
    Wiles v. Peck.
    The submission to arbitration of any claim to a freehold in real estate, being prohibited by statute, is not merely voidable, but is void and incapable of ratification.
    Since the act of 1849, for the protection of the rights of married women, it seems that no acknowledgment is requisite to a conveyance of the separate estate of one.
    Appeal from the Supreme Court. This action was commenced in August, 1856, to recover damages for an alleged trespass upon a farm in the county of Cortland, and was tried in January, 1858, at the Cortland Circuit, before Mr. Justice ' Mason and a jury, when» the plaintiff was nonsuited. An exception to the decision granting the defendant’s motion for a nonsuit, which was affirmed at the general term, presented the only question brought here for review.
    The facts admitted and proved on the trial were as follows: . William Cameron, who, at the time -of his death, was seised of the premises in controversy, died intestate, in August, 1850, leaving a widow, and one son (William H. Cameron), and six daughters, one of whom was the wife of the defendant. All the daughters were married, and their husbands living. Shortly after the death of William Cameron, the widow and all the daughters, with their husbands, executed an instrument, by which, after reciting that William Cameron died without making any formal or legal disposition or division of his estate, real or personal, and believing that he had made his wishes known in reference to such disposition or division to his wife, and to his brother, Peter Cameron, previous to his decease, the parties agreed to submit “the matter of such dispbsition or division ” to the decision of said widow and Peter Cameron, and abide such decision as heartily and firmly as if the said William Cameron had done the same by his last will and testament. And they further agreed and bound themselves, that if they, or either of them, should refuse to abide such disposition or division, that they, by said instrument, released all their right, title and claim to the estate, both real and personal, of which the said William Cameron died seised, or of which he was possessed, and that that indenture was intended to operate as a quit-claim to all real estate of said William Cameron, in case of such refusal, by any one refusing. This instrument was signed and sealed by all the parties, but there was neither subscribing witness nor acknowledgment of its execution.
    Shortly after the submission, the widow and Peter Cameron made their award in writing, with a subscribing witness, by which they gave to William H. Cameron the farm on which he resided, on his paying certain sums to three of the daughters, including one hundred dollars to ISTancy Peck (wife of the defendant), all the amounts payable in two years with interest; and they directed that all the heirs should give a joint quit-claim deed to said William H. Cameron of the premises. A colt was awarded to another daughter, and all the remainder of the estate, which included the farm on which the alleged trespass was committed, as well as some personal estate, was awarded to the widow for life, on her paying one of the daughters twenty-five dollars, and at her decease was to be equally divided between the daughters. When the award- was made, some of the heirs were present, but Mr. and Mrs. Peck were not. A quit-claim deed, of the farm awarded to William H. Cameron, was there drawn up, in which the widow and daughters, and their husbands, were named as grantors, and William H. Cameron as grantee, which was then and soon afterwards signed by all the grantors except Mr. Peck. Eb formal delivery of the deed was shown, but it was in the hands of William H. Cameron, about four weeks after its date, and was delivered by him to a justice of the peace for the purpose of obtaining the acknowledgment of its execution by the grantors, and with a request, when the acknowledgments were obtained, to return the deed to him. All who signed it acknowledged its execution, excepting Mrs. Peck, who refused. The deed was not delivered to Mr. Cameron, after the acknowledgments were taken, but remained in the possession of the justice, and was burned by accident, with the building in which it was kept. The widow and William H. Cameron paid to the daughters the several sums directed by the award to be paid to them, excepting the one hundred dollars required to be paid to Mrs. Peck, which was offered to her by her brother within the two years, and she refused to accept it. William H. Cameron sold the farm awarded to him, about three years after the award. The widow occupied the other farm (which was the homestead of her husband in his lifetime,) until the 8th of July, 1856, when she leased it to the plaintiff for three years. The plaintiff took possession the next day and remained in possession until after the commencement of this action. In the latter part of the same month, the defendant, with his wife and children, and in right of his wife and as lessee of Julia Tarbell, one of her sisters, entered upon the premises, against the remonstrances of the plaintiff, and remained there some days, in the occupancy of the house and barn, and on account of that entry this action was brought. It was proved that shortly after the award was made, Peck said he was satisfied with it; and in the spring of 1856, when Mrs. Cameron was about leasing the farm, he applied to her for it, and she refused to rent it to him. In the spring of 1851, William H. Cameron released to his sisters, excepting Mrs. Peck, all his interest in his father’s estate, . aside from the farm awarded to him.
    On these facts, the defendant’s counsel moved for a nonsuit on the ground that the award was void and transferred no title to the premises to Eleanor Cameron, the lessor of the plaintiff, and that the defendant and his wife had done no act to estop them from questioning its validity: that the defendant was not a trespasser, having entered in right of his wife, who was a tenant-in-common of the premises in question.
    The plaintiff claimed that a cause of action was fully proved: that the widow had a. life estate under the award, ratified and acquiesced in by both the defendant and his wife: that the deed of the wife was good and effectual between the parties, though not acknowledged.
    The motion was granted, and the plaintiff’s counsel excepted.
    
      Amasa J. Parker, for the appellant.
    
      John H. Reynolds, for the respondent.
   Selden, J.

On the death of William Cameron, the fee of the farm in controversy descended to his seven children, as tenants-in-common, subject to their mother’s right of dower; and Mrs. Peck, as one of the tenants-in:common, and her husband, by her authority, were justified in entering upon the premises, unless she had in some way divested herself of her right. The widow’s right of dower was but a chose in action, and no one claiming under her by virtue of such right could exclude any of the heirs. (Green v. Putnam, 1 Barb., 500.)

This court has already decided that the submission and award which have been introduced in this case are void. The question came before the court under the following circumstances. : Mrs. Cameron having received letters of administration upon her husband’s estate, neglected to file in the office of the surrogate an inventory of the estate, and a summons was issued by the surrogate, on the application of Hiram Peck, in behalf of his wife, requiring her to return the inventory, or show cause why an attachment should not issue against her. On the return of the summons no inventory was filed, and the administratrix showed, for cause why an attachment should not issue, the submission and award which have been introduced by her tenant in this case. The surrogate held the cause shown sufficient, and refused the attachment This order was affirmed by the Supreme Court. On appeal to this court, the judgment of the Supreme Court and the .order of the surrogate were reversed, on the ground that the submission and award were void.

It is now claimed that the submission and award have been ratified by the defendant and his wife, and are therefore effectual to protect Mrs. Cameronfs life estate in the premises in dispute; or at least that there was some evidence of ratification which gave the plaintiff a right to submit the question to the jury. It is also claimed that the acts of Peck and wife have been such as to estop them from claiming the premises in hostility to Mrs. Cameron. In regard to the question of ratification, it is sufficient to say that the submission and award were pronounced void, because they were in conflict with the statute, which declares that no submission to arbitration “ shall be made respecting the claim of any person to any estate, in fee or for life, to real estate.” (2 R. S., p. 541, § 2.) Being prohibited by statute, the submission and the award in pursuance of it were not merely voidable, but void, and consequently incapable of ratification. Acts which would pass the title, or estop Mrs. Peck from claiming it, without reference to the award, and such only, would be available to the plaintiff, to sustain his action.

In considering the question of estoppel, the acts and declarations of the husband must be disregarded. The property belonged, under the acts of 1848 and ’49 “ for the better protection of the property of married women,” exclusively to the wife, and the husband could do no act to prejudice her title. The only act of' the wife, upon which reliance is placed, as creating an estoppel, is her signature to the deed purporting to convey to her brother the farm awarded to him. If the question were now first presented, whether the statute of 1849, authorizing a married woman to convey real and personal property “in the same manner and with the like effect as if she were unmarried,” rendered her execution of a deed for the conveyance of land effectual without acknowledgment, I should be inclined to hold that it did not, and that the provision of the Revised Statutes declaring that no estate of a married woman residing in this State should pass by any conveyance not acknowledged, still remained in force, on the ground that there is no express repeal, and a repeal by implication is never held to take place where both acts may stand together. The contrary, however, has been held, and it is too late now to question the correctness of that conclusion, involving, as it doubtless would, the validity of many titles. (Blood v. Humphrey, 17 Barb., 660; Andrews v. Shaffer, 12 How., 441; Yale v. Dederer, 18 N. Y., 271.) Assuming, however, that the deed was effectual to convey her interest in the land described in it, there was nothing in the transaction to estop her from claiming her interest in the other lands descended to her from her father. The absence of any evidence whether her signature to the deed was the first or the last, or that it was designed to influence, or that it did influence, the action in any respect of her mother, or her co-heirs, leaves the plaintiff’s case without any of the features which characterize an estoppel. (3 Hill, 222; 9 Barb., 618; 3 Kern., 638.) Indeed, whatever may have been her declared object in executing that deed, and however it may have influenced the other parties, I am not able to see any ground on which it could be held to estop her from asserting her title to other lands. (2 Leon., 285; Reeves’ Dom. Rel., 2d ed., 108.) Nothing, therefore, appears upon the record in this case which could justify a jury in finding that Mrs. Peck had parted with, or impaired her title to one seventh of the farm in controversy, which descended to her on the death of her father, and her entry upon it, and that of her husband with her, was rightful, and the nonsuit was properly granted. The defendant was, I think, equally protected, and for substantially the same reasons, under the lease from Mrs. Tarbell.

The apparently harsh and unfili'al character of the defendant’s conduct is urged as a reason for sustaining the widow’s right to the exclusive possession of this homestead. Whether circumstances may not exist, which could not properly appear in the case, to soften if not remove the harsh features of the transaction, we have no means of knowing; but if we knew affirmatively that there were none, it would still be our duty to dispose of the case according to the legal rights of the parties as they appear clearly before us, leaving any moral questions which may result from the conduct of the parties to be disposed of by themselves. All attempts of courts, especially courts of last resort, to do better justice in particular cases than the rules of law will admit, are proverbially prone to fall short of their object in the particular cases; and by the introduction of bad precedents are found by experience to be promotive of injustice.

The judgment of the Supreme Court should be affirmed.

Denio, Ch. J., Smith, Gould and Allen, Js., were also for affirmance.

Sutherland, J., (dissenting.)

The submission and award were void. (Peck v. Cameron, in Court of Appeals, not reported.) The award was made the 13th of August, 1850. The deed for the farm which was awarded to William H. Cameron, which was signed and sealed by all the heirs of William Cameron, the intestate, and by his widow, and delivered absolutely 'and upon no condition to William H. Cameron a few days after the award, was good and operative between the parties, though not witnessed or acknowledged, and took effect immediately on its delivery. (Wood v. Chapin, 3 Kern., 514; 17 Barb., 103.)

By the act of 1848, as amended in 1849, Haney Peck, the wife of the defendant, could convey to William H. Cameron her estate or interest in the farm awarded to him as if she had been a feme sole. Her husband’s rights or estate as tenant by the curtesy, was subject to his wife’s power of conveyance given by the statutes.

The 30th of May, 1851, William H. Cameron released all his interest in the estate, except the farm awarded to him, to all the heirs except the defendant’s wife. He and the widow, also, after the award, and it is to be presumed from the case, after the delivery of the deed to him of the farm awarded to. him, paid- the sums of money required by the award to be paid by them to the heirs, except that the defendant’s wife refused to accept the $100, which by the award William H. Cameron was to pay her.

The widow lived on and had possession of the farm in which she was awarded a life estate until 1856, when she executed to the plaintiff two leases, with covenants of peaceable possession for the bous in quo, under which the plaintiff was holding at the time of the alleged entry and trespasses.

It is to be presumed, I think, that the widow would not have executed the deed to William H.. Cameron, or paid the money she was required to pay by the award, or give the leases to the plaintiff with covenants of peaceable possession, if the defendant’s wife had not ratified the award, so far as to execute the deed to William H. Cameron for the farm awarded to him. Therefore, I think she was estopped, at least so far as asserting a right of entry, possession or title against the plaintiff, and if she was estopped, her husband was, his rights being derived from her or coming by virtue of her estate.

I think the judgment of the Supreme Court should be reversed.

Davies and Wright, Js., were also for reversal

Judgment affirmed.  