dollars and the interest thereon, on which last mentioned mortgage there was due to the complainant on the 30th of June, 1843, the sum of $7176 45 cents, in addition to the costs of a foreclosure suit, which had been commenced by the complainant thereon.

And at the time of making the said loan of $12,000 to the said Tylee, and out of the moneys thus loaned, the defendant George Lovett paid over to the attorney of the said complainant the amount due her upon her said mortgage, together with the costs of the foreclosure suit, and paid the residue of the $12,000 to the said Tylee; and the mortgage to the complainant was thereupon cancelled upon record.

This suit was commenced about the 27th day of July, 1843, and on that day the subpoena and injunction issued therein were served personally on the defendant Daniel E. Tylee, and the next day on the defendant George Lovett; and Tylee subsequently put in a demurrer to the bill, which was afterwards overruled.

In the month of January, 1845, Elizabeth Leaycraft, one of the defendants in the original suit, died, after having made her will in due form of law to pass real estate, and devised her real estate to Edward B. Tylée and Asa Hall, her executors, in trust to sell the same for the benefit of creditors and legatees ; and the suit was revived by a bill of revivor and supplement against her devisees, filed on the 19th day of June, 1845. But in March, 1844, previous to the abatement of the suit, a receiver of the rents and profits of the premises in question in this cause had been appointed by an order of the court, with the consent of the parties.

On the nineteenth of February, 1846, the complainant purchased of and took a conveyance in fee from the defendant, Eliza Woods, one of the five children of Garret Westervelt, deceased, who were heirs-at-law of Catharine E. Tylee, the deceased wife of Daniel E. Tylee, the husband of the said Eliza Woods having previously died, for all the right, title and interest of. the said Eliza Woods, in and to the premises in question in this cause, being the undivided half of the four lots

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mentioned in the complainant’s hill; and on the same day the said complainant purchased and took conveyances from Sarah Dean, Jane Ann Gardner, and Caroline Kelly, three of the other children of the said Garret Westervelt, and heirs-at-law of the said Catharine E. Tylee, of all their respective rights and interest in the said premises; and, on the eighteenth of March in the same year, she purchased and took a conveyance from Ellen Boyle, the remaining daughter of the said Garret Westervelt, and one of the heirs-at-law of the said Catharine E. Tylee, deceased, for all the right and interest of the said Ellen in the said premises, in which said several conveyances the husbands of such of the grantors as had husbands were joined; and all which conveyances were acknowledged by the several grantors in due form of law to pass all their estate and interest in the premises, and also conveyed the rents and profits which had before accrued. By-which several conveyances this suit became so far defective as to render it necessary that the statement of these new interests which the complainant had acquired in the premises by these conveyances should be brought before the court by a bill, in the nature of a bill of revivor and supplement. While the suit remained in this situation, the defendant, Daniel E. Tylee, on the 21st day of March, 1846, by a deed duly executed to pass real estate, sold and conveyed the premises in question in this suit, being the undivided half of the four lots in the complainant’s bill named and described to Julian Chastelain and Daniel H. Turner, in trust, to sell the said premises at public or private sale, and for cash or on credit, and to apply the proceeds of such sale to the payment of the debts of the said Daniel E. Tylee, in the manner specified in the said deed. But, in the said deed, it was expressly provided that nothing was intended to or should pass by that instrument, which the said Daniel E. Tylee was restrained and enjoined from parting with by the injunction issued in this cause. The injunction referred to in the said deed enjoined and restrained the defendant, Daniel E. Tylee, from collecting, receiving, parting with, distraining for, or in any way affecting all or any present and future rents of one third part of the half of the four lots which originally belonged

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to Catharine the wife of the said Tylee until the further order of the court.

On the 17th of June, 1846, the complainant, Jane Dempsey, filed her supplemental bill in this cause for the purpose of bringing before the court the new interest she had acquired in the said premises and in the previous rents and profits thereof which she had acquired by these conveyances from the. children of Garret Westervelt; but Chastelain and Turner were not made parties to that supplemental bill.

The demurrer of the defendant, Daniel E. Tylee, to the original bill as amended, was subsequently overruled, and both the original bill as amended and this supplemental bill stating the new rights acquired by the complainant were taken as confessed against the defendant, Daniel E. Tylee, for want of answers thereto, the first on the 26th of May, 1847, and the last in June thereafter. On the 24th of July, 1848, upon the application of Chastelain and Turner, the grantees of the defendant, Daniel E. Tylee, the court directed the order pro confesso entered against the latter in this cause to be so far vacated as to authorize the' said Chastelain and Turner to file a supplemental bill to make themselves parties to this suit; and their supplemental bill, so called in the order of reference in this cause, or cross-bill, was filed by them in pursuance of the authority so given to them by the court in September, 1848. The original deeds of August, 1822, from Tylee and wife to James Tylee, and from the latter to Daniel E. Tylee, were not produced in evidence by the defendant, George Lovett, or by Chastelain and Turner, but those parties respectively produced before me authenticated copies of the records of such deeds, although such copies were objected to by the counsel for the complainant as not being legal evidence to prove the due execution and existence of such deeds.

And under the provisions of the Revised Statutes, I decide that those deeds having been duly acknowledged before the Revised Statutes went into operation, according to the laws then in force, and having been duly recorded subsequent to the first of January, 1830, the record of such deeds or the transcript of such record duly authenticated is legal evidence of

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the due execution of such deeds without the production of the original deeds.

Upon the facts hereinbefore stated, if the legal title to the undivided half of the four lots in controversy had been in Catharine, the wife of Daniel E. Tylee, at the time of the conveyance from herself and her husband to Morris in 1843, Morris would only have taken an estate and interest therein as trustee during the joint lives of herself and her husband ; and as to the remainder of the estate, as it was not upon any trust authorized by law, it would have remained in her precisely as it existed before the execution of the trust deed, as the wife could not convey a remainder in her legal estate to her husband, either directly, or by conveying it to a third person upon an unauthorized trust for her husband, nor could she reserve to herself the right to dispose of the remainder by will; the whole legal estate in such remainder being in her, notwithstanding the trust deed. Daniel E. Tylee, the defendant, acquired no title or interest in the premises, therefore, under the deed to Morris and the supposed will or appointment of his wife, if the legal title to the premises was not in him before the execution of the deed to' Morris. But so far as the rights of the defendant George Lovett and the rights of Chastelain and Turner are concerned, the conveyances of August, 1822, must be considered as fairly obtained, notwithstanding the defendant Daniel E. Tylee has suffered the bill to be taken as confessed, and thereby admitted, so far as his rights are concerned, that the deed to James Tylee of August, 1822, was a fraud upon the rights of the wife of the said Daniel. E. Tylee and of her heirs-at-law. The mortgage of George Lovett upon the undivided moiety of the said four lots is therefore a good and valid security, and he is entitled to an absolute lien upon the premises as against all the parties to this suit for the payment of the principal and interest due and to become due upon that mortgage, and the bill and supplemental bill of the complainant must, as against him, be dismissed with costs to be paid as hereinafter directed. Rone of the rents and profits of the premises which had accrued and become payable previous to the conveyance to Chastelain • and Turner on the 21st of March, 1846, passed to them by virtue of that conveyance.

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And the defendant Daniel E. Tylee having admitted away his rights therein by suffering the bills to be taken as confessed against him, one-third of those rents and profits in the hands of the receiver belongs to the defendants, who are the executors and devisees of Elizabeth Leaycraft, deceased, and the other two thirds belong to the complainant, as one of the heirs-at-law of her deceased sister Catharine E. Tylee, and as the assignee of her five nieces, who were heiresses-at-law. Two-thirds of the rents and profits which accrued or became payable after the 21st of March, 1846, belong to Chastelain and Turner, as the grantees in trust of the interest of Daniel E. Tylee in the premises; and Chastelain and Turner, as such grantees in trust, are entitled to the whole of the undivided half of the said four lots subject to the prior lien of Lovett’s mortgage thereon, and to such liens and rights as have been acquired by persons not parties to this suit under or by virtue of judgments against Daniel E. Tylee or other incumbrances upon the premises which are prior in date to the deed of trust to the said Chastelain and Turner. The injunction which restrained the defendant Daniel E. Tylee from collecting the one-third of the one-half of the rent of the four lots which was claimed by the complainant as one of the heirs-at-law of Catharine E. Tylee, deceased, must therefore be dissolved as to any rents which shall hereafter accrue or become payable. But as the one-third of the rents which the defendant Daniel E. Tylee was restrained from collecting, until the further order of the Court, could not pass, and did not pass to, Chastelain and Turner by the trust deed, because expressly excepted in such deed, that third of the rents and profits which shall have accrued and become payable at the time of the said partial dissolution of the injunction belongs to the complainant, in consequence of the admission of her right to the same by the defendant Daniel E. Tylee, by suffering her bills to be taken as confessed against him. Hie decree to be entered in this cause must, therefore, declare the rights and interests of the parties in the premises and in the rents and profits thereof, accordingly. And the receiver must be directed by the decree to pass Ms accounts of the rents and profits, and to pay over the balance in his hands, or which may have been paid into Court, or invested, to the

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parties entitled thereto accordingly, after paying out of the same the costs and expenses hereafter directed. The defendant Lovett, being a mortgagee for a valuable consideration and having also the strict legal right, is entitled to his costs. His costs to be taxed must, therefore, be paid by the receiver out of the rents and profits of the half of the four lots which had accrued and become payable previous to the 21st of March, 1846 ; and if there is not sufficient of those rents and profits in the hands of the receiver for that'purpose, he must pay the balance out of the third of the rents and profits which accrued and became-payable subsequent to that time, and which third the defendant, Daniel E. Tylee, was restrained by the injunction from collecting, receiving, or disposing of; and if that is not sufficient for that purpose, the balance must be paid by the complainant, Jane Dempsey, personally.

When the complainant commenced her suit, the deeds of August, 1822, had not been produced or placed upon record; and the defendant, Daniel E. Tylee, professed to claim his title to the premises under the deed to Morris and the unauthorized will of his deceased wife. She had probable cause, therefore, for the commencement of this suit. And if he had not suffered the bill to be taken as confessed, it would not have been a proper case to charge her with his coste. As to Chastelain and Turner, who purchased of him pendente Ute, they stand in his place in this respect and are not entitled to costs as against her, and as this suit was prosecuted for the benefit of Elizabeth Leaycraft and her executors and legatee, the complainant is not chargeable with costs as between her and them; but she is entitled to retain one-third of her costs in this case out of any rents and profits recovered in this suit to which they would otherwise be entitled. The decree must therefore direct the receiver to pay her one-third of her taxable costs out of any rents and profits which have come to his hands; and to which the executors of Elizabeth Leaycraft would be entitled in this case as before directed. As to the two hundred and fifty dollars, which by the stipulation of the counsel of the parties is to be paid to the referee for his services and expenses upon the reference, the complainant, Jane Dempsey, must pay one half of it, and may add the amount so paid to her taxable costs;

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the other half of the two hundred and fifty dollars must he paid by Chastelain and Turner. And they are to be at liberty to retain the same as well as their costs and reasonable counsel-fees in this suit and on the supplemental bill filed by them, out of the proceeds of their interest in the premises, upon a jsale thereof under the provisions of the trust deed from Daniel E. Tylee to them. The decree must direct the receiver to account before such referee as shall be appointed by the court, and pay over the balance of rents which have come to his hands according to the above directions. The complainant, if she elects to do so, may also have a provision inserted in the decree that the defendant, Daniel E. Tylee, account for and pay o ver to her, two-thirds of any rents and profits of the premises which he may have received subsequent to the death of his wife, and which accrued or became due and payable after that time; and to pay to her or her solicitor her costs in this suit to be taxed.

But in that case the decree must also direct that if any of her costs are collected from the defendant Daniel E. Tylee, she shall refund to the executors of Elizabeth Leaycraft their proportional part of such costs as may have been paid to her out of rents and profits of the premises to which they were entitled.

All which is respectfully submitted.

Reuben H. Walwoeth, jReferee.

Saratoga Springs, Dec. 26th, 1850.

A judgment, as settled by the referee, was entered on his report on the 13th of March, 1851.

The notice of appeal is as follows:

Take notice that the plaintiff, Jane Dempsey, appeals from and claims a rehearing of so much and such parts of the judgment herein dated'the 13th day of March in the year 1851, as are and is embraced in the following words and matter, namely, the matter embraced in the following words between folios two and four of the said judgment—“ It is decided, adjudged and decreed that the mortgage of the defendant, George Lovett, upon the four lots of ground in the pleadings mentioned and described, is a good and valid security; and that he, the said

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George Lovett, is entitled to an absolute lien upon the said premises as against all the parties to this suit for the payment of the principal and interest due and to become due upon that mortgage; and that the bill and supplemental bill of the complainant as against him is dismissed with costs to be paid as hereinafter directed.” Also the matter embraced in the following words between folios five and eight of the said judgment. “ And it is also decided, adjudged and decreed that two-thirds of the rents and profits which accrued or became payable after the twenty-first day of May one thousand eight hundred and forty-six, belong to Chastelain and Turner, as the grantees in trust of the interest of Daniel E. Tylee in the said premises. And it is also decided, adjudged and decreed, that the said Julian Chastelain and Daniel H. Turner, as such grantees in trust, are entitled to the whole of the undivided half of the said four lots, subject to the prior lien of Lovett’s mortgage thereon, and to such liens and rights as have been acquired by persons not parties to this suit under or by virtue of judgments against the defendant, Daniel E. Tylee, or other incumbrances upon the premises which are prior to the deed of trust or assignment to the said defendants Julian Chastelain and Daniel H. Turner. Also that the injunction herein, which restrained the defendant Daniel E. Tylee from collecting the one-third of the one-half of the rent of the said four lots, which was claimed by the complainant as one of the heirs at law of Catharine E. Tylee deceased, be dissolved as to any rents which shall hereafter accrue or become payable.” And also from so much of the following matter between folios eight and nine of the said judgment, as applies to the receiver’s accounting and paying over the two-thirds of the rents adjudged to the defendants Julian Chastelain and Daniel H. Turner. “ Also it is decided, adjudged and decreed, that the receiver in this suit pass his accounts of the rents and profits, and pay over the balance in his hands or which may have been paid into court or invested to the parties entitled thereto accordingly, or to their respective solicitors or attorneys on the receipts of the latter respectively, or of the parties themselves, after paying out of the same the costs and expenses hereafter directed.” And also that the said plaintiff appeals from the matter embraced in the following words

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between folios nine and twelve of the said judgment. “ And the said defendant, George Lovett, being a mortgagee for a valuable consideration, and having also the strict legal right, it is likewise decided, adjudged and decreed that he is entitled to his costs, that his costs be taxed and be paid by the receiver out of the rents and profits of the half of the said four lots which had accrued and became payable previous to the twenty-first day of March one thousand eight hundred and forty-six, and if there is not sufficient of those rents and profits in the hands of the receiver for that purpose, then he is to pay the balance out of the third of the rents and profits which accrued and became payable subsequent to that time, and which third the defendant Daniel E. Tylee was restrained by the injunction from collecting, receiving or disposing of; and if that is not sufficient for that purpose, the balance must be paid by the complainant Jane Dempsey personally.” And also that the said plaintiff appeals from the matter embraced in the following words between folios fifteen and seventeen of the said judgment. “ And it is also hereby ordered, adjudged and decreed, that the said receiver account before such referee as shall be appointed by the court (and so that an order embracing his name may he placed at the foot of this judgment and decree), and have allowed to him all just charges, fees, payments and commissions ; and that the said referee, so to be appointed, apportion and divide the balance of rents pursuant to what is herein adjudged and decreed; and after the coming in and confirmation of the report of the referee so to be appointed, then that the said receiver pay to the parties in this suit respectively or their solicitors their several shares of the rents and profits in his hands according to their several rights and interests therein as above declared, after paying costs and counsel fees as above directed.”

Charles Edwards and Wm. Curtis Noyes, for Appellant, made the following points.

I. The plaintiff being heir at law is not only looked upon favorably, but as primó facie entitled, is authorised to come into equity, and her cause must be overthrown, if at all,

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by clear and positive evidence. (Harrison v. Southcote, 1 Atk. 540.)

EE. The defendants, Julian Ohastelain and Daniel H. Turner, gained no standing and obtained no rights in this suit by the mere act of the Court allowing them to be made parties. For, being such parties, ought the Court to decree anything in their favor, as the title under which they claim is fraudulent and void. (Sedgwick v. Cleveland, 7 Paige, 290; Griffin v. Barney, 2 Comstock, 271; Salmon v. Clagett, 3 Bland, 141 ; Hamilton v. Houghton, 2 Bligh’s R. 186 ; Klock v. Cronkite, 1 Hill’s N. Y. R. 110; 2 R. S. 270, § 42, 43, 44, 50; Waters v. Stewart, 1 Cai. Ca. E. 47; Nicholson v. Leavitt, Ct. of Appeals, M. S., 2 Selden, 510.)

IH. Fot withstanding that Ohastelain and Turner are parties, yet the default against Tylee, as well as its ordinary legal consequences, must prevail against him, and also against them, as claiming under him.

IY. The title of the premises in question was never divested out of Mi’s. Tylee ; the acts and acknowledgments of Daniel E. Tylee and his wife, and the recitals in the deed by them to Morris, and Daniel E. Tylee’s recognition of this instrument and of the truth of its allegations, estop him, and those claiming under him, from setting up a title through any prior deeds. (Story, J., in Carver v. Jackson, 4 Peters’ U. S. Rep. 83; Jackson v. Parkhurst, 9 Wend. 209 ; Nelson, J., in Pelletreau v. Jackson, 11 lb. 117; Jackson v. Bull, 1 J. C. 90; Bayley v. Bradley, 5 Mason; Hunter v. Miller, 6 B. Monroe, 612; Cowen, J., in M'Crea v. Purmart, 16 Wend. 473 ; Elsey v. Metcalf, 1 Denio, 323 ; Sacksan ex dem. Ten Eyck v. Perkins, 2 Wend. 308 ; Smith v. Garland, 2 Merio, 123 ; 1 R. S. 756, § 22; 1 R. Laws, 369, 372; 1 R. S. 761, 2, § 30, 1, 2, 33; Dawson v. Same, Rice’s Eq. 244; Nixon v. Hamilton, 1 Irish Eq. 56; Gresly on Evid. 194-5; Woodworth v. Barker, 1 Hill’s N. Y. R. 272.)

1. The deed of Tylee and wife to James Tylee, of August, 1822, was never delivered, and never went into operation as a deed. (Jackson v. Phipps, 12 John R. 418; Elsey v. Metcalf, 1 Denio, 323 .) 2. The deed to Morris is conclusive evidence that the deed to James Tylee never was delivered.

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V. Daniel E. Tylee could not and did not get ¡any title in fee to the moiety under the deed to Moms, as all the trusts were void except that for the life of Mrs. Tylee. (Story on Agency, b, et seq.; Smyder v. Sponable, 1 Hill’s N. Y. R. 567 ; Wood v. Jackson, 8 Wend. 9 ; 1 R. S. 733, § 74, 80, 87. Ib. 735, § 110; In the matter of Stewart, 11 Paige, 398; Asst. V. C. Hoffman in Heyer v. Barger, 1 Hoff. Ch. R. 7; Coke on Litt. 3 a, 1,112; Rowe v. Hamilton, 3 Greenleaf’s R. 6, 3; Shepard v. Shepard, 7 J. C. R. 57; Wallingsford v. Allen, 11 Peters’ U. S. R. 583 ; 1 R. S. 728 ; Ib. 737, § 129 ; Bradish v. Gibbs, 3 John Ch. R. 523 ; Spurgeon v. Collyer, 1 Eden, 55.)

VI. The instrument called the will' of Mrs. Catharine E. Tylee was unauthorized, inoperative, and void, (a.) It is inoperative as a will. (2 R. S. 56, § 1; Matter of Stewart, 11 Paige, 398 ; Mockring v. Mitchell, 1 Barb. Ch. R. 266; Adams v. Kellogg, Kirby, 195; Tucker v. Inman, 4 Marn. & Grang. 1063; Goldsworthy v. Crossley, 4 Hare, 146; Rich v. Cockell, 9 Vesey, 376 ; Jackson v. Edwards, 7 Paige, 387 ; 1 R. S. 732, § 74; Ib. 737, § 130; Ib. 758, § 10; Ib. 738, § 135 ; Ib. § 137; Countz v. Geiger, 1 Call, 190 ; Fitch v. Brainard, 2 Day, 163 ; Strong v. Wilkin, 1 Barb. Ch. R. 9; 2 Hillyard on Real Property, 473, § 29; 1 R. S. 736, § 115; Heyer v. Burger, 1 Hoff. Ch. R. 7.) (b.) It is inoperative as a power or deed of appointment or grant. (1 R. S. 732, § 80; Ib. 737, § 130 ; Ib. 758, § 10.)

VH. Even if the plaintiff is driven so far back as to be required to assail the suggested deeds of the 21st and 23d of August, 1822, then, 1. These have not been exhibited and sustained sufficiently, to allow Daniel E. Tylee, or Julian Chaste-lain and Daniel H. Turner, to stand as the owners against heirs at law. 2. The deed of Mrs. Tylee to her father-in-law, James Tylee, was executed while she was a married woman without any consideration, was purely voluntary in its character, and under marital influence and presumed coercion and fraud. (Clancy on Married Women, p. 347, ch. 10.)

VIH. Daniel E. Tylee’s title failing, George Lovett’s mortgage goes with it. He took it on that title only. (Hopkins v. McLaren, 4 Cow. 667 ; Frost v. Beekman, 1 John. 299 ; Johnson v. Stagg, 2 John. 510 ; Berry v. Mutual Ins. Co., 2 J. C. R. 610; Starr v. Ellis, 6 J. C. R. 393.)

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IX. The decision of the referee should be reversed, and the decree should adjudge the title of the moiety which was in Catharine E. Tylee, to belong to her heiresses-at-law, at the time of her death, free from the Lovett mortgage, and a decree be made in conformity, giving two-thirds of it (one by purchase) to the plaintiff, and declaring that the remaining third belongs to the devisees of Elizabeth Leaycraft. That the alleged deeds of the 21st and 23d of August, 1822, and the alleged trust deed to Morris, and the alleged will, are void, &c. That the estate of Tylee died with his wife, and that he had no right to the rents after that time. That the receiver account before a referee, and after paying all costs to be taxed, and counsel fees to the plaintiff (to be certified), and the costs of the late Elizabeth Leaycraft, Asa Hall, Edward B. Tylee, as trustees, and of the heiresses-at-law of said Elizabeth Leaycraft, that he account, and after allowing and deducting commissions, pay two-thirds of balance to the plaintiff or her attorney, and hold the remaining one-third to be applied for by or on behalf of the said devisees of the said Elizabeth Leaycraft, with liberty for an account against Tylee, for any received since the death of his wife.

C. W. Sandford and D. Lord, for Chastelain, made the following points.

1. If the deed of Tylee and wife, to George P. Morris, trustee, &c., of October 24, 1839, was valid in all its limitations, the title of the premises in suit was vested in Daniel E. Tylee, in fee simple, on the death of Catharine lyiee, February 22, 1843.

Either, 1st, By the appointment of the latter, duly proved by Edward T. Lee and Christopher E. Lee, or, 2d, By the limitation on her dying without making an appointment contained in the body of the deed.

H. If the deed aforesaid was ineffectual as to any limitation on the death of Catharine Tylee, then—

The conveyance of Daniel E. Tylee and Catharine Tylee, to James Tylee, and the conveyance by the latter to Daniel E. Tylee, both in August, 1822, vested the title in the latter, in

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fee simple; and Ms estate, after the death of Catharine Tylee, was an absolute fee in possession.

The proof of the due execution and delivery of these deeds was sufficient. As to the recording of deeds proved before the Eevised Statutes, see 1 E. S. 760, § 22, and the reading of copies in evidence, 1 E. S. 759, § 17. The proof of acknowledgment was sufficient under the law of 1813. (See Appendix, 1st ed. 3 R. S.; App. 34, compared with 1 R. S. 758, § 12; 15 Wend. R. 547; Scrugham v. Wood, Johns. Ch. C. 251; Souverbye v. Arden, Doev. Knight, 5 B. and Cress. 668; Eaton v. Scott, 6 Simons R. 31; 2 Hill. R. 660, 641.)

TIT. The mortgage to George Lovett, of June 30, 1843, and the conveyance of March 21,1846, were both effectual, being supported by the estate in Daniel E. Tylee.

IY. The assignment of March 21, 1846, being prior in date to the order of May 26, 1847, taking the bill as confessed against Daniel E. Tylee, the grantor, is not affected by any such subsequent admission by Mm.

The mere filing of the bill by the plaintiff did not bring her within the protection of the recording act, against unrecorded deeds.

Y. The decree should be affirmed with costs.

Catharine Westervelt, at the time of her marriage, in August, 1806, to Daniel E. Tylee, was seized in fee of an undivided half of the premises in question, subject to the life estate of her mother therein. Her mother, in June, 1808, conveyed all her interest in the undivided half of the lots to D. E. Tylee. This conferred on him a right to the rents and profits during such life, which expired in May, 1831.

On the 21st of August, 1822, Daniel E. Tylee and wife conveyed the undivided half of these lots by deed to James Tylee. The deed was acknowledged on the day of its date by both of the grantors, and by the wife separately. On the 23rd of the same August, James Tylee reconveyed the same premises to Daniel E. Tylee by a deed of that date, and acknowledged on that day. These deeds were not recorded until the 28th of September, 1843. According to the Begister’s

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entry, they were left to he recorded by B. S. Brooks, who was then acting for D. E. Tylee, in defending the first entitled suit. That suit was commenced about the 27th of July, 1843, and on that day a subpcena and injunction, in it, were served on D. E. Tylee.

These deeds were not produced on the trial, but were proved by the production of copies duly certified by the Register of this city and county. The deeds were by law entitled to be recorded (1 R. S. 760, §§ 22 & 23,) and a copy of the records was competent evidence of the execution and delivery of the deeds. (Id. 759, § 17.)

The plaintiff insists that there is express proof that the deed to James Tylee was never delivered to him. The testimony of D. E. Tylee shows that it was not formally placed in the hands of James Tylee. It does not appear whether James Tylee was present when the deed to him was executed and acknowledged. The witness was of the impression that the execution of the deed to, and of the deed by him, were simultaneous acts. If each was executed on the day of its date, as must be presumed, inasmuch as each was acknowledged on the day of its date, and before different commissioners, the execution of the one was not simultaneous with that of the other, but a day intervened between the execution of the two.

The deed from James to Daniel E. Tylee, recites the giving of the deed by the latter and his wife to the former, that by it they granted, bargained, and sold to him all their interest and estate in the premises which it purports to have conveyed, and re-conveys them to Daniel É. Tylee, and implies, if not affirms, an assent to, and the acceptance of the deed so recited.

Presumptively, James Tylee must have had in his possession the deed executed to himself, in order to draw the deed which was, on the second day after the date of the first, executed by him.

According to the testimony of the same witness, the object of executing the deed by himself and wife to James Tylee was to have the title to the lots vested in himself, by a reconveyance to himself by James Tylee. That intention was carried into effect by the execution and acceptance of such reconvey

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anee. After such reconveyance, the deed to James Tylee would properly be in the actual custody of Daniel E. Tylee, as a muniment of his title. Under such circumstances, to hold the deed inoperative on. the mere ground that it was never so delivered as to vest the title in James Tylee, more clear and positive proof that there was no delivery, and that it was so understood at the time, should be given, than is furnished by the testimony before us. (Souverbye v. Arden, 1 J Ch. R. 251-2 ; Scrugham v. Wood, 15 Wend. 545 .)

The case before us differs from that of Jackson v. Phipps, 12 J. R. 413, in this, that in the latter the grantee was not informed of the execution of the deed, and of course did not assent to it, in the lifetime of the grantor. In the case before us, the grantee, if not present at its execution and acknowledgment, knew of it, assented to it, and acted on it within two days thereafter.

We do not feel authorized to hold that the deed to James Tylee was not delivered to him when it was executed, and that it was at the time so understood by the parties executing it. They severally acknowledged that they “ executed the same as their respective voluntary act and deed for the uses and purposes therein mentioned,” and the grantee immediately acted upon it as an operative deed.

The presumption that an intended and valid delivery was made, is not sufficiently overcome, to justify us in holding that it was never so delivered as to be valid and effectual between the parties. If the estate was vested in Daniel E. Tylee by the deeds of the 21st and 23d of August, 1822, then the defendants, Chastelain and Turner, have succeeded to it, by the conveyance made to them by D. E. Tylee on the 21st of March, 1846, unless it be true, as the counsel of the plaintiff insists, that D. E. Tylee and those claiming under him, are estopped by the deed of D. E. Tylee and wife to Morris, from denying that, at its date, the title was in Mrs. Tylee, and unless it is also true that the will of Mrs. Tylee in favor of her husband was unauthorized by law, and inoperative and void.

If the estate must be deemed to have been vested in Mrs. Tylee at the date of the deed to Morris, then the title was not subsequently vested in Daniel E. Tylee, unless the will of his

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wife, executed in 1840, is a due execution of a valid power of appointment.

As a mere will devising lands belonging to her in fee it would be clearly void. (2 R. S. 57, § 1.)

It is deemed to be well settled law, that a married woman cannot convey her real estate directly to her husband. There was in this case no ante-nuptial settlement or agreement, by the terms of which the wife was authorized to make an appointment. At the time the trust deed to Morris was executed she was a. married woman, incapable of disinheriting her heirs by a devise of the lands, or by a conveyance of them directly to her husband. The conveyance to Morris, in trust for D. E. Tylee, in default of an appointment by the wife during her life, was, as to such trust, void. (R. S. Vol. i. 728. § 55 & § 49.)

To allow him to take directly under the trust deed, would contravene the rule, that the husband cannot take directly under a deed from his wife.

No person is capable of granting a power who is not at the same time capable of aliening some interest in the lands to which the power relates. (1 R. S. 732, § 75.)

If a married woman cannot convey directly to her husband, can she, by uniting with her husband in a conveyance to a third person, reserve a valid power to appoint to his use? Gan she by such a proceeding confer upon herself power to do an act which the law declares her incompetent to perform, that is to say, the power to appoint it in favor of her husband.

A power is an authority to do some act in relation to lands, in the creation of estates therein, or of charges thereon, which the owner granting such power might himself lawfully perform. (1 R. S. 732, § 74.) Assuming the fee to have been in Mrs. Tylee, this case is one in which she has reserved the power to transfer the estate directly to her husband. She reserved such power, if her will is a due execution of a power reserved in the trust deed. She could not perform any act, the direct effect of which would be, if legal and valid, to vest the estate in her husband. If she could only reserve the power to do such acts as she might herself lawfully perform, then she could not

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reserve any power, by virtue of which she could devise directly to her husband.

By 1 R. S. 737, § 129, no estate or interest can be given or .limited to any person, by an instrument in execution of a power which such person would not have been capable of taking, under the instrument by which the power was granted.

I do not understand the prohibition of this section to refer merely to estates void by reason of an illegal suspension of the power of. alienation (§ 128 id.), but to estates which may be lawfully created, but which the appointee of a power is incompetent to take by deed directly from the person creating or reserving the power.

Daniel E. Tylee, the husband, could not have taken a remainder in fee under the trust deed to Morris, even if it had contained proper and apt words to vest such an estate in him on her death, for the reason that the wife cannot convey directly to him. Being incapable in law of taking any estate under the deed creating the power, no estate can be vested in him by any execution of the power.

§ 130 declares that “ when a married woman, entitled to an estate in fee, shall be authorized by a power to dispose of such estate during her marriage, she may, by virtue of such power, create any estate which she might create if unmarried.”

If this section refers to cases in which a feme sole, owning lands in fee, in contemplation of marriage, conveys to a trustee by a deed to which the intended husband is a party, and reserves the power of granting or devising the fee during coverture, its meaning and application are obvious. In such a case, she could make' a valid appointment in favor of her husband, because she could do that if unmarried, and she would only have reserved the power to do an act which she could lawfully have performed at the time of creating the power (§ 74), and the appointee would be a person who could have taken a fee under the instrument creating the power. (2 Sug. on Powers, p. 23, § 4; Parks v. White, 11 Trs. 222; Bradish v. Gibbs, 3 J. Ch. R. 523.)

Unless this is the proper construction of § 130, then it would follow that a woman during coverture, by uniting with her husband in a conveyance of her lands to a trustee, may under

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the pretence of reserving a power which she did not possess, in fact create a power in her own favor, to convey'the lands by deed directly to her husband. The execution of a valid power may be directed to be made by deed. During coverture she possesses no power to convey by deed as a feme sole, and is destitute of any testamentary capacity. Such power, or capa-; city, cannot be created over lands belonging to herself in fee, by virtue of any agreement made during coverture between herself and her husband. It can only be created by an ante-nuptial agreement between them, at which time she has legal capacity to perform the acts, which by the deed in question she reserved the power to perform, and which she has attempted to perform by making a will in favor of her husband.

It follows that the appointment in favor of the husband is unauthorized by law, and is void, and that he cannot make title under it and the deed creating the power.

Are Chastelain and Turner, who claim title under a deed from Daniel E. Tylee made bn the 21st of March, 1846, es-topped by the deed to Morris, made in October, 1839, from denying that the fee was in Mrs. Tylee, at the date of the deed to Morris ?

The deed to Morris does not recite that Mrs. Tylee then owned the lots in fee, but recites that she inherited them from her father, which is untrue in fact, as her title was by virtue of a devise. -The recital undoubtedly implies that they were her property. It also recites that “ she has heretofore enjoyed the same, and the rents and profits thereof, as if the same were her individual estate,” not, as being her separate estate. The rents and profits from June, 1808, to May, 1831, were not rents and profits to which she had any right, legal or equitable. They belonged to D. E. Tylee,' not by virtue of his marital rights, but as a purchaser from the mother of Mrs. Tylee, who had an estate in the premises during her own life. If Mrs. Tylee enjoyed the rents and profits during that period, it could not have been an enjoyment 'of rents and profits legally, or equitably, her own, hut bnly, as if they had been the rents and profits of lands which belonged exclusively to herself.

These recitals are found in a deed which defeats the obvious intention of the parties to it, and which is inoperative for all

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purposes except to divest D. E. Tylee of his marital rights. The obvious intention of the parties was, that in the event of the death of Mrs. Tylee without making any appointment, the fee should vest in him, that if she executed the power her appointee should take, and by the manner in which it was executed that he should be such appointee. By allowing the deeds of the 21st and 23rd of August, 1822, to operate, full effect will be given to the intention of the parties as evinced by the trust deed to Morris.

Estoppels by implication are not favored in equity, and should not be allowed to preclude a court from ascertaining the truth, unless there is a strict estoppel at law. In a note contained in the second volume of Smith’s Leading Cases (edition of 1852), all the adjudged cases on the subject of estoppels are collected and reviewed, and the principles deducible from them stated.

Two of the rules deduced, are applicable to the facts of this case, viz.:

First. Ho estoppel can arise by deed or record when the allegation in the deed or record is uncertain. “ Eor an estoppel not being favored by the law, ought to be certain to every intent.” (Co. Litt. 352b, 303a.) And therefore if “ a thing be not directly and precisely alleged it shall be no estoppel.” (Co. Litt. 352.)

Second. That estoppels ought to be mutual, is a rule “ laid down by many of our text writers (see Co. Litt. 352. Cro. Eliz. 31). Thus if a man take a lease of his own lands from a married woman by indenture this works no estoppel on either part, because the married woman not being estopped by reason of her disability, the lessee is not.”

We have seen, it is not directly or expressly alleged in the trust deed to Morris, that the fee was in Mrs. Tylee at the time of its date. The most that can be affirmed is, that the recitals in the deed imply or justify the inference that the fact was so. It not being distinctly alleged that she owned the fee, the defendants are not precluded from showing the truth, and proving that the fee was vested in her husband.

The wife of Daniel E. Tylee was not estopped by the deed, from proving the truth in relation to the title, at the time of its

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date. If the deed had recited that the lauds belonged to her husband in fee, she would not have been estopped by it from proving that in fact the fee was vested in herself. She not being estopped by it, her husband is not.

We all agree in the conclusions that the deeds of the 21st and 23rd of August, 1822, are valid and effectual, to vest in Daniel E. Tylee title to the property conveyed by them, and that the recitals in the trust deed to Morris” do not estop Chastelain and Turner from proving that fact, and making title under the deeds. These points being sufficient to dispose of the whole case, my brethren do not deem it necessary to express any opinion upon, or even to consider any other points discussed on this appeal.

While we all agree in the judgment that has been pronounced, and in the reasons that have been given for it, I wish to be understood, as expressly declining to intimate any opinion upon the question, whether a married woman might not, under the provisions of the Revised Statutes, in the article “ Of Powers,” reserve or create to herself, in' a deed executed by her husband and herself to a third person, the power of appointing to his use, or devising to him by her last will, the lands which the deed embraces. It is a question of considerable difficulty, upon which it may hereafter be found that important interests depend, and without rejecting, I am not now prepared to assent to the conclusions at which my brother Bosworth has arrived.

From the construction, however, which my brother has given to § 129, in the article “ Of Powers,” it seems proper that I should now say, that I entirely dissent. As I construe that section, it only means that no person shall take, an estate under a power that, if limited to him by the instrument creating the power, would have involved an undue suspense of the power of alienation; in other words, where its direct limitation would have been void, as too remote. Section 129 merely declares the legal consequence of the rule which § 128 establishes, and is to be construed, precisely as if the word “ hence ” had connected the sections, by following the first, and preceding the second • and both the sections are expressed very nearly in

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the words in which the rule and its consequence will be found to be stated by the most approved text-writers on this abstruse branch of the law, Eearne, Sugden, and Cruise. As I construe the section, therefore, it refers only to the nature of the estate granted, and not at all to any personal incapacity of the grantee, other than that which the rule, declared in § 128, necessarily creates, although it cannot be denied that the words of the section are quite susceptible of the interpretation that my brother Bosworth' has given to them.

In our opinion there is no error in the judgment appealed from, and it must be affirmed with costs.

Cases cited

Jackson v. Perkins 2 Wend. 308 N.Y. Sup. Ct. p. 91
Wood v. Jackson ex dem. Genet 8 Wend. 9 N.Y. Ct. Err. p. 92
Hopkins v. M'Laren 4 Cow. 667 N.Y. p. 92
Scrugham v. Wood 15 Wend. 545 N.Y. Sup. Ct. p. 96