
    Knowles & Hume vs. McCamly and others.
    Where the husband and wife entered into a written contract for the sale and conveyance of a lot of land which was held in right of the wife, but such contract was not acknowledged by the wife, in the form prescribed by law to make the contract binding upon her, and the husband and wife after-wards, in attempting to carry the contract into effect, conveyed to the purchasers, by mistake, another lot in which the wife had no interest, and the wife afterwards died leaving an infant daughter her heir at law ; Held, that as the contract was not legally binding upon the wife, the court could not compel her daughter to convey to such purchasers the interest which had descended to her as heir at law to her mother.
    
      Held also, that the purchasers were entitled to a decree, against the husband, to reform the deed, so as to convey to such purchasers his interest, as tenant by the curtesy, in the lot which he had contracted to convey; and to a decree that he should procure a conveyance of the interest of the heir at law of his wife in such lot, or pay to the purchasers their damages by reason of such defect of title.
    To authorize the court of chancery to make a decree against a feme covert, or her heirs, for the specific performance of an agreement to convey her interest in real estate, she must not only have executed the contract with her husband, but must also have duly acknowledged the same before the proper officer, upon a private examination apart from her husband.
    The principle upon which the court of chancery enforces a charge made by a feme covert upon her separate estate, in the hands of her trustee, is that as to such separate estate she is to be considered and treated as a feme sole ; and that the charge upon such separate estate is in the nature of an appointment of her equitable interest in the trust estate.
    
      1843. August 15.
    But where the legal estate is in a feme covert, who is a resident of the state, her deed or contract, conveying or agreeing to convey such estate, if not acknowledged by her according to the statute, is void in equity as well as at law.
    A contract to convey lands which is signed by the husband and wife, but is not duly acknowledged by the wife, is the contract of the husband only; and is neither binding upon the wife, nor upon her heirs after her death.
    The bill in this cause was filed against J. McCamly, the surviving husband of Amy McCamly deceased, and against Frances Amy McCamly, her infant daughter, to correct an alleged error, in the description of the premises, in two deeds given to the complainants, executed by J. McCamly and his wife, in the lifetime of the latter. The facts, as stated in the bill, and as ascertained by the master’s report, were as follows :
    In 1811, David Buck the elder, became the owner in fee of lot No. 103, in West Pulteney, by virtue of a conveyance from N. Warren, and continued such owner until the time of his death. He died previous to 1832, leaving his son David, and his daughter Amy, who afterwards married the defendant J. McCamly, his only children and heirs at law. In May, 1832, J. McCamly and D. Buck the younger, entered into written contracts with D. Hume and J. Knowles, the complainants, respectively, to sell and convey to Hume the north one-fourth, and to Knowles the remaining three-fourths of the premises, by the name and description of a lot number-, in West Pulteney township, in the town of Riga, known by the name of the Buck lotat the rate or price of $25 per acre, payable at the times and in the manner in the said contracts specified. And by the terms of such contracts the vendors were to give to the purchasers, respectively, good and sufficient warranty deeds of the premises, within one year from the date of the said contracts; provided such purchasers should have paid all the purchase money due up to that time, and should make satisfactory security for the residue of such purchase money by mortgages on the premises, or otherwise. The name of Amy McCamly was signed to the contracts, but they were not acknowledged by her, as required by the statute, to make them valid and binding contracts affecting her interest in the premises agreed to be conveyed. Nor was there any proof produced before the master, to whom it was referred to take proof of the facts and circumstances stated in the bill, to show that she ever signed such contracts. In June, 1833, H. Brewster, of Riga, in the county of Monroe, who drew the original contracts, was applied to by Buck and J. McCamly, and Hume, one of the complainant's, to draw deeds for the purpose of conveying the premises to the purchasers, respectively, according to the contracts. And he drew deeds accordingly, which were executed by Buck and by J. McCamly in his presence, and were signed and acknowledged by Mrs. McCamly, afterwards, before a commissioner of deeds in Onondaga county. But these deeds, instead of conveying to Hume the. one-fourth, and to Knowles the three-fourths of the Buck farm in Riga, purported to convey the one-fourth and the three-fourths iC of lot number one hundred and twenty-three in West Pulteney township, in the town of Riga and without any description of the premises indicating that lot No. 103, which was, in fact, “ the Buck lot in West Pulteney township,” mentioned in the contracts, was the lot intended to be conveyed. This mistake in the deeds was not discovered by the complainants until March, 1837 ; previous to which time Mrs. McCamly had died, leaving an infant daughter her only child and heir at law, and J. McCamly had left the country and gone to Texas. David Buck, upon being applied to by the complainants, gave “them deeds of all his interest in the lot described in the contracts. The infant defendant put in a general answer, by her guardian ad litem, denying any knowledge of the allegations in the complainants’ bill, and submitting her rights, in the usual form, to the protection of the court; and the bill was taken as confessed by J. McCamly, the other defendant, as an absentee. The cause was heard upon the bill, and upon the answer of the infant defendant, and upon the report of the master to whom it was referred to take proof .of the facts and circumstances stated in the bill.
    
      
      O. L. Barbour, for the complainants.
    
      J. Rhoades, for the infant defendant.
   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 ex-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 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.  