Meeker v. Wright

Learned, P. J.: The deed from Samuel Daily to Cordelia, his wife, was void at law, because made directly to her. (White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423.) It was void, also, for another reason. The husband and wife held the land as one person. They were both necessary to make one grantor, and the deed of one without the other was merely void. (Doe v. Howland, 8 Cowen, 277; Jackson v. Stevens, 16 Johns., 115 ; Jackson v. McConnell, 19 Wend., 175 ; Torrey v. Torrey, 14 N. Y., 430.) The old rules as to the effect of a conveyance to husband and wife are not affected by the married-women acts. (Farm, and Mech. Bank v. Gregory, 49 Barb., 155.) The husband, it is true, was entitled to possession during their joint lives ; and it is said that he might alien their interests during their joint lives. But his conveyance could have no further effect. If the deed, then, of Samuel Daily to some third party would have conveyed only the interests of the husband and wife during their joint lives, his deed to his wife could have had no greater effect. The same may be said of the mortgage of Cordelia Daily to Samuel. Even assuming that his deed conveyed, in equity, the right of possession during their joint lives; still, as to the remainder, after their joint lives, it was necessary that both should unite in a conveyance. (Doe v. Howland, ut supra.) [536] Tbe estate which she had, by virtue of the conveyance to her and and her husband, was in no sense her separate estate. By the married-women acts she could not take from her husband a separate estate. (Laws of 18á9, chap. 375.) We are not called on, therefore, to decide whether her mortgage, not acknowledged according to the statute applicable to married women, was valid. This does not seem to.be a case in which any equitable considerations should induce the court to sustain conveyances which are not valid at law. It is sufficient to hold both the deed and mortgage to have been binding in equity, on the interests of the parties, husband and wife, for them joint lives. These interests have been terminated by his death; and neither deed nor mortgage affected the title by survivorship. The present estate of Cordelia Daily (now Wright) is that which she took by virtue of the original conveyance to her and her husband. What she mortgaged to Samuel Daily was that which passed to her (in equity) by his conveyance — that is, the estate for their joint lives. The judgment of the court below was correct, and should be affirmed, and the motion for a new trial should be denied, with costs. Present — Learned, P. J., Bocees and Boardman, JJ. Judgment affirmed, with costs.