#### MYGATT et al. v. COE.

(Supreme Court, Appellate Division, First Department.

December 22, 1896.)

■Liability op Husband on Wipe’s Covenant.

The facts that plaintiff, when she sought to purchase the premises in Question, which were held in the name of defendant’s wife, and occupied by defendant and his family, was referred by the wife to defendant; that •defendant negotiated the sale, together with that of personal property belonging to himself; that defendant, in the absence of his wife, delivered a •deed of the premises made by his wife, in which he joined, receiving a portion of the purchase money in checks to his order, and a mortgage to the wife for deferred payments, and afterwards received all the payments of interest except one,—are insufficient to render defendant liable on the covenants of warranty in the deed.

Appeal from trial term, New York county.

Action by Sarah. M. Mygatt and another against Edward P. Coe for breach of covenant. Plaintiffs had judgment, and defendant Appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, and O’BRIEN, JJ.

Joseph H. Choate, for appellant.

E. M. Grout, for respondents.

VAN BRUNT, P. J.

This case has been several times before the ■general term1 and also before the court of appeals,2 and it does not seem necessary to call attention to the history of decision as affecting the cause of action attempted to be recovered upon. All that appears to be required in the disposition of this appeal is to examine the record for the purpose of ascertaining whether or not such additional evidence has been offered as would bring the case within the rule laid down by the court of appeals in its decision upon the last appeal to that court. The court say that “the case had always involved in it a narrow question of law depending on a- narrow question of fact, and the difficulty has been, first, to determine the nature and character of the proofs necessary to establish the fact, and then to apply the law to a case resting upon some peculiar features.” It was held to be the law of the case that privity of estate was essen-’ tial to support a right of action by a stranger to the contract upon the covenants of warranty and quiet enjoyment when there had been an eviction by paramount title; and the question considered by *735the court was whether there was sufficient evidence to show that the then defendant in this action had any title to or interest in the premises in question in respect to which he had made his covenant, which in any way abridged the title of his wife to the premises, The record title of which stood in her name alone. The trial court had found as a fact that the defendant was in possession at the time ■of the conveyance, and that he had the legal possession of the property, and so an estate in it which would support the covenant; and the inquiry of the court of appeals upon the last appeal was whether this finding was supported by the evidence, and it was held that there was no evidence from which that fact could have been found, unless such acts as grow out of the marital relations, and which would exist in every case where a husband lived with his wife in her house, upon her land, arc deemed to be sufficient. The evidence at that time showed that the record title to the premises in question was in the name of the wife, and that the deed of conveyance was executed by the wife and the husband; it being covenanted in the deed that, at the time of the execution of the same, the wife was lawfully seised in her own right of a good, absolute, and indefeasible -estate of inheritance in fee simple, free from all incumbrances, and had good right, full power, and lawful authority to grant, bargain, sell, and convey the same. The evidence also showed that prior to the conveyance the husband had incurred and paid charges for maintaining the premises and keeping the same in repair, and had paid taxes thereon, and that he had resided upon the premises with his wife and family. It further showed that the husband denied that he had any right or interest in the property of any kind whatever, and that, when the conveyance above mentioned was delivered, the husband and his family moved out of the premises, and the grantee took possession of the same. These facts the court held were insufficient to establish the finding that the defendant was in possession, having any estate or interest in the premises, or that he conveyed anything by the deed, or that he surrendered any right he had when he left the premises. The additional evidence upon the new trial established the fact that the grantee mentioned in the deed of the premises called at said premises with a view of buying the same, and they were shown to her by the wife, and for the purpose of fixing the terms and concluding the bargain for the sale of the property she referred the purchaser to her husband. Pursuant to appointment, he met the proposed purchaser, and then and there such purchaser negotiated with the husband for the sale of the premises, and of certain furniture and personal property then on the premises, for the aggregate sum of $19,000. The husband executed the agreement of sale in his own name, and he was paid and receipted for said personal property, which belonged to him. This receipt was indorsed upon the back of the contract. When the deed came to be delivered, the husband was present, and not the wife. The purchase money was paid to the husband by checks to his order. A mortgage upon the premises was taken to the wife, and all the payments of interest (but one which the wife receipted for) were made to the husband, who receipted for the same.

*736We fail to see that the additional evidence in any respect altered the situation from that which existed when the case was last before-the court of appeals. The husband had deliberately inserted in the deed that his wife was the sole owner of the premises, which was in accordance with the record, the premises having been conveyed to her alone;, and none of the acts done by the husband in connection, with the sale of the property were different from those which would be done by an agent acting for another in the sale of premises of which he had full charge. But it may be said that the husband executed the contract in his own name, which was an assertion upon his part that he had something to convey. But how is this contract to-be so potent that it does away with the formal declaration of the husband under seal that he had no title, and that his wife was the sole owner of the premises, and entitled to convey the same free from all incumbrances? The presumption being that legal possession follows the ownership of land, where the owner is in actual possession and in the enjoyment of the premises, something more-than mere occupancy upon the part of another must be shown in order to abridge the title of the true owner. Suppose Mrs. Coe had executed a conveyance of these premises alone, and the husband had. refused to give possession; would any court have listened for a moment to any claim of title or right to possession which the husband could have established by such evidence as this? Clearly not. And unless he had some title by which the estate of his wife was abridged, and by which he would have possessed if he had not executed the deed,—some right to and interest in the premises,—the plaintiff in this action cannot recover, as held by the court of appeals. Indeed, the whole evidence shows that all the acts done were such as grew out of the marital relation, and such as would be likely to exist where the husband lived with his wife in her house, upon her land, and transacted her business for her as her agent. This the court of appeals has held to be insufficient. There is no evidence that the wife, by any act or agreement upon her part, express or implied, had surrendered to her husband any interest in the property, or had done anything which necessarily took from her some right or incident ordi-. narily pertaining to the ownership of real estate. As already suggested, what court would listen for a moment to any claim of title in the husband if he had not joined with his wife in the deed? Suppose an execution had been issued against the husband; what right or interest in this estate could have been sold? Clearly, nothing. Upon what basis, therefore, is the claim to rest that he had any title or interest in these premises which was adverse to that of his wife, or which in any way diminished her estate? Our attention has been called to the case of Alexander v. Hard, 64 N. Y. 228, as an authority establishing the claim of the plaintiff. The facts in that case were entirely different from those in the one at bar. In the case cited, the husband had built the house upon the land of the wife, in which he lived with his family, having possession and control thereof. He operated the farm in his own name, owning the stock upon it, and' providing for his family; and the court held that a jury would be justified in finding that his wife had put him in possession of the *737farm, and consented to his building upon and occupying it in his own name and on his own account. No such extreme facts appeared in the case at bar, and none of the things done by the husband in connection with this property, as already stated, exceed those which would be ordinarily done by the husband who was living with his wife upon her property, and looking after her interest.

We think, therefore, that the finding of the court below was erroneous, and that the judgment appealed from must be reversed, and a judgment entered in favor of the defendant, adjudging that the husband had no estate in the premises in question capable of sale and conveyance, with costs of the court below and of this court, and an extra allowance of 5 per cent. All concur.

1

20 N. Y. Supp. 748 and 31 N. Y. Supp. 1130.

2

36 N. E. 870, 42 N. E. 17, and 26 N. E. 611.