Knowles v. McCamly

The Chancellor. The lot intended to be conveyed was sufficiently described in the contracts by the description of the lot in West Pulteney township in the town of Riga, a known by the name of the Buck lot” although the number of the lot was left in blank. And if the deeds to the complainants had described it in the same manner as the lot in that towmship known by the name of the Buck lot, the title would undoubtedly have passed to the grantees in those deeds notwithstanding the mistake in the number of the lot. The evidence of Brewster, therefore, as to what took place at the time of the drawing of those deeds and the execution thereof by Buck and the defendant J. McCamly, is sufficient not only to show, as against the latter, that he had executed those contracts, but that the conditions of the contracts had been complied with on the part of the complainants, so as to entitle them to conveyances according to the terms of the contracts. The complainants, therefore, are entitled, as against him, to a decree correcting the mistake and requiring him to convey all his interest in the Buck lot, as tenant by the curtesy in the estate of his deceased wife. And he must also procure conveyances of the reversionary interest of his daughter in the premises, so as to perfect the titles of the complainants according to the terms of his contracts, or must pay them all damages they may respectively sustain by reason of the defect in their titles. The defendant J. McCamly, and all persons claiming title to the premises under him, must be perpetually enjoined from prosecuting any suit or suits against the complainants respectively, their heirs or assigns, to recover possession of the lands mentioned in the contracts. But as the mother of the infant defendant did not execute and acknowledge these contracts in the manner prescribed by the 10th section of the chapter of the revised statutes relative to the proof and recording of conveyances of real estate, so as to make them binding upon her, as ex346 ecutory contracts for the sale of her interest in the premises, under the 39th section of that chapter, (1 R. S. 758, 762,) there can be no decree for a conveyance against the infant defendant as her heir at law. To authorize a decree against a feme covert, or her heirs, for the specific performance of a contract to convey her lands, she must not only have signed the contract with her husband, but have also acknowledged it before the proper officer, upon a private examination apart from her husband. It is true a court of chancery sometimes enforces a charge created by a feme covert upon her separate estate in the hands of her trustee. But it is upon the principle of the court that, as to such separate estate, she is to be considered and treated as a feme sole, and the charge upon the estate is in the nature of an appointment of her equitable interest in the trust estate. (Field v. Sowle, 4 Russ. Rep. 112. Rutter v. Buckingham, 5 Day’s Rep. 496. Wright v. Rutter, 2 Ves. jun. 676.) But where the legal estate is in the wife, except in the case of a non-resident of the state, her deed or contract, conveying or agreeing to convey such estate, if not acknowledged according to the statute, is a mere nullity, in equity as well as at law. And where she joins her husband in a contract to convey such estate, if she does not acknowledge the contract in the manner specified in the statute in relation to conveyances by married women, it must be considered, in this court as well as in courts of law, the agreement of the husband only. And such was the decision of this court and of the court for the correction of errors in the case of Martin v. Dwelly, (6 Wend. Rep. 9.) The deeds of lot No. 123, which were executed and acknowledged by Mrs. McCamly are no evidence of an agreement on her part to convey her interest in No. 103, the Buck lot mentioned in the contracts. Nor is there a particle of proof in this case that at the time she executed and acknowledged those deeds she supposed she was conveying her interest in the last mentioned lot. Neither the officer who took her acknowledgment, nor the subscribing witness to the previous contracts, have been examined to [347] show what took place at the time of such acknowledgment, or that her name affixed to the contracts was in fact written by her. Although we may conjecture that she would have executed and acknowledged deeds of the lot she really owned, as readily as she did the deeds of lot No. 123, it is impossible that any one should know that she would have done it. Therefore if she had been competent to contract as a feme sole, there is nothing in the case that would authorize the court to make a decree against her infant daughter, upon the facts as they appear in the master’s report. And as the common law rendered her incapable of conveying, or of contracting to convey, her interest in the premises in question, except by a written instrument duly acknowledged by her, and containing a proper description of the land, no state of facts which can by any possibility be established in this case will be sufficient to entitle the complainants to a decree against the infant defendant. The bill must therefore be dismissed, as to her, with costs to her guardian ad litem who has been appointed by the court to protect her rights in the suit. The decree is to be without prejudice, however, to any rights the complainants may have at law against Buck or J. McCamly, upon the original contracts, for the damages they may have sustained by the non-fulfilment thereof, if they shall fail to obtain satisfaction for such damages under the decree against the absentee, or his property in this state. Decree accordingly.