
    Darby v. Callaghan.
    The demise to a married woman, by a person other than her husband, of a term for years in land, by a lease reserving rent but containing no covenant or agreement on her part for its payment, is a valid grant, by which she may taka and hold the premises to her sole and separate use, under the acts for the protection of the property of married women (ch. 200 of 1844; ch. 375 of 1849).
    When a married woman had the actual possession of land, held by her for her separate use, and has been wrongfully ejected therefrom, she may, under the Code of Procedure, maintain an action in her own name to recover the possession, without joining her husband.
    Appeal from the Supreme Court. The action was brought in the City Court of Brooklyn, to recover the possession of a house and lot. It appeared on the face of the complaint that the plaintiff was a married woman. On the trial she produced and proved a lease, under seal, of the premises in question, executed to her by William D. Murphy, who appeared as her next friend in the action, by which the premises were let and rented to her, for the term of one year and five months, at the yearly rent of forty-five dollars, payable quarterly. The lease was not signed by the plaintiff. She further proved an eviction by the defendant during her term. The court, on the application of the defendant’s counsel and under an exception by the plaintiff, dismissed the complaint on the ground that the plaintiff’s husband was not a party to the suit, and that a contract of lease could not be made with a married woman so as to give her a right to sue alone Upon appeal to the Supreme Court the judgment was affirmed, and the plaintiff appealed to this court, where the case was submitted on printed arguments.
    
      J. L. Campbell, for the appellant.
    
      C. J. Jack, for the respondent.
   Shankland, J.

The plaintiff, who is a married woman, took a lease, under seal, of the premises sought to be recovered in this action, dated September 15th, 1851, for the term of one year and five months, at the annual rent of forty-five dollars, to be paid quarterly to William D. Murphy, her landlord, who owned the premises. The defendant put her out of possession on ths 20th of February, 1852. The lease was executed by the landlord, but not by the plaintiff, and was delivered by Mm to the plaintiff’s husband. On this state of facts the judge of the City Court of Brooklyn dismissed the complaint on the ground that a contract of lease could not be made with a married woman, so as to give her a right to sue alone, without joining her husband. This decision was affirmed in the Supreme Court, and the plaintiff appealed to this court.

By the act of 1849 (p. 528), "any married female r^ay take, by inheritance, or by gift, grant, devise «• beq;mt, firm any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.” A lease for years is a chattel real, and is an interest in lands, within the act above cited, which a married woman may take and hold, the same as if she were unmarried. It is unnecessary to determine, in this action, whether a covenant to pay rent would be binding on her separate estate. She has made no such covenant in this lease, and if she had, the defendant, as a wrong-doer, has no right to raise the question. She was in the lawful possession of the premises by a grant which she had capacity to take, and can maintain an action to recover back that possession.

But it is claimed that the husband should have been joined as co-plaintiff. The Code (§ 114) provides that “when a married woman is a party her husband must be joined with her, except that when the action concerns her separate property she may sue alone.” That exception embraces this case, as she sues for her separate property. This section of the Code was enacted in 1851, prior to the commencement of this action in February, 1852.

The judgments of the courts below should be reversed and new trial ordered.

Bowen, J.

The papers before this court on the appeal in this cause do not show whether the judgment of the Supreme Court, affirming the judgment of the Brooklyn City Court, was rendered at special or general term. The judgment of affirmance is entitled “ Supreme Court,” and there is nothing further indicating by what court it was pronounced; by or before what judges the court was held; or whether one or more, or any judge or judges were present, does not appear.

But as appeals from judgments of the “ City Court of Brooklyn” are to be taken to the Supreme Court at general ' term '(Laws of 1849, 171, § 6 ; id., 1850, 148, § 1), perhaps it should be inferred that the judgment of affirmance, from which the appeal has been taken to this court, was rendered at general term.

If any estate in the land described in the complaint passed by the lease thereof from William D. Murphy to the plaintiff, Mrs. Darby, it vested in the lessee; for although she was a married woman, yet the lease being to her, and the possession under it having been taken by her, the grant must be held to be to her separate use, and not subject to the control or interference of her husband.

The first section of the act of 1848 for the protection of the property of married women (Laws of 1848, 307), declares that the"real or personal property of any “female who may hereafter marry, and which she shall own at the time of marriage, and the rents, &c., shall not be subject to the disposal of her husband, &e., and shall continue her sole and separate property, as if she were a single female.”

The second section provides that “ the real or personal property, &c., of any female, now married, shall not be subject to the control of her husband, but shall he her sole and separate property,” &c.

The third section, as amended in 1849 (Laws of 1849, 528), provides that “ any married female may talce, by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, &e., with like effect as if she were unmarried, and that the same shall not be subject to the disposal of her husband,” &c.

It is claimed that the creation of a term for years is neither a “ gift,” “ grant,” “ devise” or “ bequest,” and is therefore not covered by the provisions of the third section of the act. Lord Coke says (Co. Lift., 45 h.), that “the words ‘demise. lease and to farm let,’ are technical expressioi -i to constitute a lease.” The term “ grant,” although anciently used as applicable more particularly to a conveyance of incorporeal hereditaments, or of such property or rights as could not be transferred by livery of seizin, has now a more comprehensive signification, and includes a “ demise” or “ lease.” Thus Woodfall, in his Treatise on the Law of Landlord and Tenant (p. 5), says: “Regularly, these things must concur in the making of every good lease: First. As in otfar grants, so in this, there must be a lessor, &c. * * * Fourth If the thing demised be not grantable without a deed, or the party demising be not able to grant without a deed, the lease must be by deed, and, if so, then there must be a sufficient description and setting forth of the person of the lessor and lessee and thing leased; and all necessary circumstances, as sealing and delivery, &c., required in other grants, must be observed.” On the same page, this author further says: 11 The usual words whereby a lease is made are ‘ demise, grant and to farm let,’ and whatsoever words amount to a grant may serve to make a lease.” ( Co. L'itt., 301 b.)

The object and intent of the act in question was to give to married women the use, control and right to dispose of all property, of every description, held by them at the time of the marriage, or acquired subsequently, without regard to the manner in which or the form of the instrument by which it was transferred or conveyed, provided such transfer or conveyance was not from the husband; and the act should be so construed as to give effect to such intent. Prior to the passage of the act, a married woman could take, as a gift, or by virtue of a bequest, or under a marriage settlement, and hold separate property, without the intervention of a trustee, and a court of equity would protect her in its enjoyment. It depended upon the intention of the donor as expressed in the instrument by which the bestowal was made, or upon the intention as expressed in the settlement, whether the property was to be held to her separate use. (3 Story’s Eq., % 1380, 1381,1382.) The statute has changed the law in that respect, and made all property held by a married woman at the time of her marriage, or acquired by her subsequently, hers absolutely; and has enabled her to use, control, enjoy and dispose of it, independently of her husband, and as her separate property.

The plaintiff, Mrs. Darby, therefore, provided she was capable of taking the lease in question, was entitled in her own right to the possession of the demised premises during the term. The estate granted thereby was her separate property ; and as she had the actual possession and was wrongfully ejected by the defendant, she could maintain the action to recover the possession. The action related to her separate property, and her husband was not, therefore, a necessary party ( Code, § 114) ; or, if otherwise, as she was the meritorious cause of action, and as the fact that she had a husband appeared on the face of the complaint, advantage of the non-joinder could only be taken by demurrer. ( Code, %% 144, 417, 148; Hastings v. McKinley, Selden’s Notes of Cases in Court of Appeals, October, 1853.)

But the act referred to has not removed all the disabilities of a married woman. She cannot make a contract which can be enforced against her personally, and it is claimed that she cannot take a lease for the reason that she cannot bind herself by covenant to pay the rent. Woodfall, in his Treatise on the Law of Landlord and Tenant (2d London ed., 137), says: “ A feme covert cannot be a lessee, for her free agency is so suspended during coverture that she may plead non est factum to an action on any covenant in the lease; for, evidence that she was covert, at the time of executing the léase, will prove it not to be her deed. For use and occupation of the premises, her baron will be liable.” Archbold, in his treatise upon the same subject (p. 13), says: “ All persons whatsoever, even idiots, infants and married women, may be lessees. If they labor under disability at the time of the making of the lease, they may, upon the removal of the disability, avoid such lease; but if they continue to occupy the thing demised after the removal of the disability, the lease thereby becomes good and binding upon them.” Comyií says (Comyn’s Landlord and Tenant, 49): “All persons are capable of becoming lessees of demisable property; in some cases, however, demises are liable to be avoided in respect to the persons to whom they are made. Infants may accept leases, and upon their arriving at full age may avoid them. So a feme covert may accept a lease which may be avoided by her husband, or by herself after her husband’s death, even though he had assented to it.”

In Baxter v. Smith (6 Binn., 427), it was held that a lease to a married woman was good, and that the lessor was bound thereby, if the wife performed the stipulations thereof, or if the husband did not dissent therefrom; and that his assent might be inferred from circumstances.

When a lessee, being a married woman, is in possession of demised premises, under a lease, no one but the lessor and those claiming under him can question her right of possession. No others have any interest in the question, whether payment. of the rent can be enforced or not. The lease, in such case, is not void, and is voidable only by the parties thereto or their representatives. Strangers cannot avoid it. After payment of the rent reserved, and performance, by the lessee, of all the conditions and stipulations in the lease, the lessor could not avoid it.

In this case, we have the highest evidence that the lessor has not avoided, and has no disposition to avoid, the lease in question, as he prosecutes the action for and as the next friend of the plaintiff, the lessee. In fact, he could not avoid it, while the lessee was not in default in payment of rent or in the performance of the covenants or conditions contained in the lease, and there is no evidence that she was or has been thus in default. The lessee cannot avoid the lease when in possession under it, or when prosecuting an action to regain possession after having been wrongfully ejected, and, under the provisions of the act of 1848, her husband has no right to avoid it.

I think the action was well brought in the name of the plaintiff by her next friend, without joining her husband, and that, on the trial in the City Court, the plaintiff showed a good cause of action for the recovery of the possession of the premises described in the complaint, and, consequently, that the court erred in nonsuiting her or dismissing her complaint.

If I am right in the above conclusions, it follows that the judgment of the Supreme Court and of the City Court should be reversed and a new trial granted in the latter court.

Brown, J.

It is not a sound objection to the plaintiff’s title, that the grant and demise in the lease of William D. Murphy is to a married woman. All persons, at common law, may be the grantees in a deed, because it is supposed to be for their benefit. Thus, an infant may be a purchaser in a deed, and at his full age may agree or disagree to it, at. his pleasure. So, also, an estate may be conveyed to a married woman without the sanction of her husband. The conveyance will be good to pass the estate, unless the husband avoids it. A grant operates on the estate of the grantor, and will pass such estate as the grantor has in the premises, and no other. These are familiar principles. The right of the plaintiff, who is a married woman, to enjoy the estate granted by Murphy’s lease to her, and to assert such right in a court iff Uw, depends upon the force of the act of the 11th April, 1849, to amend the act for the more effectual protection of the urcpeatv iff married women.

The third section of the act, as amended, is raoet comt-rt hensive in its. terms. A married female “may take, by inheri tance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, or any estate or interest therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried.” These terms embrace every species of property known to the law. The lease from William D. Murphy bears date the 15th day of December, 1851, is executed under seal, in the presence of and attested by a subscribing witness, and thus has all the formalities of a deed in fee. It demises the premises in question, for the term of one year and five months from the 1st day of December, 1851, at a yearly rent of forty-five dollars, payable quarterly. Had the lessee been a feme sole, no one would have entertained a doubt that an estate for years vested in the lessee. I see no reason why the like estate would not vest in a feme covert. The grant is from a stranger and not from her husband, nor is it purchased or obtained by his means. No good reason can be assigned why a married woman may not, since the statute, take an estate for years, rendering rent, from a stranger. The question of the payment of rent has nothing to do with the vesting of the estate. It is a question between her and the landlord, and if the rent remains unpaid he may reenter. The object of the statute is remedial: to remove the disability which the common law attached to coverture, and to enable a married woman to have something which she might call her own, and to do something for her own subsistence and that of her offspring. The act should have a liberal construction. “ This statute,” as Mr. Justice Mascot says, in Hurd v. Cass (9 Barb. S. C. R., 366), “undoubtedly was intended to vest the title to real estate conveyed to the wife during coverture, in her, and secure it to her sole and separate use, beyond the control of her husband and his creditors; and when the intention of the legislature is apparent, it is the duty of the courts to see that the design and object of the statute is not evaded by construction, but, on the contrary, is permitted to have full effect and operation.”

The judgment should be reversed and a new trial granted, with costs to abide the event.

All the judges concurring,

Judgment reversed and new trial ordered.  