Simmons v. McElwain

.By the Court, Harris, J. It is true that the deed from the defendant to his wife, was void in law, for a husband cannot, during coverture, make a grant or conveyance to his wife. But such a grant will be upheld in equity, when it is necessary to prevent injustice. (See Shepard v. Shepard, 7 John. Ch. 57, and cases there cited; 2 Kent’s Com. 156.) In this case, the wife, in good faith, and for a valuable consideration, paid out of her separate estate, purchased the land conveyed to her. She thus obtained an equitable right to it, which a court of equity will recognize and protect. Having thus acquired an equitable title to the land, she proceeded to make improvements upon it, and, for this purpose, employed mechanics to erect a house. The contracts she.made with them were for the benefit of her own separate estate. In undertaking to furnish materials and perform the work, they were to look to Mrs. McEIwain, and not the defendant, for compensation. The debt thus contracted was her debt, and not that of the defendant, It was for the benefit of her estate, and not his. It might be charged upon her separate estate. The husband incurred no personal liability. (See Stammers v. Macomb, 2 Wend. 454; Dickerman v. Abrahams, 21 Barb. 551.) So far as the case depends upon questions of fact, these have been disposed of by the referee. His decisions are supported by. the testimony. Mrs. McEIwain not only contracted for the work, but it was done upon the credit of her separate estate, hi or is there any thing in the case which required the referee to find that the defendant ever assumed the payment of her debt. He proposed to assign certain demands in order to provide the means of payment, but this proposition was not accepted, and no obligation to pay the debt can be inferred from it. i Hor did the re-conveyance of the property by Mrs. McEIwain to her husband, carry with it an obligation to pay her debts. The property itself might be charged in his hands, but there was nothing in the transaction which could create a [423] personal liability. Upon the whole, I think the case has been correctly decided by the referee. The judgment should therefore be affirmed. The costs to which the defendant will be entitled on this appeal will probably exceed the amount of the judgment recovered by the plaintiff. If so, these costs should be applied to satisfy that amount, and the defendant should have judgment only for the excess. [Albany General Term, May 4, 1857. W. B. Wright, Biarris and Gould, Justices.]