
    John S. Robbins, administrator of Nancy T. Long, vs. James M. Long.
    Where a husband joined with his wife in a conveyance of her separate estate by deed, with covenants by the husband, for himself and his wife, of seizin, quiet enjoyment, warranty, and against encumbrances, and the purchaser gave a mortgage to the husband to secure a part of the purchase money on- a bill filed by the administrator of the wife, who survived her husband, to foreclose the mortgage, it was held—
    
      That it is no defence to a recovery of the amount of the mortgage that adverse claims have been set up to a portion of the land included in the deed to the defendant, when the defendant has never been evicted from any part of the land, and it is not alleged that any action is pending for the recovery of any part of it.
    TSfor can the mortgagor set up as a defence to the wife’s claim on the mortgage, that after the adverse claims were made, it was agreed by the bus band and wife that they would buy in the adverse claims, and transfer them to the defendant, and that the balance of the purchase money should not be paid until the title was perfected, and if any portion of the title could not be perfected, an allowance should be made to the defendant therefor.
    If such a contract was made it could not bind the wife. Damages cannot be recovered on a contract made by a married woman.
    Nor would such a claim avail against the husband as a defence to a recovery upon the mortgage. Damages for the breach of a subsequently made contract cannot be set off against the amount due upon a mortgage.
    
      Depue and Beasley, for complainant.
    
      Depue. If the mortgagor has been evicted we admit he may on foreclosure have a deduction. Coster v. Monroe Man. Co., 1 Green’s Ch. 467.
    But there must be an actual eviction, or what is equivalent. Glenn v. Whipple, 1 Beas. 50.
    And to entitle him to such relief, he must show valid covenants of warranty upon which he might recover at law. The ground of relief is to prevent circuity of action. If there are no covenants of warranty the defence is not available.
    Tiie plaintiff’s intestate, being a married woman, could not be bound by her covenant. Jackson v. Vanderheyden, 17 J. R. 167; Den v. Demarest, 1 Zab. 525.
    
      J. P. Vroom and P. D. Vroom, for defendant.
    The mortgagees conveyed to defendant land to which they had no title. It is objected that an eviction must be shown before a failure of title can be set up against the foreclosure of a mortgage.
    The design of the rule and its qualification was —
    
      1. That a defect of title is available as a defence.
    2. That eviction should be shown.
    Though Chancellor Kent held to the old rule, he saw that there might be necessity for interference outside of the rule. Abbott v. Allen, 2 Johns. Ch. 519.
    Our own court has held that an eviction is not necessary. Coster v. Monroe Man. Co., 1 Green’s Ch. 468. In that case there had been a trial and judgment in ejectment.
    The principle on which the court go is not merely because judgment has been entered — the ground is certainty.
    If the failure of title,appears with as much certainty as if judgment had passed, there is no reason why the court should not interfere.
    We have here as decisive evidence of want of title as an eviction or a judgment would furnish.
    The court will interfere where justice can be done and where there is certainty. Couse v. Boyles, 3 Green’s Ch. 212.
    
      Beasley, in reply, cited Shannon v. Marselis, Saxton 413; Van Waggoner v. McEwen, 1 Green’s Ch. 412; Jacques v. Esler, 3 Green’s Ch. 461; Van Riper v. Williams, 1 Green’s Ch. 407; Woodruff v. Depue, Ante 168; Leggett v. McCarty, 3 Edwards 124; 2 Kent 471-2; Governeur v. Elmendorf, 5 Johns. Ch. R. 79.
    As to the covenant of the wife. Rawle on Cov. 489, 458-61, note; 1 Story’s Eq. Jur., § 212; 1 Sugden Vend. 422, § 40 (7th Am. ed.); 2 Roper, Husb. and Wife 235, 184.
   The Chancellor.

The complainant’s intestate being, while sole and unmarried, seized of certain real and personal estate in the year 1832, intermarried with William Long, the father of the defendant by a former marriage. On the seventeenth of January, 1832, an antenuptial contract had been entered into between the parties, hy which it was, among other things, agreed that the intended husband should not intermeddle with, nor have any right or title, in law or equity, to the said real estate, but that the same, and the proceeds thereof, should remain her separate estate, subject to her control and disposal.

On the tenth of October, 1834, the husband and wife, for the consideration of $1500, joined in the conveyance of the wife’s real estate to the defendant. The conveyance is made with covenants, by the husband for himself and for his wife, of seizin for quiet enjoyment against encumbrances and of general warranty. To secure the payment of $1000 of the purchase money, the defendant gave his bond to the husband, bearing even date with the deed, payable in one year with interest, secured by a mortgage on the land purchased. This mortgage the bill is filed to foreclose. William Long, the husband, died in March, 1843. The wife survived him, and died on the tenth of March, 1861, intestate. Administration upon her estate was duly granted by the surrogate of Warren to the complainant.

There is no denial of the equitable right of the wife to the bond and mortgage, nor of the authority of the complainant, as her administrator, to sue for its recovery. The execution of the bond and mortgage is admitted. Kor is it disputed that the amount claimed to be due thereon remains unpaid.

The first ground of defence is, that adverse claims have been set up to portions of the land included in the deed to the defendant. The answer does not allege, nor does the evidence satisfactorily show that the defendant has been evicted from any portion of the land conveyed to him. One-of the witnesses testifies, and I think he is supported by the weight of the evidence in the cause, that the defendant is in-possession of every foot of land covered by his deed. It is not alleged even that an action is pending for the recovery of any portion of it. It is clear that this constitutes no defence whatever to the complainant’s light of recovery. Shannon v. Marselis, Saxton 425; Glenn v. Whipple, 1 Beasley 50; Rawle on Cov. of Title 521-526.

As a further ground of defence, it is urged that, after these claims were made to a part of the premises included in the defendant’s deed, it w-'as, for the defendant’s security. agreed by William Long and his wife, the grantors in the deed, that they would procure title to the whole of the property, to be perfected by purchasing the rights of those who pretended to claim the same, and transferring them to the defendant; that the balance of the purchase money should not be paid until the title was perfected ; that in the meanwhile the interest should cease, and that if any portion of the title could not be perfected, an allowance should be made the defendant therefor.

There is no satisfactory evidence that such contract was ever made. But if its existence were admitted, it clearly could not bind the wife. No action can be maintained against her or against her estate at law for the recovery of damages upon a contract made by a married woman. Nor would it avail, as against the husband, as a defence to a recovery upon the mortgage. It would be setting off against .the amount due upon the mortgage damages for the breach of a subsequently made, contract. I know of no principle upon which such claim could be sustained. The utmost extent to which any of the cases have gone is, that where the consideration of the mortgage has failed, or where the covenants of the deed for the land, for the purchase of which the mortgage was executed, have been violated, a court of equity will give relief. A subsequently incurred debt, justly due from the complainant to the defendant, cannot be set off against the claim upon the mortgage, much less a claim for unliquidated damages for the violation of any other contract.

It is further urged that, in pursuance of the alleged agreement, William Long, the husband of the intestate, purchased a part of the land included in the deed to the defendant; that other land held under the same title, and included within the defendant’s title, is claimed by George B. Winters; and that after the death of William Long, his widow, the complainant’s intestate, purchased another tract of land, which was included in the deed to the defendant, and that the title is still outstanding, adverse to the title of the defendant. As against all these claims, there would seem to be a perfect defence by the length of the defendant’s enjoyment. It appears, from the evidence, that soon after the conveyance to the defendant, in 1834, he enclosed all, or nearly all of the land affected by these adverse claims, and that he has continued in the uninterrupted possession from that time till the present; and if it should be alleged that, In regard to that part of the land claimed by Winters there has been a mixed possession, tbe fence between the adjoining tracts not having been maintained, and both parties claiming title, the difficulty is effectually removed by the releases executed by Winters and his mortgagee to the defendant since the commencement of this suit. If it should be alleged that the titles acquired by William Long and his wife to parcels of land within the bounds of the defendant’s title may prove superior to his own, the answer is, that the after acquired title of William Long, under his covenant of warranty, will enure to the benefit of his grantee, and the heirs of Nancy T. Long will be restrained from enforcing her claim against the grantee of her husband, who conveyed as her trustee and for her benefit.

There is no aspect of the case in which the defence can be available. There has been no eviction, actual or constructive. N o action has been brought against the defendant to effect an eviction; nor does there appear to be any ground upon which his title under the deed can be disturbed.

The complainant is entitled to the relief prayed for.

Cited in Conover v. Stillwell, 5 Vroom, 59.  