Opinion
December Term, 1862
Amasa J. Parker, for the appellant.
John H. Reynolds, for the respondent.
On the death of William Cameron, the fee of the farm in controversy descended to his seven children, as tenants-in-common, subject to their mother's right of dower; and Mrs. Peck, as one of the tenants-in-common, and her husband, by her authority, were justified in entering upon the premises, unless she had in some way divested herself of her right. The widow's right of dower was but a chose in action, and no one claiming under her by virtue of such right could exclude any of the heirs. ( Green v. Putnam, 1 Barb., 500.)
This court has already decided that the submission and award which have been introduced in this case are void. The question came before the court under the following circumstances: Mrs. Cameron having received letters of administration upon her husband's estate, neglected to file in the office of the surrogate an inventory of the estate, and a summons was issued by the surrogate, on the application of Hiram Peck, in behalf of his wife, requiring her to return the inventory, or show cause why an attachment should not issue against her. On the return of the summons no inventory was filed, and the administratrix showed, for cause why an attachment should not issue, the submission and award which have been introduced by her tenant in this case. The surrogate held the cause shown sufficient, and refused the attachment. This order was affirmed by the Supreme Court. On appeal to this court, the judgment of the Supreme Court and the order of the surrogate were reversed, on the ground that the submission and award were void.
It is now claimed that the submission and award have been ratified by the defendant and his wife, and are therefore effectual to protect Mrs. Cameron's life estate in the premises in dispute; or at least that there was some evidence of ratification which gave the plaintiff a right to submit the question to the jury. It is also claimed that the acts of Peck and wife have been such as to estop them from claiming the premises in hostility to Mrs. Cameron. In regard to the question of ratification, it is sufficient to say that the submission and award were pronounced void, because they were in conflict with the statute, which declares that no submission to arbitration "shall be made respecting the claim of any person to any estate, in fee or for life, to real estate." (2 R.S., p. 541, § 2.) Being prohibited by statute, the submission and the award in pursuance of it were not merely voidable, but void, and consequently incapable of ratification. Acts which would pass the title, or estop Mrs. Peck from claiming it, without reference to the award, and such only, would be available to the plaintiff, to sustain his action.
In considering the question of estoppel, the acts and declarations of the husband must be disregarded. The property belonged, under the acts of 1848 and '49 "for the better protection of the property of married women," exclusively to the wife, and the husband could do no act to prejudice her title. The only act of the wife, upon which reliance is placed, as creating an estoppel, is her signature to the deed purporting to convey to her brother the farm awarded to him. If the question were now first presented, whether the statute of 1849, authorizing a married woman to convey real and personal property "in the same manner and with the like effect as if she were unmarried," rendered her execution of a deed for the conveyance of land effectual without acknowledgment, I should be inclined to hold that it did not, and that the provision of the Revised Statutes declaring that no estate of a married woman residing in this State should pass by any conveyance not acknowledged, still remained in force, on the ground that there is no express repeal, and a repeal by implication is never held to take place where both acts may stand together. The contrary, however, has been held, and it is too late now to question the correctness of that conclusion, involving, as it doubtless would, the validity of many titles. ( Blood v. Humphrey, 17 Barb., 660; Andrews v. Shaffer, 12 How., 441; Yale v. Dederer, 18 N.Y., 271.) Assuming, however, that the deed was effectual to convey her interest in the land described in it, there was nothing in the transaction to estop her from claiming her interest in the other lands descended to her from her father. The absence of any evidence whether her signature to the deed was the first or the last, or that it was designed to influence, or that it did influence, the action in any respect of her mother, or her co-heirs, leaves the plaintiff's case without any of the features which characterize an estoppel. (3 Hill, 222; 9 Barb., 618; 3 Kern., 638.) Indeed, whatever may have been her declared object in executing that deed, and however it may have influenced the other parties, I am not able to see any ground on which it could be held to estop her from asserting her title to other lands. (2 Leon., 285; Reeves' Dom. Rel., 2d ed., 108.) Nothing, therefore, appears upon the record in this case which could justify a jury in finding that Mrs. Peck had parted with, or impaired her title to one seventh of the farm in controversy, which descended to her on the death of her father, and her entry upon it, and that of her husband with her, was rightful, and the nonsuit was properly granted. The defendant was, I think, equally protected, and for substantially the same reasons, under the lease from Mrs. Tarbell.
The apparently harsh and unfilial character of the defendant's conduct is urged as a reason for sustaining the widow's right to the exclusive possession of this homestead. Whether circumstances may not exist, which could not properly appear in the case, to soften if not remove the harsh features of the transaction, we have no means of knowing; but if we knew affirmatively that there were none, it would still be our duty to dispose of the case according to the legal rights of the parties as they appear clearly before us, leaving any moral questions which may result from the conduct of the parties to be disposed of by themselves. All attempts of courts, especially courts of last resort, to do better justice in particular cases than the rules of law will admit, are proverbially prone to fall short of their object in the particular cases; and by the introduction of bad precedents are found by experience to be promotive of injustice.
The judgment of the Supreme Court should be affirmed.
DENIO, Ch. J., SMITH, GOULD and ALLEN, Js., were also for affirmance.
The submission and award were void. ( Peck v. Cameron, in Court of Appeals, not reported.) The award was made the 13th of August, 1850. The deed for the farm which was awarded to William H. Cameron, which was signed and sealed by all the heirs of William Cameron, the intestate, and by his widow, and delivered absolutely and upon no condition to William H. Cameron a few days after the award, was good and operative between the parties, though not witnessed or acknowledged, and took effect immediately on its delivery. ( Wood v. Chapin, 3 Kern., 514; 17 Barb., 103.)
By the act of 1848, as amended in 1849, Nancy Peck, the wife of the defendant, could convey to William H. Cameron her estate or interest in the farm awarded to him as if she had been a feme sole. Her husband's rights or estate as tenant by the curtesy, was subject to his wife's power of conveyance given by the statutes.
The 30th of May, 1851, William H. Cameron released all his interest in the estate, except the farm awarded to him, to all the heirs except the defendant's wife. He and the widow, also, after the award, and it is to be presumed from the case, after the delivery of the deed to him of the farm awarded to him, paid the sums of money required by the award to be paid by them to the heirs, except that the defendant's wife refused to accept the $100, which by the award William H. Cameron was to pay her.
The widow lived on and had possession of the farm in which she was awarded a life estate until 1856, when she executed to the plaintiff two leases, with covenants of peaceable possession for the locus in quo, under which the plaintiff was holding at the time of the alleged entry and trespasses.
It is to be presumed, I think, that the widow would not have executed the deed to William H. Cameron, or paid the money she was required to pay by the award, or give the leases to the plaintiff with covenants of peaceable possession, if the defendant's wife had not ratified the award, so far as to execute the deed to William H. Cameron for the farm awarded to him. Therefore, I think she was estopped, at least so far as asserting a right of entry, possession or title against the plaintiff, and if she was estopped, her husband was, his rights being derived from her or coming by virtue of her estate.
I think the judgment of the Supreme Court should be reversed.
DAVIES and WRIGHT, Js., were also for reversal.
Judgment affirmed.