
    Kolls vs. De Leyer, impleaded, &c.
    Where a married woman, having a separate estate in lands, conveys the same by deed with covenants of seisin and against incumbrances, she is bound by the covenants, and liable for a breach thereof; such covenants being directly beneficial to her separate estate, inasmuch as their effect is to assure the title and enlarge the purchase money.
    EMURRER to complaint. The complaint alleged that the defendant, Margaretta De Leyer, wife of the defendant, Anthony De Leyer, being possessed of a separate estate in lands, conveyed a portion thereof to the plaintiff, by a full covenant warranty deed, including a covenant that the premises were free from incumbrances of every description. The husband united in this deed so far as to convey his interest if any he had, but he did not join in the covenants of warranty. It was further alleged that at the time of making this conveyance the premises were subject to the incumbrance of certain unpaid taxes, which were a lien thereon, and which the plaintiff had been compelled to pay. This action was brought to recover the amount so paid, as being a charge on the wife’s remaining separate estate. Demurrer for various causes.
    
      George H. Fisher, for the plaintiff.
    I. The only question of importance is whether, under the circumstances stated, an action lies to charge the remaining separate estate of the defendant, a married woman, with the damages which have resulted from the breach of warranty. The cases and the law are summed up in Yale v. Dederer, (22 N. Y. Rep. 450,) and the result may be stated in language used by the court of appeals, in the decision of that case, viz: “In order to create a charge, &c. on the estate of a married woman, the intention to do so must be declared in the contract, or the consideration must be obtained for the direct benefit of the estate itself. In this case, the contract is the warranty contained in the deed. The consideration was the consideration expressed in the deed. It is submitted that no possible consideration could move more directly to the estate, for its benefit, than a consideration paid to the grantor, for a conveyance of a portion of that estate. The court will not inquire in such a case whether the sale was, on the whole, a favorable one for the estate. The “benefit to the estate” spoken of, is a technical expression, having reference to the connection of the transaction with the estate, and not to the nature of the transaction, whether favorable for the estate or otherwise. Moreover, in a transaction, fair on its face, in which there is no suggestion of fraud, illegality or attempt of any kind to impose upon, or take advantage of one side or the other, the court will presume that the transaction was mutually beneficial.
    II. It is further observable that this incumbrance was a tax ; and it does not admit of doubt, that the payment of a tax, lawfully imposed on an estate, or a portion of an estate, is for the benefit of that estate generally, or for the benefit of the whole estate.
    III. It is settled that the joinder of a defendant more than is necessary, does not justify a demurrer. The “defect of parties,” spoken of in the code, is a deficiency of parties. (Peabody v. Wash. Ins. Co., 20 Barb. 339. 8 How. 389. 17 N. Y. Rep. 592. 12 How. 134. 14 id. 517. 16 id. 325.)
    IV. If it be objected that the complaint is not sufficiently definite and certain to lay the foundation for a judgment, a motion for that object would be proper, and not a demurrer.
    
      F. Byrne, for the defendant.
   By the Court, Brown, J.

This is a demurrer to the plaintiff’s complaint. The causes of .demurrer are very numerous, and all of them but one very frivolous.

The defendant is a married woman, having a separate estate of her own. Prior to the first day of February, 1858, and since the passage of the acts in regard to married women, and giving them the right to acquire, hold, use, grant and convey real property the same as femes sole, she acquired by purchase a lot of ground in the twelfth ward in the city of Brooklyn, the title to which she held in fee, in her own right. On the 15th day of February, in the same year, being so seised of the said lot of ground, she conveyed the same to the. plaintiff, by the usual deed of conveyance with covenants of seisin, and that the same were free from incumbrances of every description. There has been a breach of the last of these covenants, the estate at the time being incumbered with certain taxes which the grantee (the plaintiff) has been compelled to pay to save the estate from sale, &e. All these facts appear by the complaint.

The question raised by the demurrer is whether the duty, debt or obligation created by the covenants in the deed, were directly beneficial to the estate of the grantor. This cannot be a debatable point. It is too plain, I think, for argument. The obvious effect of the covenants, in a deed of conveyance, is to assure the title and enlarge the purchase money. No one doubts that the reason why the grantee demands and the grantor makes these covenants, is to afford the former a complete indemnity to the extent of the purchase money should the title fail. This duty assumed by the grantor under the contract may be, and often is, the principal inducement to the purchase. It enlarges the purchase money, and thus to an extent more or less is clearly for the benefit of the estate of the grantor. It may be said, although the remark is not necessary to the decision of the demurrer, that covenants of warranty, seisin, and quiet enjoyment, are incident to and usually attend upon conveyances of real estate, and in the absence of all limitation and restraint upon the power of a married woman, the legislature when conferring rhe right to acquire, use, grant, devise and convey real property in the same manner as femes sole, must have intended conveyances in the usual manner and with the usual covenants to assure the title.

[Kings General Term,

March 9, 1864.

The order overruling the demurrer should be affirmed, with costs.

Brown, Lott and Scrugham, Justices.]  