Bradley v. Walker 28 Jones & S. 324, 60 N.Y. Super. Ct. 324

MARY E. BRADLEY, Respondent v. ISAAC WALKER, Appellant.

Injunction—Judginent enjoining defendant from erecting and maintaining structures in front of his premises in violation of a covenant agreement reserving a space of eight feet from the street line.

Held, that the questions of law in this case were all substantially decided by the decision of a former general term sustaining the injunction granted at the inception of this action, except the questions of the defendant’s . notice of the agreement in question which were not fully discussed. This question, and that of an alleged error in granting to plaintiff an extra allowance of costs, are the only questions for consideration on appeal.

Held, that a purchaser of real estate, with notice of an equity attaching to it, buys subject to that equity, and must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor, and this notice may be implied from circumstances.

The house in question, and the adjoining houses in the same block, are actually set back eight feet from the street line, and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is, of itself, a circumstance that might well put the purchaser on inquiry.

The covenant agreement under consideration was regularly recorded, and this, of itself, was notice. Purchasers must be presumed to have examined every recorded deed or instrument, and must be deemed to know every fact disclosed by the instruments of record affecting the property purchased, and the fact that such purchasers had not received actual notice otherwise, will not relieve them from the notice and obligations imposed by said recorded instruments. Even if it should be held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, because of her defective acknowledgment, it having been properly recorded as to the other parties to the agreement, the defendant would thereby have actual notice of the same.

In regard to the granting of an extra allowance of $250, the court below fell into error. There was no evidence of the value of the subject matter *325involved and no sum was recovered beyond the costs and extra allowance. Where the subject matter involved is not capable of a money value or the value is not shown, an allowance is not authorized.

Before Freedman, P. J., and Gildersleeve, J.

Decided January 29, 1892.

Appeal from a judgment rendered at an equity term of the court.

Henry Hoyt, for appellant, argued:—

I. There was no proof of the execution of the covenant or agreement by Susan Alvord. A certified copy of the record of the covenant or agreement was offered in evidence and admitted under the objections and exceptions of defendant. Section 935, Code of Civil Preeedure, which was also a provision of the statute, is as follows : " A conveyance acknowledged or proved and certified in the manner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded within the state, or a transcript thereof duly certified is evidence with like effect as the original conveyance.” The motive and intention of the plaintiff in offering the transcript of the record of the covenant or agreement from the register’s office was manifestly for the purpose of proving it as a conveyance. The revised statute in force at the time of the alleged execution of the covenant or agreement is as follows : Section 13 (§ 10), chap. 3,3rd edition, p. 42: “ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section she acknowledged, on a private examination apart from her husband, that she executed such conveyance freely, and without any fear *326or compulsion of her husband; nor shall any estate of such married woman pass by any conveyance not so acknowledged.” There is no claim that the covenant or agreement was so acknowledged on the' part. of Mrs. Susan Alvord. The place of residence of Mrs. Alvord is fixed by the alleged agreement, by the recitals, viz.: “ This indenture between Alonzo A. Alvord of the city of New York, and Susan his wife.” It is contended by appellant that the alleged covenant or agreement is a conveyance within the meaning of the statute. Section 44 (§ 38), p. 47, chap. 3, third edition, is as follows : " The term ‘ conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate, or interest in real estate, is created, alienated, mortgaged or assigned ; or by which the title to any real estate may be affected in law or equity; except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.” By this statutory definition of conveyance it is manifest that the alleged covenant or agreement is a conveyance within the intent and meaning of the statute. Plaintiff and respondents have always contended that the title of the defendant and appellant to so much of the premises as lies between the northerly line of 30th steeet and a line parallel therewith and distant eight feet therefrom was affected by and subjected to the provision of the alleged covenant or agreement. The agreement provides “ have laid out and appropriated ” * * * “ and do appropriate all such parts of each of the above lots ” * * * “ for open spaces or courts, to remain unobstructed forever ” that the said open space or courts so to be taken from them and each of them shall forever thereafter be and remain an open space or court ” * * * “ Covenants herein contained shall be and they are hereby declared to be covenants running with the above mentioned lots of land respectively, and with the title thereto.” This *327certainly establishes a giving up, yielding and surrendering’ of an interest in lands and imposing a servitude thereon, as well as encumbering the title. A servitude is defined : “ Where the freedom of ownership in land is fettered or restricted, by reason of some person, other than the owner thereof having some right therein, the land is said to serve such person ; the restricted condition of the ownership, or the right which forms the subject-matter of the restriction, is termed a servitude ; and the land so burdened with another’s right is termed a servient tenement, while the land belonging to the person enjoying the right is called the dominant tenement. Brown Law Die., 320. Therefore the premises in question fettered, restricted and burdened with the conditions of the covenant or agreement is thé servient tenement and thereby an interest in the real estate was created in behalf of the persons in possession of the dominant tenement. Unless it was intended that the title to the lands in question be affected, why does the agreement specifically provide : “ Covenants herein contained shall be and they are hereby declared covenants, running with the above mentioned lots of land respectively, and with the title thereto ? ” It is respectfully submitted that the covenant or agreement, Ex. I, is a conveyance within the meaning of the statute, and the transcript of the record thereof, having no acknowledgment in the form prescribed by statute, it was error to receive the same in evidence against the objections and exceptions of defendant. The form of the alleged acknowledgment of the execution of the agreement by Susan Alvord is not in the form prescribed by statute; consequently there was no acknowledgment by her, and no estate of Susan Alford passed. There can be no presumption in favor of the validity of an acknowledgment, the form is statutory and must be strictly observed, and if not, the general presumption of law is that the wife was acting under the compulsion of husband. A *328deed of contract conveying or agreeing to convey an estate, where the legal estate is in a feme covert, if not acknowledged by her according to the statute, is void in equity as well as law. Knowles & Hume v. McCainley, et al., 10 Paige, Ch. 342. No estate passes except the conveyance is acknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. Elwood v. Klock, 13 Barb., 54. The deed of a feme covert not acknowledged according to the statute forms no consideration for a promise to pay the purchase money. Martin v. Dwelly, 6 Wend., 14. A deed executed by a feme covert is not binding on her until acknowledged, and her subsequent acknowledgment does not relate back to the time of the acknowledgment of the deed. Jackson v. Stevens, 16 Johns., 109. Where a wife does not acknowledge according to the statute her right is not divested. Jackson v. Cairns, 20 Johns., 303; People v. Galloway, 17 Wend., 538. The deed of a feme covert is void at common law, not merely voidable; and though she acknowledged the execution after her husband’s death, this shall not relate to the time of the original execution. It can be made operative only in virtue of an acknowledgment under the statute. Doe ex dem. De Peyster v. Howland, 8 Cow., 277.

II. Susan Alvord, at the time of the making the alleged agreement, could not make an agreement, conveyance or contract with reference to the premises in question. Lot 47, a part of the premises in question and referred to in the agreement, was devised, with other lands, to Susan Alvord under the will of Caspar Samler; subsequently in partition proceedings lot 47 was set apart by Commissions : “ To Alonzo A. Alvord and Susannah his wife, in the right of Susannah, in fee simple, 45, 47.” By the principles of the common law, if the wife, at time of or during marriage, were seized of an estate of inheritance in land, the husband, upon the marriage, *329became seized of the freehold jure uxoris, and he took the rents and profits during their joint lives. After her decease, if entitled to it, he had his estate of courtesy therein. If she survived him she took the estate in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeeded to estate. 2 Kent, 130, 133; 2 Blackstone, 126; Vartie v. Underwood, 18 Barb., 561. In 1846 Alonzo Alvord had a freehold estate in his wife’s, Susan Alvord’s, real property, by which he became entitled to the rents and profits during their joint lives. This estate he took jure uxoris. It is conceded that Alonzo A. Alvord could sell, convey, incumber such interest, that it could be taken under execution and that such disposition would be effectual during their joint lives; but upon the death of either such disposition ended. Alonzo A. Alvord died March 7, 1862, leaving his wife Susan him surviving. Consequently she took the estate in her own right freed from covenants, conditions and burdens imposed upon it by her husband in his life-time. This principle is demonstrated in Yartie v. Underwood, 18 Barb., 576.

III. A married woman can charge her separate estate, but it must be considered in this connection what is meant by the separate estate. The definition, as sanctioned by the Court of Appeals, was thus expressed: “ A separate estate in the feme covert only exists in such property, whether real or personal, as is settled upon for her separate use without any control over it on the part of her husband. It is not all the estate either in lands or chattels, belonging to a feme covert, nor is it her right of dower in the real estate of her husband. As to that kind of estate, the Court of Chancery, for certain purposes, considers her a feme sole, and her contracts relative to it, if made in a peculiar manner, as binding.” Willard Eq., 652. Until the change in the revised statutes in relation to uses and trust, there *330was a well settled doctrine in equity that a married woman could deal with her separate estate as though she were a feme sole. But this was a pure creation of the courts of equity. The right of disposition was confined to property enjoyed independently of the husband. But her own reversions in lands, when she owned them at the time of marriage, was a legal estate, descendable to her heirs, to which courts of equity did not and could not well apply the doctrines above stated. In reference to such an estate, she hah only a disposing capacity, which the common law or some enabling statute allowed to her. She could divest her title only by a conveyance, with certain solemnities of examination and acknowledgment. Willard Eq., 653; Yale v. Dederer, 18 N. Y., 270, and authorities there cited. Consequently, the agreement was null and void, and defendant’s 10 th objection should have been sustained and the alleged agreement excluded.

IV. Susan Alvord and husband by warranty deed conveyed the premises in question to Fielder and Ryer without any reference or abusión to the agreement, nor was such conveyance made subject to it. This was a direct and positive repudiation of the agreement, and is evidenced by the deed which contains the following clause with respect to the premises : And that the same are now free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of what nature and kind soever.” No rights and privileges under the agreement were conferred upon the grantees of Alvords, and none have been asserted by such grantees.

V. The defendant Walker had no notice of the agreement, and no reference or abusión is made to it in any of the conveyances of the premises in question.

VI. Defendant claims that 17 feet and 10 inches of the front of the premises in question can in no wise be *331affected, by the covenants and conditions of the agreement made in 1846. A triangular strip of land lying between Lot 47 and the northerly side of 30 th street, for the sum of $2,000, was acquired six years thereafter by Susan Alvord, in 1853. The principles of law adopted in cases where one having no title to lands executes a deed thereof or mortgage, thereon, with covenants of seizing and of title, and afterward acquires title, it inures to the benefit of the grantee or mortgagee, and the grantor or mortgagor and his privies in estate, in blood and law, are estopped from questioning that, at the date of the deed or mortgage the grantor or mortgagor had title, is not applicable to this case. Teft v. Munson, 57 N. Y., 97. There is nothing in the agreement or the evidence which indicates or contemplates that any subsequently acquired property shall be subject to its terms, nor is there anything in said agreement whereby Susan Alvord claimed or pretended that she was the then owner of the triangular strip, and that she contracted with reference to it. There is no evidence on which to base the finding on the part of the trial judge at the end of II. finding, viz.: “ And I further find that the gore was purchased to straighten the lot.” To this finding an exception was duly taken. The following cases demonstrate a subsequently acquired interest of a feme covert will not be held, even where she has previously contracted with reference to the same lands. A feme covert not being bound by a covenant or warranty contained in a deed executed by her and her husband jointly, for the purpose of conveying land which the husband holds in the right of his wife, such covenant will not operate by way of estoppel so as to vest an interest subsequently acquired by her in the grantee of the deed. Carpenter v. Schermerhorn, 2 Barb. Ch, 314; Martin v. Dewelly, 6 Wend., 9; Clowes v. Vanderhyden, 17 Johns., 167. A feme covert cannot bind herself personally by a covenant or contract during her coverture. *332Therefore, a deed executed by husband and wife, with covenant of warranty, does not estop the wife, in an action of execution against her, after the death of her husband, from setting up a subsequently acquired interest in the same lands. Jackson ex dem. Clowes v. Vanderhyden, 17 Johns., 167. The doctrine that a wife is bound by her covenant of warranty, entered into during coverture, is considered by Chancellor Kent, 2 Kent’s Com., 140, as at war with the established principle of common law. Martin v. Dewelly, 6 Wend., 14.

VII. It was error on the part of the court to grant the plaintiff an allowance of $250. The right to grant additional allowances in specified cases, and the amount thereof, is fixed by section 3253 of the Code of Civil Procedure. Subdivision 2 of the above section is as follows: “ 2 in any other case, specified in this section, sum not exceeding five percentum upon the sum recovered, or claimed, or the value of the subject matter involved.” It is necessary, therefore, that there should be some evidence of value. Monroe v. Smith, 23 Abb. N. C., 275; Coates v. Goddard, 34 Super. Ct., 118. There is no evidence in this case of the value of the subject, matter involved, nor is there any evidence as to the amount of damages sustained by plaintiff; no judgment for damages has been awarded the plaintiff, and the money judgment herein represents only the costs of the action and the above allowance of

George. W. Cotterill, for respondent, argued :—

I. The underlying and most meritorious principle in this case, and which in and by itself alone disposes of all the contentions made by the defendant, is that of dedication. A dedication may be made without writing; by act in pais, as well as by deed. The owner does not part with the title, for dedication has respect to the possession and rests upon the principle of estoppel; for “it would be dishonest, immoral or indecent, and in *333some instances even sacriligeous, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity.” Hunter v. Trustees of Sandy Hill, 6 Hill, 411, 412. This doctrine is also laid down in Washburn on Easements, page 240, and in all the elementary works, and it was held in the case cited below as follows: “ A parol dedication is good, and is generally the only one made; and although there is no grantee to take, it vests in the public, and is different from ordinary grants, and is to be construed upon principles to meet the nature of the case (22 Wend., 444; 6 Ib., 256; 6 Hill, 411; 3 Verm. Rep., 526; 6 Peters, 435). Its effect is not to deprive a party of title to his land, but to estop him while the dedication continues in force from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has ” (6 Hill, 412; 6 Peters, 431, 438). Curtis v. Keesler, 14 Barb., 521.

II. The second most meritorious and best settled principle of law is this, where anyone buys real estate, with notice of an equity attached to it, he buys at bis peril. The underlyyig principle is that “whenever a person who acquires a legal title, or an equitable title or interest in a given subject-matter—even for a valuable consideration, but with notice that the subject-matter is already affected by an equity or equitable claim in favor of another—takes it subject to that equity or equitable claim.” Pomeroy's Eq. Jurisp., vol. 2. p. 14. The doctrine has been clearly stated in Hodge v. Sloan, 107 N. Y., 245, 250. This principle was applied in the case *334in ibis court of Tallmadge v. East River Bank, supra, where the original owner merely exhibited a plan of St. Mark’s Place in which the houses were set back eight feet. This case reviews many authorities and quotes Chancellor Cottenham as saying that where a covenant of this character has been entered into it would be most “ unjust and unconscientious ” not to enforce it. One of the leading cases on this subject, and cited as such, is Whitney v. Union Railway Company, 11 Gray (Mass.), 363, where the same opinion is held in the following language : “ In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the inode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements, with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run Avith the land.” The authorities, however, in this state go so far as to hold that these covenants run Avith the land, and without an assignment of the covenants, are enforceable; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brown v. Jones, 23 Barb., 153. On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr., 436. And the defendant Avas enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr., 177.

III. We show conclusively by the authorities cited that the husband, Alonzo A. Alvord, had, by virtue of his marital right, the absolute and unqualified right to dispose of, and to sell all the interest of his wife, until the *335marriage relation ceased. In other words, she had no right to the property whatever as against him during her coverture. This agreement was entered into July 15, 1846 ; at this time the husband had the absolute disposition of the property by virtue of his marital right, and consequently the right to impose this very servitude. Mrs. Alvord having never disaffirmed it, but having joined in the conveyance made by her husband to Fielder and Ever without repudiation, the equity of the covenant upon which this case stands became conclusive against the defendant. On the first day of April, 1857, Alvord and his wife sold and conveyed these two lots to William Eyer and another. • In the year 1857, the two houses were built on these lots, the Walker lot and the one next east. The houses were therefore erected and the agreement consummated during the life of the husband, whose agreement was therefore perfectly valid and in force by virtue of his exclusive right to sell. “ This right the law had cast upon the husband as an incident to the marital relation. It was his property, and remained subject to all the incidents of property in his hands.” Vartie v. Underwood, 18 Barb., 566.

IV. It is, however, well settled that even if a woman has not power to bind herself by covenant personally, she has power to bind her assignees, and her husband has the same power. Now, they have expressly contracted as follows : “ And it is hereby mutually covenanted and agreed that the covenants herein contained shall be obligatory and binding upon every person who shall hereafter become the owner or owners of the said lots of land respectively, as upon the parties hereto respectively.”

V. The statute requiring a separate acknowledg’ment by married women having been subsequently repealed, the disability was thereby removed, and thus the matter was placed in the same situation as though the statute had never existed. It will be observed that the cove*336nant-agreement was executed on the 15th day of July, 1846; that Alonzo A. Alvord and Susan Alvord conveyed to Fielder and Byer on the first day of April, 1857, and that in 1848 the separate acknowledgment statute was done away with, the disability having been removed. Blood v. Humphrey, 17 Barb., 660. The disability was further removed by the statute of 1849; whch gave additional right to married women (Richardson v. Pulver, 63 Barb., 67), and there was an express repealing statute by the laws of 1879 as amended in 1880, as follows : Section 1.—The acknowledgment by married women as the proof of the execution by. married women of deeds or other written instruments may be made, taken and certified in the same manner as if they were sole ; and all acts and parts of acts which require from them any other .or different acknowledgment, proofs or certificates thereof are hereby repealed.