#### Townsend *v.*Townsend.

An agreement made during coverture, between a husband, his wife, and a trustee of the latter, that in consideration of her enjoying separately and absolutely controlling her separate property, she would relinquish her dower in his lands, is invalid, and cannot be enforced against her in an action for her dower.

In a complaint under the code, asking to have dower set off and admeasured, it was held that it might be regarded as a substitute for the former petition for ad-measurement, or the former bill in equity; and thus it was no objection that the defendant, who was seized, was not in the actual possession of the lands, or that six mouths had not elapsed since the death of the husband.

April, 1850.

Demurrer to an answer. The complaint stated the mar*712riage of the plaintiff to Benjamin Townsend in 1839, his death in August, 1848, and that during her coverture he was seized of various lands in the city of New York, particularly described. That her husband devised the lands to the defendant, some for life and some in fee, who is in possession of the lands described, either personally or by his tenants, and in the receipt of the rents and profits; and that the plaintiff is entitled to dower therein. The complaint prayed judgment for one equal undivided third of the premises as and for her dower, and that it might be admeasured and set off to her by commissioners.

The defendant, by his guardian *ad litem,*answered, among other things, that a large part of the premises lie vacant and unoccupied, and are wholly unproductive; a portion of them were let to and possessed by tenants at B. Townsend’s death, and the rents were collected for the defendant’s use and benefit, but he is not personally in the actual occupation or possession of any part of the premises. The answer then set up an indenture executed between B: Townsend, the plaintiff, and a trustee on her part, in 1845, for the expressed purpose of assuring to each of the *former, their*separate lands, *free from*any claim of the other for dower or curtesy, by which the plaintiff was to be at liberty to receive the rents of her own lands during her life, to sell or mortgage the same, and to devise the same, and in all these acts B. Townsend agreed to execute all necessary instruments. The trustee, with her assent, agreed she should never claim dower in B. T.’s lands, but would, whenever required, release the same. The indenture was duly acknowledged. The answer stated that the plaintiff, after its execution, enjoyed all the fruits of her separate property, as if she were sole ; and it submitted that she was not entitled to dower in any of the lands claimed by her.

To this answer the plaintiff demurred, and stated the following causes of demurrer, viz:

1. That the indenture in the answer alleged did not release the plaintiff’s right of dower in and to the premises mentioned and described in the complaint.

2. That it appears that the plaintiff and Benjamin Townsend, before its execution, had been lawfully married, and were at the *713time of such execution cohabiting together as husband and wife, and therefore such indenture was, as to the plaintiff, void, and the alleged covenant or agreement therein contained was of no binding force or effect upon her.

3. That it does not appear that there was any sufficient valid or legal consideration for the indenture.

4. That the answer does not set forth facts sufficient to form a defence.

*M. S. Bidwell,*for the plaintiff.

*J. A. Lott,*for the defendant.

Paine, J.

The only question upon the merits of this case is, whether a contract entered into between husband and wife during coverture, by which it was agreed that in consideration of being permitted to control and enjoy the property which she had at the marriage, she should relinquish her claim to dower, can be enforced against her by depriving her of dower.

I know of no such doctrine, nor any case in support of it. Contracts made by the wife with her husband, may, under some ■circumstances, by compelling an election, be incidentally enforced against her. It was, upon this ground, very evidently, that the chancellor proceeded in disposing of the case of *Livingston*v. *Livingston, 2*Johns. Ch. Rep. 539. There the wife, who was dead, was represented by her infant children, for whom the court asserted its right to make, and did make the election. There, the property on each side having survived the marriage, there was a subject for election. But here probably the husband’s legal right to all the wife’s property ceased at his death. At any rate, the answer does not set up that the widow is enjoying, or has enjoyed, since his death, any of the property to which he or his heirs are entitled. The doctrine of election, therefore, cannot be applied to the case.

What the chancellor says about the contract between the husband and wife, in *Livingston*v. *Livingston,*refers only to the possibility of such a contract, and whether, if bona fide, it may not be carried into effect under some circumstances. The au*714thorities which he cites, go no further than this; and I imagine that neither he nor they thought of asserting that such a contract can be enforced against the wife at law, or in any way, except where some kind of equitable relief can be found.

The defendant, on the argument, insisted on two technical grounds of defence, both of them based upon the supposition that this is an action of ejectment. These grounds are, first, that six months had not elapsed after the death of the husband, before the suit was brought, (2 R. S. 303, § 2, subd. 2;) and, secondly, that the defendant is not the actual occupant, nor exercising acts of ownership upon any parts of the premises, nor claiming title thereto.

It would be a sufficient answer to both these objections, to say that they are not set up as grounds of defence by the answer. With respect to the first, there is not the slightest indication in the answer, that such a defence was thought of; on the contrary, the language of the answer, echoing the complaint, states the time of the husband’s death so vaguely that it is impossible to decide upon this demurrer, that six months may not have expired. Nor does it any where appear upon the pleadings, when the suit was commenced. This is hardly a compliance with the existing law as to a statement of the defence.

As to the second objection, the answer merely says that a portion of the premises are occupied by tenants who pay the defendant rent; that the greater portion is unoccupied; and that the defendant is not personally in the occupation of any part of the premises. But the answer does not say that as regards any part of the premises, the defendant is not a proper party ; that any other person should have been made a party; or that either of these grounds will be insisted upon as a defence. This, also, it seems to me, is not precisely according to the existing law.

But supposing these defences to be well set up, have they any validity *1*

The code abolishes the forms of existing actions, and the distinction between suits at law and in equity, and provides that there shall hereafter be but one form of action, (§ 69;) and that all rights of action given or secured by existing laws, may be prosecuted in this single form of action, (§ 468.)

*715Now, before the code, there was, besides the action of ejectment for dower, a petition for admeasuring the same; and they both sought and obtained the same relief, viz., admeasurement of dower by commissioners. That is precisely the relief which the complaint in this case prays for, and therefore it may quite as well be in the place of the petition as the ejectment; and if so, it is free from both these objections.

But it is said the petition is preserved by the code, (§ 471,) and as this is not a petition, it must be the ejectment. It is true the petition is preserved, but a party may either adopt that, or the summons and complaint. ($ 468.) The two sections construed together, merely secure him an election between the two modes of proceeding. This is construing them so that they both stand.

But suppose further, that the form of the petition must be adhered to, and that this, therefore, is not a substitute for that, still there is nothing to prevent its being a substitute for a bill in equity, which undoubtedly lay for the admeasurement of dower, *(Badgley*v. Bruce, 4 Paige, 98,) and which is also free from these technical difficulties.

The plaintiff must have judgment upon the demurrer.