De Pierres v. Thorn — 17 N.Y. Super. Ct. 266

Majority

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Etienne De Pierres and wife, Plaintiffs and Respondents, v. Herman Thorn and wife, Defendants and Appellants.

Headnote

On the 4th of June, 1842, at Paris, in Prance, Etienne De Pierres and Jane Thorn, the daughter of the defendants, in contemplation of a marriage then about to be solemnized between them, entered into a written contract signed by them and by the defendants, as the parties thereto. The defendants and their daughter, Jane Thorn, were citizens of New York, but were actually residing in Paris, and E. De Pierres was a citizen of Prance. The contract was executed according to the laws of Prapce, and by such laws .was valid. By the 6th Article of said contract, the defendants, “ in consideration of the projected marriage,” “ give and constitute in dowry, by advancement on their estate on their demise, to the future wife, who accepts," the sum of 400,000 francs, or $74,211, which they bind themselves jointly and severally to be paid to the future husband and wife, by their estates, one month after the decease of the survivor of them, the donors, but without interest thereon till that epoch." The payment was to be made in New York.

After providing for the contingency of the death of Jane Thorn, without issue, before the defendants, or of the death of her children before her, and in that event reserving to themselves “ the right of the retraction ” therein specified, that article has these clauses, viz.:

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“ For the security and guaranty of the payment of the said sum of four hundred thousand francs, or seventy-four thousand two hundred and eleven dollars, in principal and interest, Mr. and Madame Thorn charge, bind and mortgage, specially, with, foil solidarity between them.

“ The estate already above indicated, called Elmwood, situate near the city of Hew York in the village of Blooming-dale.

“ Mr. and Madame Thorn are the owners of said real estate, having come to them by inheritance, as they do hereby declare, and they bind themselves to prove title thereto regularly within a delay of six months. * *

“ A mortgage shall be registered in favor of the future wife, against Mr. and Madame Thorn, her father and mother; according to express contract mentioned, there will have to be made in said mortgage a reservation of the right of retraction stipulated in favor of Mr. and Madame Thorn.”

Immediately after the execution of said contract, and relying upon its performance, E. De Pierres and Jane Thorn were married in Paris, and have since resided in France.

The defendants continued to reside in Paris until about the 29th of Sept., 1845, on which day they returned to, and have since resided in, Hew York.

The defendant, Herman Thorn, on the 12th of April, 1855, was required to execute, together with his wife, a mortgage of Elmwood, to the plaintiffs, to-secure the payment of the §74,211, according to said 6th Article.

Offers were made by him- to secure the payment of that sum in modes suggested by him, and negotiations in that behalf were continued until they were terminated by the plaintiffs’ refusal to accede to the offers made.

This action was commenced on the 20th of October, 1855.

1. Held, that the plaintiffs were entitled to a judgment compelling the defendants to execute to them a mortgage of Elmwood, to secure the payment of the §74,211 at the time and in the manner and according to the stipulations in that behalf contained in said 6th Article.

2. That the action was not barred by the statute of limitations.

3. That the mortgage contract was an equitable mortgage of the property called Elmwood, and was a conveyance thereof, as defined by section 38 of 1 Revised Statutes, 762, and that the execution thereof by Mrs. Thorn, (she being at that time a non-resident,) could, under section 11, 1 Revised Statutes, 758, be proved as if she were sole, and that such conveyance" as "to her had the same effect as if she were sole.

4. It appearing that after the execution of said contract, and before the commencement of this suit, the defendants had mortgaged Elmwood to secure §70,000, by a mortgage recorded and in full force, it was also held that the further judgment that Herman Thorn should remove the lien of said mortgage within six months after service of a copy of the judgment, was equitable and just.

(Before Hoffman, Pierrepont and Moncrief, J. J.)

Heard, December 13, 1858;

decided, February 26, 1859.

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This is an appeal by the defendants from a judgment entered on the decision of Mr. Justice Boswobth, made upon the trial of the action before him without a jury. It was tried in May, 1857.

The action was commenced by the service of a summons and complaint, on the 29th of October, 1855. It is brought by Etienne De Pierres and Jane Thorn De Pierres (husband and wife) against Herman Thorn and Jane Mary Thorn his wife, to compel the defendants to perform specifically, clauses of contract on their part contained in a written contract entered into on the 4th of J une, 1842, in Paris, (in France,) in contemplation of the marriage then about to be solemnized there between the plaintiffs, Jane Thorn De Pierres being the daughter of the defendants. EtienneDePierres, is the party of the first part to such contract; the said Jane Thorn is the party of the second part to it, and the defendants are also parties. The portion of the agreement preceding the' 5th Article, consists of a description of the parties to it, their domicil and actual residence; a statement of the names of the distinguished individuals present at the execution of the agreement and who signed it as witnesses (the list of which covers over two printed pages); of a declaration of the intended husband and wife “that they intend marrying under the Regime of Community, such as the Code Civil of France establishes, with the exception, however, of the modifications which are hereinafter expressed ” (this declaration being the 1st Article); of a description of the class of “ debts or hypothecations ” chargeable upon each of them in severalty (this being the 2d Article); the items and amounts of property which Etienne De Pierres “ brings in and personally constitutes as dowry ” (this being the 3d Article); and the items and amount of property which “ Mademoiselle Thorn, the future wife, brings into the marriage and constitutes personally in dowry,” (this being the 4th Article.)

The merits of the controversy mainly depend upon the true meaning and effect of the 6th Article. A copy of the entire agreement in the French language is contained in the case; and also a translation of it made by Christian Gr. Eckel, a witness on the part of the plaintiffs, and also a translation of it made by Frederick R. Coudert, a witness on the part of the defendants.

The 5th Article and the 6th Article, as translated by Eckel, read thus, viz.:

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“ Article Fifth. The intended husband binds himself to remit every year to his said future wife, the sum of five thousand francs, which sum is to be paid her from three to three months, destined for the entertainment of the future wife, and her personal expenses, as also to the payment of the wages of her chambermaid, so that she shall need give no account whatever therefor.

“ Article Sixth. In consideration of the projected marriage, Mr. and Madame Thorn, father and mother of Mademoiselle the future wife, give and constitute in dowry, by advancement on their estate on their demise,

“ To the said future wife who accepts,

“ The principal sum of four hundred thousand francs, representing in money of the United States, the sum of seventy-four thousand two hundred and eleven dollars, at the ratio of five francs thirty-nine centimes the dollar, which, they bind themselves jointly and severally to cause to be paid to the future husband and wife, by their estates, one month after the decease of the survivor of them, the donors, but without interest thereon until that epoch.

“ The payment of the said sum of four hundred thousand francs is to be made in New York in money of the United States, and according to the rates of the day.

“ To count from the day of the demise of the survivor of Mr. and Madame'Thorn, donors, the sum of four hundred thousand francs will produce interest at the rate of five per cent per annum of full right, and so that it shall be unnecessary to make demand thereof.

“Mr. and Madame Thorn, the donors, expressly reserve to themselves the right of the retraction of said principal sum of four hundred thousand francs in case that Mademoiselle, the future wife, should happen to die before them without leaving children, and even in the case that such children should die before her without nevertheless, that this right of retraction shall do any harm to the effect of the donation of a moiety in usufruct for life, which the future husband and wife are to make to one another by the execution of these presents.

“ For the security and guaranty of the payment of the said sum of four hundred thousand francs, or seventy-four thousand and two hundred and eleven dollars in principal and interest,

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Mr. and Madame Thorn charge,' bind and mortgage specially with Ml solidarity between them—

“ The estate already above indicated, called Elmwood, situate near the city of New York, in the village of Bloomingdale.

“ Mr. and Madame Thorn are the owners of said real estate, having come to them by inheritance as they do hereby declare, and they bind themselves to prove title thereto regularly within a delay of six months.

“ They declare that the said estate is of a value of about two hundred thousand dollars, making in France the sum of more than one million of francs, and that the same is only mortgaged to an amount of twenty-four thousand dollars or one hundred and twenty-nine thousand three hundred and sixty francs, about which they owe to said demoiselle, their daughter, the future wife, as has been stated here above.

“A mortgage shall be registered in favor of the future wife against Mr. and Madame Thorn; her father and mother; according to express contract mentioned, there will have to be made in said mortgage a reservation of the right of retraction stipulated in favor of Mr. and Madame Thorn.”

The 6th Article, as translated by Coudert, reads thus, viz.:

“ Article 6th. In consideration of the contemplated marriage, Mr. and Mrs. Thorn, father and mother of the future bride, constitute and give as her marriage portion by way of advance on the estate which they will leave on their demise to the said future wife, who accepts, the principal sum of four hundred thousand francs, making in money of the United States the sum of seventy-four thousand two hundred and eleven dollars, at the rate of five francs thirty-nine centimes to the dollar, which they bind themselves jointly and severally to cause to be paid to the future couple by their estates one year after the decease of the survivor of them, the donors, and without interest until that epoch.

“ Payment of .said sum of four hundred thousand francs shall be made at New York, in- money of the United States and according to the rate exchange at that day. From the day of the decease of the survivor of Mr. and Mrs. Thorn, donors, the said sum of four hundred thousand francs shall bear interest, as a matter of right and without any demand being, necessary, at the rate of five per cent per annum.

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“Mr. and Mrs. Thorn, donors, expressly reserve to themselves the reversion of the said principal sum of four hundred thousand francs in case Miss Thorn, the future wife, should die before them without issue, and even in case said issue should die before them, said reversionary right, however, is not to prejudice the effect of the donation of a moiety in usufruct, which the future couple are to make to each other by these presents,

“ As security and guaranty for the payment of the said sum of four hundred thousand francs or seventy-four thousand two hundred and eleven dollars principal and interest, Mr. and Mrs. Thorn charge, bind and mortgage specially with full solidarity between them the property already mentioned above, called Elm-wood, situated near Mew York in the village of Bloomingdale.

“ Mr. and Mrs. Thorn are the owners of the said- property by inheritance, and as such they declare it to be, and bind themselves within six months regularly to prove their title thereto,

“ They declare that the said property is of the value of about two hundred thousand dollars, making in France over one million francs, and that it is mortgaged for twenty-four thousand dollars or one hundred and twenty-nine thousand three hundred and sixty francs or thereabouts, due to the future bride, their daughter, as already mentioned above,

“ There shall be made an entry of record for the benefit of the future wife, against Mr. and Mrs. Thom, her father and mother, and by express agreement there shall be made mention, in said entry, of the reversionary right stipulated in favor of’Mr. and Mrs. Thorn.”

This suit is brought to compel the defendants, and the complaint prays for a judgment compelling them to execute and deliver to the plaintiffs a mortgage of the real estate called “ Elm-wood,” to secure the payment of the moneys stipulated by said 6th Article, to be paid, and as therein agreed to be paid.

' The answer is, in substance, a general denial of the allegations of the complaint; and avers that the alleged agreement is not obligatory by reason of not being so executed as to satisfy the Mew York statute of frauds.

It sets up as a separate defense, that none of the alleged causes of action accrued within ten years next before the commencement of this suit.

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Ferdinand Armand Landon, formerly a Notary Public in Paris, (who was examined under a commission,) testified, that he drew up the marriage contract in question, read the same to the parties, and received their signatures to it; that it was signed in the abode of Mr. Thorn, in Paris, on the day mentioned in the contract ; that he was present at the execution of the contract in his capacity as Notary Public; that he acted in the capacity of Notary, appointed by the King, according to the French laws; that his name was inscribed at the head of the said contract or agreement, and he signed the same in his capacity of Notary; that he remained the keeper of the said contract, according to the French laws; that his successor Mr. Descours now holds the same; the deposit is permanent, and such a contract or agreement must remain in the custody of his successor or that of any other who may succeed him in the office; the original contract cannot be removed or sent abroad; that Mr. and Mrs. Thorn, and Mr. and Mrs. De Pierres signed the contract in his presence; the persons who signed as witnesses, not being the parties bound by the contract, their signatures being only honorary, and he could not affirm that they all signed in his presence. “ The copy exhibited to me is signed by the Notary holding the original minute, and is equally valid as the minute itself.” The original is called the “minute.”

That he was required by law to keep and did keep a book or register called “Repertoire,” in which was entered on the day when the contract was executed and signed, an entry stating its nature, its date, the names of the parties, their business and residence. The whole of it is not copied into the “ Repertoire.”

It was proved that the copy (in French) produced on the trial was a true copy of the original contract.

A correspondence between A. Mann, Jr., on behalf of the plaintiffs, and John B. Stevens,'as attorney of Herman Thorn, was read in evidence, some portions of which are recited in the following opinion, delivered at Special Term.

Mr. Stevens, in his letter to Mr. Mann of the 7th of June, 1855; says: “ There is now upon the property (Elmwood) a mortgage of seventy thousand dollars to the New York Life Insurance and Trust Company.”

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An abstract of the title to Elmwood, and of the incumbrances thereon, made by Lucius Robinson as Referee, on the 18th of June, 1853, was read in evidence by consent, which abstract states that there were “ no general liens by judgments or decree, nor lis pendens,” but states that there was an “ indemnity mortgage,” recorded June 7th, 1833, of $72,222.22, “payable on or before the death of Mary Thorn,” and mentions no other particulars respecting it.

When the plaintiffs rested their case, the defendants’ counsel moved to dismiss the complaint as to Jane Mary Thorn, and also as to Herman Thorn, among other grounds—

As to Jane Mary Thorn, that she was incompetent to enter into the marriage contract.

As to both defendants, that there is no evidence of the alleged contract.

That there never was a tender of any mortgage, or conveyance in the nature thereof, to either of the defendants with request to execute the same.

That the alleged contract, as respects real estate, is void under the statute of frauds.

That as the alleged contract is dated in June, 1842, and as the defendants arrived in this country on the 29th of September, 1845, and have ever since here resided, which facts were admitted by plaintiffs’ counsel, and as this suit was not commenced until October 29th, 1855, the plaintiffs could not maintain this action.

The motion was denied by the Court; to which decision and • ruling the defendants then and there duly excepted.

The facts found by the Judge, and his conclusions of law, are as follows, viz.:

“ On the 4th of June, 1842, at the city of Paris, in France, an agreement in writing, and written in the French language, was entered into before Ferdinand Armand Landon and Pierre Charles Matthieu Piet, Notaries, a copy of which, translated into the English language by Christian Gr. Eckel, is hereinbefore set forth, and is substantially a correct translation and copy of said marriagemtract.

“ At the time of entering into said agreement, the plaintiff, Etienne De Pierres, was a citizen of and resident in France, and

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unmarried. The plaintiff, Jane Thorn, was at that time residing in France, and was unmarried, and is a daughter of the- defendants, Herman Thorn and Jane Mary Thorn his wife; both defendants also at that time resided in Paris aforesaid.

“ The said agreement in writing was signed by both of the said defendants on the said 4th of June, 1852, in Paris aforesaid, before the said notaries, and was executed in conformity with the laws of France.

“ The plaintiffs, Etienne De Pierres and Jane Thorn, subsequently and on the 6th of June, 1842, intermarried, and their marriage was solemnized in Paris aforesaid, and such marriage was solemnized in consequence of said marriage contract, and in reliance by the plaintiffs that the 'defendants 'would do and perform all things which- in and thereby they had agreed to perform.

“ The property described in the said agreement as Elmwood, is-correctly described in the complaint in this action.

“ The defendants continued to reside in Paris aforesaid, until about the 29th of September, 1845, on which day they arrived in the State of Hew York, where they have since continued to reside.

“ On the 12th of April, 1855, a letter was sent to the defendant, Herman Thorn, by Mr. A. Mann, in behalf of and by authority of the plaintiffs, requiring the defendants to execute to the plaintiffs a mortgage of Elmwood, to secure the payment of $74,211, according to the terms and conditions of the said marriagé contract. In answer to such request, the defendant, Herman Thorn, through his authorized agent, M. J. B. Stevens; proposed to convey the said property to a trustee intrust, and upon the trusts, among others, to sell such property, and pay to"" the said plaintiffs such sums as should become payable -to them under the said marriage contract, and when the same, according to the terms of said marriage contract, should become payable.

“ negotiations on this point were continued between Mr. Mann, on behalf of the plaintiffs, and Mr. Stevens, on behalf of Mr. Herman Thorn, which terminated in Mr. Mann’s refusal to accept of the proposed trust, and in Mr. H. Thorn’s refusal to give the mortgage requested.

“ This action was commenced on the 29th of October, 1855. Before it was commenced, and after the said marriage contract was executed as aforesaid, the defendants executed to the Hew

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York Life Insurance and Trust Company, a mortgage of the said premises, mentioned in the said marriage contract as Elmwood, to secure the payment of $70,000, which mortgage yet exists of record in full force, and is wholly unsatisfied.

“ The said marriage contract is valid by the laws of France, where it was made, and obligates each of the defendants to do and perform all of the acts which they severally thereby undertook and agreed to perform.

“ The plaintiffs have a right to require the execution by the defendants of a mortgage of the property called Elmwood, to secure to the plaintiffs the payment of the money stipulated by the marriage contract to be paid by the defendants, and the payment of such part of the $74,211 as may become payable, and when, according to such marriage contract, the same shall become payable, and to prevent them from being deprived of such security for the payment of said money, as such properly unincumbered by any lien subsequent to the date of the marriage contract would furnish, by the creation of other legal liens thereon, by the defendants, or by either of them.

“ Judgment will be entered that the contract be specifically performed, and that the defendants execute to the plaintiffs a mortgage of Elmwood, the form and terms of which judgment will be settled, on notice, to conform to the decision made herein.” The defendants formally and severally excepted to the several findings of fact and conclusions of law.

A judgment was entered in conformity to the decision, which judgment contains this provision, viz.:

“ And it appearing that the said defendants have already exe- . cuted a mortgage for the sum of seventy thousand dollars on the property hereinbefore described, and which is a lien thereon, and the execution and delivery of which mortgage is against the true intent and meaning of the said stipulation in the marriage contract or agreement as above referred to, it is therefore further ordered and adjudged that the said defendant, Herman Thorn, do, within six months after being served with a copy hereof, remove or extinguish said mortgage, so that it shall not be a lien on said premises prior to the mortgage herein directed to be executed by said Herman Thorn and Jane Mary Thorn his wife, and in the same manner that he remove or extinguish any other

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mortgage which may be a lien on said premises, and executed, or caused to be executed by them, since the execution of the marriage contract or agreement containing the stipulation above referred to.”

The following opinion accompanied the decision made at Special Term:

Boswobth, J. It is satisfactorily proved that each of the defendants signed the contract in question, and that it was drawn by and entered into, before the officer prescribed by the laws of France, in respect to the drawing, and solemnizing of contracts of that nature.

By its terms, the defendants contracted to secure the payment of the stipulated dowry, at the time and on the events specified, by a mortgage ofElmwood.”

The statute of frauds interposes no barrier to the plaintiffs’ right to recover. The contract was made on a valuable consideration, and has been fully performed on the part of the plaintiffs, and of course Mr. Thorn can be required to perform it specifically. In respect to this contract and its specific performance, Mrs. Jane Mary Thorn will be treated in equity as a femme sole. (2 R. S., p. 135, § 10; 2 Story’s Eq., ch. 36, p. 596.)

The statute of limitations is set up as a defense. The contract was executed in Paris, France, June 4, 1842.

The defendants returned to the State of New York in' September, 1845, .and since then have resided in this State. This action was commenced in October, 1855.

Application was made to Mr. Thorn, in April, 1855, to perform the contract specifically. '

The defendant, Herman Thorn, answered another application on the same subject, .of the date of May the 21st, 1855, through his attorney, Mr. Stevens, who, by a note addressed to plaintiffs’ attorneys, of the date of June the 7th, 1855, says:

“ In answer to your letter to Herman Thorn, Esquire, of 21st of May last, I am directed by him to state, that irrespective of any legal obligation on him, under and by the referred to agreement, and leaving that question out of consideration, his inclinations prompt him to secure to Madame De Pierres the amount, mentioned in said agreement, on Elmwood.”

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Then followed a proposition to secure the amount by a charge of it upon Elmwood, by an instrument in form and effect different from a mortgage.

The parties were occupied in considering this suggestion, and instruments prepared with a view to carry it into effect, until negotiations ended in disagreement.

The proposed instrument for securing the payment of the sum stipulated in the marriage contract, was a deed of Elmwood to a trustee, in trust, and upon trust, designed to secure the result stipulated by the marriage contract.

Under date of September the 27th, 1855, Mr. Thorn, by his attorney, wrote to the plaintiffs’ attorneys as follows, viz.:

“September 27th, 1855.

“ Messrs. Mann & Rodman :

“ Gentlemen—Col. H. Thorn desires me to say in reference to the agreement between him and Baron De Pierres and wife, that he is ready to execute the instrument submitted to you as the attorneys of De Pierres. He conceives the De Pierres will be fully thereby secured; that the agreement will be literally and in spirit carried into effect, and that in case of necessity for sale he will avoid obstacles in closing sales with respective persons, which would exist in giving the mortgage to the Trust Company, who could not exercise any discretion as an individual might. In his behalf, I therefore tender and offer in performance of the marriage contract, an execution of the submitted instrument of Col. Thorn and wife.

“ Yours obediently and respectfully,

John B. Stevens,

“Attorney of H. Thorn.”

The contents of this instrument are not disclosed by the evidence.

These communications are a full acknowledgment, in writing, of a then existing obligation to execute the special provisions of the marriage contract, and contain a tender of that which the parties claimed to regard as an execution of it literally, as well as in spirit.

But the time of payment of the sum contracted to be secured has not yet arrived, and the contract is therefore in force as to the debt or sum to be advanced and the promise to pay it.

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The 6th Article of the marriage contract, contains this clause, viz.:

“ For the security and guaranty of the payment of the said sum of four hundred thousand francs, or seventy-four thousand two hundred and eleven dollars in principal and interest, Mr. and Madame Thorn charge; bind and mortgage specially with full solidarity between them, the estate already above indicated, called Elmwood, situate near the city of New York, In the village of Bloomingdale. ”

This is an equitable mortgage of Elmwood, to secure the payment of the stipulated sum. That sum is to be paid in the future, and the equitable mortgage created by the clause quoted is still in force; and the plaintiffs have a right unimpaired by the statute of limitation to be protected by the execution of an actual legal mortgage, which will prevent their equitable claim from being destroyed by voluntary mortgages or conveyances to purchasers in good faith.

By the 6 th Article of the marriage contract, Mr. and Madame Thorn declared themselves to. be the owners of Elmwood, and bound themselves, to prove title thereto regularly, within a delay of six months; that it was of the value of $200,000, and was incumbered to the amount of only $24,000, and that such mortgage was in favor of Demoiselle Thorn, the then intended, and present wife of Baron De Pierres. .

To avoid any breach of the marriage contract, the sum, which, in consideration of the future and then intended marriage of their daughter, the defendants promised to pay the plaintiffs, and to secure to be paid by a mortgage of Elmwood, should, be made, by the execution of a formal mortgage, a specific legal lien, which can be enforced as a lien prior to all incumbrances,- other that recited in the marriage contract as then existing. '•

The letter of the 7th of June, 1855, already referred to, states that, at its date, Elmwood was mortgaged to secure the payment of $70,000.

This, of itsélf, will prevent the plaintiffs from having the full benefit of such a security upon Elmwood, as the marriage contract in terms creates, and as the defendants by it, agreed to secure by a formal mortgage.

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The fact of such a mortgage having been given, and the hazard of others being executed which might disable the plaintiffs from realizing from Elmwood any security for the payment of the sum agreed to be paid, are sufficient to justify the interposition of the Court for the protection of the plaintiffs.

Even if such á contract, and in such form, had been made in this State; as it has been in part executed, there would be no obstacle in the way of requiring the defendants to execute a legal mortgage to preserve to the plaintiffs their equitable rights under the contract.

-If the estate is that of Madame Thorn, she was capable in equity to charge it, and has done enough to accomplish that result.

If that of Colonel Thorn, the same result would be effected as to her contingent interest in it.

It is for the plaintiffs to consider whether some instrument which the defendants may be willing to execute, will not be a better protection than a mere mortgage.

They are entitled, however, to a judgment, that the provisions of the contract be specifically performed. The judgment must be settled on notice to the adverse party. The question of costs is reserved until that time, when the parties will be heard in relation to it.

Judgment having been entered, the defendants appealed from it to the General Term.

F. B. Cutting, for appellants, (the defendants,)

made and argued a distinct set of points for each defendant, as follows.

POINTS ON BEHALF OF HERMAN THORN.

The judgment of the Special Term should be reversed as to the defendant, Herman Thorn.

I. The evidence did not prove a due execution of the alleged marriage contract.

II. If signed by Mrs. Thorn, it imposed no legal obligation upon her; the instrument purports tobe joint and several on the part of Mr. and Mrs. Thorn; if void as to Mrs. Thorn, a specific performance should not be decreed as against him.

IIL The alleged contract, as far as it attempted to charge or incumber real estate, is void by the statute of frauds. (2 R. S., 134, § 6.)

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The description of the real estate is void for vagueness and insufficiency.

IV. If any cause of action ever existed against the defendants, it was barred before the commencement of this action' by the statute of limitations. (2 R. S., 301, 302, § 52; 5 Ves., Jr., 720, note 6.)

1. The right existed (if at all) from the time of the execution and delivery of the instrument.

2. Mr. Thorn had been a constant resident of this State during more than ten years prior to the commencement of this action.

3. He has not, by any intermediate promise or act, waived or relinquished this defense.

V. The judgment should be set aside, because it grants relief not asked for—it grants a relief beyond the cause of action. The complaint is for the specific performance of an alleged agreement.

The judgment for the removal of the mortgage to the Trust Company should be set aside; because,

1st. It is a relief not within the pleadings, and not sustained by competent testimony in the cause.

2d. It is a relief which, in an action for specific performance, could not be granted, and a relief only grantable in an action in aid of a specific agreement.

3d. The pleadings do not ask it—the plaintiff has not demanded any amendment of pleadings to conform the judgment to facts proved.

VI. Whether in any case a specific performance should be decreed, rests in the sound judicial discretion of the Court. In the exercise of its jurisdiction, it will have an eye to substantial justice between the parties, and if it shall interfere to enforce the contract, it will do so in a manner that will not work any unnecessary hardship upon, or damage to the defendants. (4 Kent’s Com., 493-495; 1 Sug. on Vendors, 235, and note; 1 id., 238; Pigg v. Corder, 12 Leigh R., 69; Carr v. Duval, 14 Peters, 77.)

VII. The judgment of the Special Term is erroneous; because,

■ 1. It goes beyond the terms of the alleged marriage contract, and orders the defendants to execute, acknowledge and deliver to Mrs. De Pierres a conveyance, by way of mortgage, of the land described in the judgment; whereas the last clause of the 6th

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Article of the said contract, merely declared that an entry of record (inscription) of that instrument should be made.

The Special Term was misled by the erroneous translation by Mr. Eckel of this part of the 6th Article. (1 Trop., 405, art. 2106.)

The finding of the Special Term that Mr. Eckel’s translation is correct, is erroneous.

The answer to the interrogatories corroborate Coudert’s translation of the latter part of the 6th Article of the marriage contract.

The words 11II sera pris inscription,” were translated by Eckel: “Amortgage shall be registeredby the witness Coudert: “There shall be made an entry of record.”

The answer to the 8th, 9th and 10th cross-interrogatories, show that the entry of record was, as to this contract, made in the special register belonging to the Enregistrément de Eomaine.

The witness Descours says this formality was complied with.

2. To execute and record a mortgage of the tenor set forth in the judgment will produce ruinous results and a probable sacrifice of the whole property.'

The letters of Mr. Stevens state and explain the disastrous consequences that will ensue fróm it. These letters were read in evidence by the plaintiffs, and are competent proof of the facts contained in them.

3. The modification proposed by Mr. Stevens, on behalf of Mr. Thorn, was reasonable and a substantial compliance with the spirit and intent of the contract. If the Court shall interfere in favor of the plaintiffs, it should direct a form of security that will not endanger the safety of the estate, or necessarily entangle it.

VIII. It was the duty of the plaintiffs, before commencing the action, to have prepared, and tendered to Mr. Thorn for execution, such an instrument as they claimed they were entitled to.

IX. The decree of the Special Term should be reversed.

POINTS ON BEHALF OF MART JANE THORN.

The plaintiffs did not prove any cause of action as against Mrs. Thorn, and as to her, the complaint should have been dismissed by the Special Term.

I. The execution of the alleged marriage contract by Mrs. Thorn was not properly proved. No subscribing witness was

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examined. The notaries were not personally acquainted with her, and did not prove an execution by her of the contract.

II. If the evidence that Mrs. Thorn signed the paper be sufficient, the' mere act of signing it cannot prejudice her right to dower in the property called Elmwood, because there is no proof of her assent evidenced by her acknowledgment thereof in the manner required, by law to pass the estates of married women. (1 R. S., 742, § 16; id., 758, §§ 11 and 12.)

The instrument and its execution being ineffectual to- affect her interest in real estate, she should not be ordered to join in a mortgage thereof to the prejudice of her- right of dower.

III. The alleged instrument, as far as it attempts to incumber said real estate, is void by the statute of frauds. (2 R. S., 134, § 6.)

IV. The description in the alleged instrument of “ a property called Elmwood, situated near the city of Kew York, in the village of Bloomingdale,” is insufficient. Its vagueness cannot be helped out by parol. (2 R. S., § 6.)

If parol evidence were admissible for that purpose, no proof has been given which identifies the property intended. In this respect the finding of the Special Term is not authorized by the testimony.

V. If the execution of the instrument by Mrs. Thorn had been proved, still being at the time a feme covert, she had no capacity to contract an obligation for the payment of money jointly and severally with her husband, as stipulated in the 6th Article of the-marriage contract. (2 Roper, Husb. and Wife, 235, 238; Jackson v. Vanderheyden, 17 Johns., 167 ; Carpenter v. Schermerhorn, 2 Barb. C. R., 314.) .

1. The money promised to be paid was not for the benefit of herself or her separate property.

2. There is no averment in the complaint that she was seized or possessed of any separate estate, real or personal, or that she contracted with reference to any separate estate.

3. The evidence proves that the property called Elmwood belonged to Herman Thorn.

The recital in the alleged contract, (art. 6,) that Mr. and Mrs. Thorn were the owners of the said property by inheritance was an error.

. VI. If the plaintiffs ever had the right to maintain an action against Mrs. Thorn, to compel the specific performance of the

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alleged agreement, such, right was barred by lapse of time prior to the commencement of this suit. (2 R. S., 301, 302, § 52; Milward v. Earl of Thanet, 5 Ves., Jr,, 720, note b.)

1. The right existed (if at all) from the time of the execution and delivery of the instrument. '

2. Mrs. Thorn had been a .constant resident of this State during more than ten years prior to the commencement .of this action.

3. She has not by any intermediate promise or act waived or relinquished this defense. .

The correspondence between Messrs. Mann and Rodman and Mr. Stevens is not evidence against her. -

The 7th, 8th and 9th points on behalf of Mrs. Thorn, are in substance the same as the 5th,- 6th, 7th, 8th and 9th points made for Mr. Thorn.

Abijah Mann, Jr., for the respondents (the plaintiffs).

I. The 6th Article of the marriage contract involved in this case, is a legal and binding contract by the laws-of France, and by the principles of equity jurisprudence in the State of New York is an equitable mortgage and an agreement to execute a mortgage and record the same in New York on the property referred to therein, called “ Elmwood,” situate in the county of New York. The object of the contract was to give a lien upon the property for the-security of the advancement in the contract, in consideration of the marriage of the plaintiffs. (See English translation of Napoleon Code, §§ 1440, 1547, 1394, 1124, 1548, 1538, 1544, 1545, 1546, 1431, 1432, 1438, 1439, 1440, 1547, 1125.) The Code Napoleon was admitted in evidence by consent.

II. Madame Thorn is equally bound by the contract with her husband, -both by the French law and the principles of equity in the State of New York. (Stead v. Nelson, 2 Beav. R, 245, 248; Story on Eq., 3d ed., §§ 1397, 1398, 1399, 1399a.; Story’s Eq., ch. 36, p. 596, referred to in Judge’s opinion; Jaques v. The Methodist Episcopal Church, 17 J. R., 548; Gardner v. Gardner, 22 Wend., 526 ; Jaques v. Methodist Episcopal Church, 17 id., 592, 593 .)

III. The defendants, in the marriage contract, declare themselves to be the owners of the property called “Elmwood,” by inheritance, and bind themselves to prove their title. This, by

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the French law, is a warranty of title; and independent of that admission, by the French law a contract of marriage and advancement is a warranty of title, and the defendants are estopped, both by that law and the principles of equity in this State, from denying their title. In the answer they also declare the property is their own absolute property. (See Code Napoleon, §§ 1547, 1546, 1440.) “ Those who settle a dowry are bound to warrant the object settled.” (Id., §§ 1547, 1440.)

IY, The property mortgaged is described in the contract as “ the estate above indicated, called Elmwood, situate near the city of Hew York, in the village of Bloomingdale,” and is particularly described at folio 13 in the ■ complaint, being the same description as in the judgment. This description is admitted by the answer to be correct.

Y. At folio 272 of the Case, and thence following, an abstract (admitted by consent in evidence), is set forth. It states that there is a mortgage by defendants recorded in Hew York, on the same property, for $72,222.22, recorded 7th June, 1853. .

At folio 221 of the Case, it is stated to be admitted by the defendants that there was'an existing mortgage for $70,000, meaning the above, to the Trust Company, on the property, which was executed by the defendant, Herman Thorn, since the marriage contract. This fact appears also at folio 210 of the Case, and is found by the judge as a fact at folio 284 of the Case. Such being the case, the plaintiffs are entitled to apply to the Court to have a legal mortgage executed, to be recorded in order to prevent the defendants from committing other frauds on the marriage contract, by conveying or mortgaging the property and defeating the security intended by the contract. And this, even, independent of the provision in the contract, by which the defendants agree to execute and record a mortgage in favor of the plaintiff, Mrs. De Pierres.

YI. The provision in the 6th Article of the marriage contract, stipulates that “ a mortgage shall be registered, in favor of the future wife, against Mr. and Madame Thorn, and mention (by mistake in Case, mentioned is used), will have to be made in said mortgage of the reservation of the right of retraction stipulated in favor of Mr. and Madame Thorn.” (See Eckel’s translation on part of plaintiff.)

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The contract, therefore, having been executed before a Notary, and necessarily by law being executed before a Notary, those facts rendered it necessary that the Notary should make an inscription or minute of it in his repertoire, consequently there was no necessity of inserting in the contract a special provision that this inscription or minute should be made. This is conclusive evidence that Eckel’s (the plaintiffs’ witness) translation of the contract is correct, and that the translation of Coudert (the defendants’ witness), is incorrect. The translation by plaintiffs’ witness, that “ a mortgage shall he registered.,” is consistent with the plain intention of the parties, the .defendants being Americans and the property in New York, and removes the suspicion that the defendants intended a fraud on the plaintiffs.

Eckel (plaintiffs’ witness), ■ says, “ inscription . hypothecate ” means “ mortgagethe word “ hypothecaire ” is omitted. But take “ inscription” with what precedes immediately in the contract, and it is manifest the parties intended a mortgage to be recorded. It is pretended on the part of the defendants and their witness, that the object of an inscription, by the French law, is to give notice to creditors. But surely, in the present case, an inscription in that sense in France would be perfectly nugatory, the property being in New York. It is plain, therefore, a record of the mortgage in New York was intended, that being the only notice to creditors and others that would be available.

VIL The statute of frauds does not apply to this case. The contemplated marriage of the plaintiffs was a valuable consideration, and has been performed. The statute of frauds enacts, “ That it shall not be construed to abridge the powers of Courts of Equity to compel the specific performance of agreements in case of part performance.” (2 R. S., 4th ed., 316, § 10.)

YIII. The contract was executed by both defendants. The Notary who proves it subscribed his name as a witness. The original remains a record with the Notary in France.

IX. The statute of limitations does not apply to this case; because the plaintiffs have a right at any time to apply to the Court for the purpose of preventing the defendants from committing a fraud on plaintiffs’ equitable rights. The contract is a continuing one. And again, the statute does not apply, because the mortgage to be registered was for the benefit of Mrs. De Pierres and

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in her name. Mo cause of action accrued until the marriage of the plaintiffs. The contract could not be enforced till then, and the plaintiff, Mrs. De Pierres, was then under the disability of coverture, which is excepted from the statute. .

Even if that were not so at the time of the execution of the contract, the defendants were in France and continued there in fact and presumption of law, in the absence of evidence to the contrary, up to the time of the marriage. Consequently, Mrs. De Pierres was then under the disability of coverture, and the defendants, being in France, the statute would not begin to run, and at the time the defendants arrived in Mew York, to wit, on the 29th September, 1845, when the cause of action accrued in this State, the disability existéd.

Again, if the statute did apply, the correspondence between the plaintiffs and defendants, as set forth in the Case, has waived the statute. (2 R. S., 4th ed., 498; also 3d ed., 395.)

The contract was signed in Paris, and marriage immediately followed. The defendants returned to the State of Mew York in'September, 1845.

.X. Mo tender of the mortgage was necessary to be made to the defendants after their refusal to execute one; and a tender was in fact made. (Bellinger v. Kitts, 6 Barb., 273 .)

And especially where the plaintiffs • have executed their part of the agreement.

XT. The facts found by the Judge who tried the cause, are' all sustained by the evidence. At all events, there are sufficient facts found and sustained by the evidence to justify the judgment made in the case.

I. I shall first examine the case in regard to the defendant' Herman Thorn. The counsel has presented points upon his position under the contract, and as to the judgment'against him, separate from the case of his wife; and some distinct questions necessarily arise.

1. The execution of the instrument is sufficiently proven.

I am satisfied by the evidence, that everything necessary to authenticate it, by the law of France, was observed. Even if it is not the rule that-proof of the execution of an instrument suf

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ficient at- the place of execution, is sufficient where it is to be enforced, yet we have the Notary deposing that he saw the parties sign the document; that his own name is written at the beginning of the contract, (the mode of attestation in use in France,) and that he signed if in his capacity of Notary Public. (See Brown v. Thornton, 1 Nev. & Perry, 343; 6 Adol. & Ellis, 185; Alivon v. Furnival, 1 Crom., Mees. & Rosc., 277; in the matter of Marianne Clericetti, 30 Eng. L. and Eq, R., 532; Regina v. Newman, 18 id., 113.) It is proven that the original cannot be removed from the proper office except by an order of a French tribunal, and that transcripts attested as in the present case are admitted in evidence throughout the- Empire.

2. I regard the question to be wholly immaterial, whether the translation of the last clause of article 6 of the contract is such as the plaintiffs, or such as the defendants claim it to be. Whether it stipulated for a mortgage to be recorded in New York, (and hence to be duly acknowledged or proven,) or merely for the registration in the proper office in France, as seems alluded to by the witness Descours, is of no importance. Herman Thorn, in the clearest language “charged, bound and mortgaged ” the property in question.

In the view of a Court of Equity this was an effectual mortgage against him, and against all volunteers under him, and upon the settled doctrine of such a Court, the party would be compelled to execute any instrument, and do any act, necessary or proper, to give effect at law to-what was thus effective in equity. (Varick v. Edwards, 1 Hoff. R., 391, and cases.)

Ellis v. Nimmo, (1 Ll. & Goo. t. Sug., 333,) deserves particular attention. There was an agreement in writing signed by the father, after the marriage of his daughter, to secure her £50 per annum out of the rents of a farm, and to execute the necessary deed to that effect when called on. Lord Chancellor Sugden compelled a specific performance. He said, “ The Court requires a sufficient consideration, and I find a provision for a wife or child is held a meritorious consideration proper to call into action the power of a Court of Equity in aid of a defective execution or surrender. Now, in my opinion, it makes no difference whether that power is required to aid a defective surrender, or to enforce an agreement resting in fieri. I have a contract before me which

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I ain bound'to enforce, if there is a sufficient consideration. The consideration is such as would enable the Court to remedy even a defective settlement, where there is no contract. I think it sufficient a fortiori to sustain an actual contract.”

Again he says, “ Upon a covenant "to stand seised, for the benefit of a wife or . child, equity held such a consideration sufficient to bind the estate. That-was a use before the statute, .that use the statute executed and turned into a possession; still it rested upon the original equity. A covenant to stand seised was merely an agreement founded on a good or meritorious consideration, and the statute executed'that agreement.”

Had the effectual charge or mortgage in this case been a covenant to charge or mortgage, the relief, sought would- have been necessarily granted. . It would be strange if the case was weak-: ened by the. absolute nature of the act and. force of the language employed.

3. The next,question ! shall examine, of those raised by the counsel of the defendant H.- Thorn, - relates to the effect-of the statute of limitations. .

The contract-was dated the 4th of June, 1842, and the marriage took place two days afterwards. I consider that the contract did not go into effect so as to give any right of action under it until the marriage brought its consideration into force.

The defendants continued to reside -in Paris until sometime in 1845. On' the 29th of September of that year they .arrived in New York, in which place they have since continued to reside. The present action was commenced on the 29th of October, 1855. The plaintiffs have resided since their marriage in France.

The disability of the plaintiff, Madame De Pierre, existed when .the marriage contract went into effect, and. now continues. The statute never began to run against her. The question as to ■ the husband is of more uncertainty.

The counsel of the defendants refer to cases of which Milward v. Thanet, (5 Ves., 720, n. b.,) is an example. “They were cases of bills for specific performance, in which a peculiar rule prevails, that the party seeking an execution of a contract must show himself ready, prompt and eager.

Since the Revised Statutes of 1830, covering every imaginable 'casé of relief in a Court of Equity, and fixing a-statutory limita

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tion in each, I have supposed that the doctrine of a Court of Chancery as to lapse of time, and the analogy to the old statutes of limitation, was at an end. The Legislature had substituted a definite and comprehensive rule.

The Code has left this case to be governed by the provisions of the Revised Statutes. The right of action accrued before it went into effect. (§ 78.)

■ It was a case of exclusive jurisdiction of a Court of Equity before the Code, and the 52d section of the statute would apply to it. (2 R. S., 301.) I pass over the question whether the 51st section could bear upon the case, on the ground of a discovery of the alleged fraud by incumbering the premises with the mortgage of $70,000. .This remark' may, however, be made, that the pleadings contain nothing relating to this incumbrance. It seems to have been discovered during the proceedings. We do not know its date, nor when it was discovered by the plaintiffs. This would be important, and should be proven or admitted. (Boggs v. Rathbone, 4th June, 1849, before Duer, Campbell and Mason, S. C., General Term, 10th December, 1858, Superior Court.) I do not perceive how this matter can now be considered, in any bearing, upon the point of the statute of limitations.

But even on the supposition that the husband is barred and the wife is not, this action can, in my opinion, be sustained. It is true that “ when once the statute runs against one of two parties entitled to a joint action, it operates as a bar to such joint action.” (Story, J., in Marsteller v. McLean, 7 Cranch, 156 .) That case decided that a plea of the statute of limitations where only fome of joint tenants plaintiffs were under disability, was good. So in Perry v. Jackson, (4 T. R., 516,) a plea of the statute good as to one partner, availed as to both in a joint action. Roe v. Rowlston, (2 Taun., 441,) determined that the disability of one copartner did not save the other from the operation of the sta tute, against whom it ran. The disability of the sister was coverture.

In a series of cases a distinction is taken between cases in which the’light is joint, and where it is several.

In R oe v. Barksdale, (2 Brock. R., 436,) there was a demise by several eo-lessees as heirs at law, in an ejectment. Six were under disability when the cause of action accrued, and were not

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barred by the statute. One of them was barred. Chief Justice Mabshall said, had they claimed in severalty, it was clear the six could recover, and the defendant would succeed as to the' other. Joint and several demises were laid in the declaration, and the Court allowed a recovery precisely according to the shares barred, and the one not barred.

See, also, Henry v. The Executors of Means, (2 Hill’s S. C. R., 328,) and Ritchens v. Craig. (1 Bailey, 119.) The rule in South Carolina appears to be, that the infancy of one plaintiff will save the statute as to the others; but not so in other cases. Those against whom the act has run cannot recover.

In Neal v. Robertson (2 Dana’s Ky. R., 86,) it was held that a husband suing alone, or with his wife, may be barred by the statute running against him, although upon the cessation of the coverture, she would have the right to sue. This decision was recognized in Downing's heirs v. Ford. ( 9 Dana, 392 .) See, also, The State v. Wilson’s Adm., (3 Harrington’s R., 348,) and McDowell v. Potter. (8 Barr., 189.)

Now what is the legal interest and position of Madame De Pierres as to the property in question ?

Those rights, as defined by the marriage contract, appear to be these: The community of interests is limited, and all' property brought in by the parties is excluded, (Art. 7,) hence the wife and her heirs will be entitled to the amount brought in by her, in case she survives her husband. This dowry given by her parents will, in that case,- go to her. In case of her dying first, her heirs would take it, (Art. 9,) but the income of one-half of the property would then go to her husband for his life, he causing an inventory to be taken in presence of her heirs. (Art. 11.) There are some other clauses not necessary to be stated, such as the one relating to the right of prcedput in the survivor, to be exercised before a division of the estates brought in,

I do not clearly understand whether, under Article 7 or otherwise, the income of all that was brought in by each is to be held in community or not. I presume it was not. The savings only are mentioned.

This instrument has, by the French law, as I understand it, the full effect of leaving or vesting the property, or title to the estate in question, in Madame De Pierres, with the eventual benefit

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to the husband referred to, and with the right of administration as it is termed, in him. This seems the result of several sections .of the treatise of M. Touillier Du Contrat du Marriage. (Droit, Civile Francaise, tom. 12, §§ 380-383.) The administration of movable or unmovable property excluded from community {realisés) belongs to the husband, unless there is an express agreement to the contrary. And this administration involves the right to receive the revenues. See, also, the authority cited in Le Breton v. Miles. (8 Paige, 261.)

Strangers merely resident in France are affected upon marrying, by what is termed the Legal Community {la communauté legale), and much more by a conventional one. (Touillier, tom. 12, § 91, p. 131.)

By a general rule of law, this contract establishes the rights of the plaintiffs as between themselves according to its provisions as interpreted by the French law, and gives to each the powers incident by that law to the estates or interests created; (Le Breton v. Miles, 8 Paige, 261; Duncan v. Cannan, 23 Eng. L. and Eq., 288;) provided there is nothing prescribed in our own law incompatible with the interests, estates and rights thus created. So far is this from being the case, that I think the contract is in entire harmony with our law, and it results that Madame De Pierres has a separate estate, as we would term it, in this property, which neither her husband nor his creditors could reach or affect, by the law of France, or by our own. The reversion, at least, is to her if she survive, and to her heirs if she die first.

That this right and interest would entitle her to commence this action, and perhaps alone, seems clear. (Code, § 114.) And that under our present system, the union of the husband with her, if objectionable at all, cannot now be taken, is also plain. (Code, §§ 148, 144; 20 Barb,, 342 ; 12 How. Pr. R., 134.) And judgment could be given in her favor, even if the bar of the statute as to him was deemed insuperable. (§ 274, sub. 1.)

The learned Judge at Special Term treated the communications in evidence as a full acknowledgment in writing of the existing obligation to execute the marriage contract.

Without passing upon this question, we prefer putting-our decision on this part of the case, upon the ground I have men-

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turned, which presents the point as favorably for the defendants as it can be presented.

It is also answered upon the subject of the statute, that the debt to be secured is not yet payable, and that the obligation to perfect the security is commensurate with the. duty to pay the demand, and the statute cannot begin to run as to one until it begins as to the other. It may be questioned whether, when there is a distinct obligation to pay a debt at a future unexpired period, and another contract, even in the same instrument, to secure that payment, which duty is binding and may be enforced at once, the statute may not apply to the. latter. The contracts and obligations are not merely divisible, but are separated, independent, and in their nature different.- We, however, do not find it necessary to determine this point.

There remains one other point. The judgment directs Mr. Thorn to pay off the mortgage of $70,000 -to the Life and Trust Company, within six months.

By. the contract the rents and profits of this property belong to. him during his life. The dowry was to be paid one month after his decease, if he survived his wife; and the property would revert to him absolutely, I apprehend, upon his daughter dying, ■childless before him, or if her children should so die. This is ■only subject to the usufruct of a moiety for life, given on a certain event to the Baron De Pierres. (Art. 6.)

Mr. Thorn had,, then, a mortgagable interest and estate in the property, viz., his life estate and the contingency of obtaining the reversion.

There is also some ground for supposing that the property is of ample value to discharge all the incumbrances, including the mortgage to be given under the contract.

Still the scope and justice of the' stipulation was, that the mortgage to guaranty payment -of this dowry should be a mortgage to take effect at its date; to preclude any subsequent incumbrances impairing the value of the security or embarrassing its ■enforcement. The mortgage to the Trust Company was in violation of' this right, and of the correlative duty of Mr. -Thorn. Upon the whole, we think that the judgment below cannot be interfered with in this particular.

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II. I shall next consider the case in relation to Mrs. Thorn and the judgment against her.

The proof of the execution of the marriage contract was, as before stated, sufficient to establish it upon the trial as against Mr. Thorn, and of course against Mrs. Thorn, unless some difficulty arising from her coverture exists.

At the date of the instrument, the. domicile of Mrs. Thorn, following that of her husband, as well as constituted by birth, was in New York; the lands which the agreement was to affect, were in this State; but she and her husband had resided in Paris for a number of years before its execution. The title to the property was in Mr. Thorn, and she had only an inchoate right of dower in it.

I shall assume that by the laws of France she had effectually mortgaged or hypothecated the property, had it been situated in that country.

■ The objection still is great. No point is better settled than this: that as to real estate, the law of the country where it is situated is to control in all respects; in relation to the enforcement of instruments; to methods of charging or transferring, and to remedies in relation to it; “a title or interest in land can only be acquired or lost agreeably to -the law of the place where the same is situated.” (Hosford v. Nichols, 1 Paige, 220; Cutter v. Davenport, 1 Pick., 81 ; McCormick v. Sullivant, 10 Wheat., 192 , and cases; Warrender v. Warrender, 9 Bli., 127; Monroe v. Douglass, 1 Seld., 447; and 4 Sandf. Ch. R., 126.) “The validity, of every disposition of real property, whether testamentary or inter vivos, must-depend upon the law of the State where the lands are situated.” (Eyre v. Storer, S. Ct. New Hampshire, Month. L. R., Oct., 1858, p. 362; see, also, Waterhouse v. Stansfield, 13 Eng. L. and Eq. R., 465; Chapman v. Robertson, 6 Paige, 627.)

At the date of this instrument the title to the property was in Herman Thorn, and his wife had only an inchoate right of dower. If she had executed it in the same manner in New York; it would have been wholly inoperative. (1 R. S., 758, § 10; Elwood v. Klock, 13 Barb., 50 -54; Albany Ins. Co. v. Bay, 4 Comst., 9.)

The counsel of the plaintiffs refers to cases which are plainly distinguishable. They are cases of a separate estate in the wife, technically so known in a court of equity. As to such an estate,

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she is treated as a feme sole. Stead v. Nelson, (2 Beav., 245,) where an agreement to mortgage was carried into effect, was of this nature. But to treat an inchoate right of dower as separate estate would be novel. ■ The opinions of both Justice Jewett and Justice Pratt, in The Albany Insurance Company v. Bay, (4 Comst., 9,) settle this point very clearly.

It is urged that by the 6th Article of the contract the defendants declare themselves to be the owners of the said property by inheritance, and bind themselves within six months to prove their title thereto.

These words would perhaps warrant the inference of the estate in them being of that peculiar character which a conveyance to husband and wife creates. (Jackson v. McConnell, 19 Wend., 175 .) Yet that would be a legal estate, not a separate one, in the sense of a court of equity. If the words indicate a tenancy in common or joint tenancy, the result is the same. And if they could bear a construction of the inheritance, being in Mrs. Thorn, solely, there would be no difference.

The 11th section of the statute, however, (1 R. S., § 758,) “ of the proof and recording of conveyances,” raises the question whether the proof of the execution of the instrument, if sufficient against her husband, is not equally sufficient as against her, so that whatever rights may be adjudged against him upon it may be equally adjudged against her. Upon a careful consideration, I think that this is the result. The letter of the provision undoubtedly warrants this. With a transposition of -clauses, it may be properly and grammatically read thus: When any married woman, not residing in this State, shall join with her husband in any conveyance of real estate situated within this State, the proof of the execution of such conveyance may be the same as if she were sole, and the conveyance shall have the same effect as if she were sole. By section 88, the term “conveyance embraces every instrument in writing by which any interest in real estate is mortgaged, or may be affected in law or equity,” with certain exceptions, hereafter noticed.

I believe the first act which contained any provision as to the execution of deeds by married women, abroad, was that of the 8th of March, 1778. (Van Schaack’s ed. Laws, p. 765.) It re

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quired the solemnity of an acknowledgment on a private examination before-certain designated officers.

Then on the 6th of April, 1792, (2 Green., 452,) it was enacted, “that in all cases when any married woman, not residing in this State, shall join with her husband in the sale of any lands situate in this State, and shall join in and execute, seal and deliver the conveyance of such lands, every such woman shall be thereby barred of and from all right and claim of dower in the lands, &c., so conveyed.”

By the act of 6th April, 1801, (1 Webs. & Sk., 478,) this provision was reenacted with variations and additions so as to read as follows, “ that where any feme covert not residing in this State shall join with her husband in any deed or conveyance of or relating to any lands or real estate situate within this State, she shall thereby be barred of and from all claim of dower, and all other right and title therein, in like manner as if she-were sole, and the acknowledgment or proof of such deed, conveyance or writing may be the same as if she were sole, and shall entitle such deed, conveyance, or writing to be recorded as aforesaid.”

The provision in the “ act concerning deeds ” in the revision of 1813, (1 R. L., 1813, 370,) was precisely the same.

The 11th section of the Revised Statutes of 1830, is, with immaterial changes of language, precisely the same, omitting, however, the clause, “ and shall entitle the deed, &c., to be recorded.”

In Jackson v. Gilchrist, (15 John. R., 91,) the decision turned upon the effect of a particular statute of the year 1771, but the opinion of the Court, and arguments of counsel laid the foundation of the proposition now settled, that the common law mode of fine and recovery, to pass the real estate of a feme covert, did not prevail in the colony of New York, but by usage it would pass by deed. How that was to be executed, was another question.

In Constantein v. Van Winkle, ( 2 Hill, 240 ; 6 id., 177, in error,) the Supreme Court held that a deed executed by a married woman in New Jersey, in 1760, of lands in New York, was not valid to pass her interest. It could be done by deed, but an acknowledgment by her in some form, and before some officer, was always deemed essential. But the decision was reversed and unanimously, in the Court of Errors, and two points seem very fully settled by the decision, that by the ancient usage in

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the colony of Hew York, independent of ahy statute, a feme covert might, in conjunction with her husband, convey her interest in real estate by deed, without resorting to fine and recovery, and that by force of a statute of 1771, the deed was valid without any acknowledgment at all.

And I consider that the case goes far to determine that, but for statutory restrictions; and apart from the act of 1771, a deed by the customary law of Hew York, was good against a married woman without any acknowledgment, and could be proven as if she were sole, being executed with her husband.

Every Senator who delivered an opinion holds this view.

Then in The Albany Fire Insurance Company v. Bay, (4 Comst., 9,) we find it decided, that by usage and laws of the colony and State, a married woman could convey lands by a deed duly acknowledged, without the concurrence of her husband.

Justice Jewett, in his opinion, (p. 15,) adverts to the distinction established in sections 10 and 11, depending upon the place of residence of the wife; and although what he says may not be treated as even a positive, deliberate opinion, his expressions favor the view of the proof being sufficient in all cases where it will be so, as to the husband. There is but a single restriction or regulation to be observed by a married woman, residing out of this State, in order to alien her lands situated here. It is that “she join with her husbandin the conveyance.

In Meriam v. Harsen, (2 Barb. Ch. R., 232-268,) Chancellor Walworth says, that the act of 1771 and all the subsequent statutes on the subject are merely restrictive of the right which a feme covert possessed by the common or customary law of the colony to convey her estate by deed, with the concurrence of her husband.

In Bool v. Mix, ( 17 Wend., 128 ,) Justice Brohsoh takes a similar view.

And Senator Bockee begins his review of the statutes with the charter of liberties of 1683, and holds that the whole series indicate a previous customary law, which the statutes were designed to correct and limit. ( 6 Hill, 180 .)

My conclusion is, that whatever testimony is sufficient upon the trial of a cause, to entitle an instrument to be read against a woman, if she were sole, will be sufficient when executed out of

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the State, although she is married. This marriage contract is therefore established against Mrs. .Thorn.

It results that the Court can adjudge and declare that the instrument does constitute a valid lien, and charge, by way of mortgage upon the property, as against Mrs. Thorn, precisely the same as against her husband.

Still the question remains, can the Court go further and decree and compel her to execute a new mortgage, so as to enable it to be recorded?

That portion of the marriage contract which rests in covenant or contract; as to execute an instrument in such form as would entitle it to be recorded in Hew York, or to make title in six months, could never be enforced against her, had the paper been executed in this State. (Martin v. Dwelly, 6 Wend., 9 ; Jackson v. Vanderheyden, 17 Johns., 167 ; Atwater v. Buckinham, 5 Con. R., 492; Carpenter v. Schermerhorn, 2 Barb. Ch. R., 814.)

Yet the argument which is to be drawn from the statute, (if our construction of it is right,) is very strong. Connecting the 11th and the 38th sections, we have this provision, that any instrument executed by a married woman abroad, whereby the title to real estate may be affected at law or in equity, shall have the same effect as if she were sole. If, as we clearly hold, the creation of the equitable mortgage, apart from any covenant, justifies the Court in adjudging Mr. Thorn to execute a perfected mortgage, to be recorded, the principle and statute almost conclusively settle the same point as against her.

Yet another clause of the 38th section should not be unnoticed. In defining the term “ conveyance,” as used in the act, there is the exclusion of “executory contracts for the sale or purchase of lands.” And section 39 provides, thát “• executory contracts for the sale or purchase of lands,” when proved or acknowledged in the manner prescribed in the' chapter, may be recorded, &c., and be read in evidence.

Thus it may be urged that whatever is contained in the instrument effectually to create a charge or lien by way of mortgage in itself, may be adjudged and established as such against a married woman, while whatever in the same instrument depends upon contract, is executory, as it is not made obligatory by the

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act, but is in substance excluded from its operation, must be governed by the general law, viz., the lex rei sitae.

But this clause may, we think, be very properly restricted to contracts for sale, altogether executory, where no estate or interest, legal or equitable, has been created in the land by the instrument in question, but all rests in covenant. And thus the absolute creation of an equitable charge upon the estate or interest Mrs. .Thorn possessed, and the obligations incumbent upon her arising from such creation, are governed and shaped by the important 11th section which has been discussed.

The judgment is therefore affirmed, with costs.