
    Williams, respondent, v. Jane Christie, Preston and Wife, Truex and Wife, and Jennings & Gridley, appellants.
    Every written cofltract, made by an agent, in order to be binding on his principal, must purport, on its face, to be made by the principal, and must be executed in his name, and not in the name of the agent.
    It cannot be shown by parol, that the alleged agent, in signing his own name to the contract in fact signed as agent, and thus convert a contract, which, on its face, is his own, into a contract of his alleged principal, and make it enforceable as such.
    A contract by the husband of a married woman, to which she is not a party, to convejr land, of which she is seized in her right, gives no right to any relief against the wife. She can make a valid conveyance of her interest in such land to a person having notice of such a contract, and of her refusal to assent to it, or to co-operate in executing it.
    So long as the party holding such a contract has no rights under it, legal or equitable, as against her, she can make a conveyance of her interest, valid and effectual as against him. Such a conveyance confers on him no rights which he would not otherwise possess. Having none before such a conveyance, he can acquire none by reason of it.
    When a judgment is reversed, the complaint will not be dismissed as to all, though necessarily dismissed as to some of the defendants, if on the facts stated in it, and established on the trial, the plaintiff is entitled to some relief, as against a part of the defendants. As to such defendants the action will be retained, that the plaintiff may have such relief, as against them, as he may establish a right to.
    (Before Oakley, Oh. J., Doer and Bosworth, J. J.)
    June 21;
    June 24, 1854.
    Facts. — This action was tried at a special term, without a jury. ’ It was brought against Jane Christie, Stephen L. Preston, and Margaret Ann, his wife,'Levi H. Truex, and Mary Jane, his wife, to enforce the specific performance of a contract, alleged to have been made by them, for the sale and conveyance to the plaintiff, of certain real estate, of which Margaret Ann Preston, and Mary Jane Truex, were seized in fee as tenants in common and heirs-at law of their father, David Christie, deceased, subject to the dower-right of their mother, Jane Christie, and subject also, as was claimed, to the life estate, as tenants, by the courtesy .of England, of their respective husbands, Stephen L. Preston, and Levi H. Truex. Oscar S. Jennings and R. Gridley, were also made defendants, as grantees of the property, subsequent to, 'and with notice of the agreement, to convey to the plaintiffs, to the end that the deed to them might be decreed fraudulent as to the plaintiff, and be also decreed to be cancelled.
    The agreement, a specific performance cf which was sought, was as follows, viz:
    ‘ This agreement, made and entered into this 29,th day of November, 1850, between Jane Christie, widow of David Christie, Stephen L. Preston and Margaret Ann, his wife, and Levi H. Truex and Mary Jane, his wife, parties of the first part, and Philip H; Williams, party of the second part, witnesseth: That the said parties of the first part agree to sell, and the party of the second part agrees to purchase, all' those four certain lots, pieces or parcels of land, situate, lying and being in the Nineteenth ward of the city of New York, and taken together contain as follows: — Beginning at a point formed by the intersection of the easterly side of the Ninth avenue with the northerly side of Forty-first street, running thence northerly along said easterly side of the Ninth avenue ninety-eight feet and nine inches to the centre line of the block between Forty-first and Forty-second streets, thence easterly along said centre line and parallel with Forty-first street one hundred feet, thence southerly, parallel with the Ninth avenue ninety-eight feet and nine inches to the northerly side of Forty-first street, and thence westerly along said northerly side of Forty-first street one hundred feet to the point or place of beginning, for the price or consideration of five thousand dollars, as follows: — One hundred dollars being-now paid, the receipt whereof is hereby acknowledged; fifteen hundred dollars to be paid on the 1st day of January, 1851, and the balance of three thousand four hundred dollars to be secured by the bond and mortgage of the party of the second part, payable within three years, with interest payable semi-annually, when a full'covenant warrantee deed, free from incumbrance to that date, is to be given; it being hereby understood and agreed that the parties of the first part are to pay the assessment for the sewer on Ninth avenue, and for the regrading and setting curb and gutter on said avenue.
    “ In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.
    “ Jane ChRistie, [l. s.]
    “ Stephen L. Preston, [l. s.]
    “L. H. Teuex, [l. s.]
    “P. H. Williams, [l. s.]
    “ Sealed and delivered in the presence of
    “ Theodore Martine,
    “ As to S, Preston, L. Truex,)
    and P. H. Williams.” )
    The defendants, Margaret Ann Preston, and Mary Jane Truex, in their answer, insisted that the agreement, not having been executed by them, nor in their names, was inoperative as to them, and they plead, in bar, to the claim of the plaintiff, the statute entitled, “ Of fraudulent conveyances and contracts relating to land,” being Part 2d, Title 1 of Chapter 7 of the Revised Statutes.
    On the trial, the plaintiff proved the following receipt:
    “ Dolls. $100. ■ Rec’d from P. H. Williams per T. Martine one hundred dollars on acH of sale of property to him ly Jane Christie, S. L. Preston and myself L. H. Truex.
    “New York, January 18th, 1851.”
    The plaintiff also gave evidence tending to show, that when Truex was paid this $100, he represented that a conveyance would be ready for the plaintiff in ten or twelve days, that it was necessary to sell other property to pay the encumbrances on the property in question, and that he solicited and received the $100 on account of the contract.
    The complaint alleged, but the answers denied that Truex applied for the payment of this $100 on account of the purchase money, and requested an extension of time to give a deed inexe-cution of the contract, and the answers particularly denied that the wife of Truex or Christie knew of, assented to, or approved of, any such application or.payment.
    It appeared that after the time named in the contract for delivering a deed to the plaintiff — a deed to the plaintiff of the .premises, duly executed and acknowledged by all the parties to the agreement, and also by the wife of Truex and the wife of Christie, was tendered to the plaintiff on the 20th of January, 1851, at 9,o’clock, A. M., on the condition of his then paying $1,500, and executing such a bond and mortgage, as was required of him by the contract, but that it was executed and acknowledged for. the sole purpose of making such a conditional tender, and to be destroyed if such conditional tender was not accepted when offered and its terms then complied with. The deed not having been accepted on the terms offered, it was destroyed, and the premises were conveyed the same-day to Jennings and Gridley for the contract price of $5,000. The mortgage on the premises was satisfied out of the purchase money when the deed was delivered to them, and the taxes and assessments imposed on the property, subsequent to the 20th of January, 1851, were paid by Jennings and Gridley. David Christie died about twenty years prior to the trial of the action. Truex and wife were married on the 3d of July, 1847, and Preston and wife about the 1st of Fo-vember, 1848. The Judge before whom the action was tried, decided that the contract ought to have been specifically performed. That Jennings and Gridley took their deed with notice of the plaintiff’s rights, and under it held the premises, as trustees of the plaintiff. That they should pay all liens and incumbrances on the premises at the time of the decision, and on the plaintiff’s tendering them the sum of $1,400, and his bond conditioned to pay them $3,400 within three years from the 1st of January, 1851, with interest semi-annually, to be computed from the date of the judgment, and his mortgage acknowledged so as to be recorded, upon the premises in question, to secure the payment of the bond, Jennings and Gridley should execute to the plaintiff a deed of the premises, with covenants against their own acts, and to be duly acknowledged, and to be executed by the wife of each, if he had any. He also adjudged costs to the plaintiff, amounting to $240.98, against all the defendants.
    
      The defendants appealed from the judgment.
    
      John Anthon, Esq., for the appellants,
    made and argued the following points:
    I. The title to the land in controversy on the 29th November, 1850, (the date of the agreement to convey,) was vested in Margaret Ann, the wife of defendant Preston, and Mary Jane, the wife of defendant Truex, as tenants in common. Independent of the statutes of 1848,1849, no agreement made by them and their husbands, however formal, could have been enforced against any of them. Such agreement prior to those statutes would have been merely void. - (Opinion, Hoffman J., in this case; 2 Kent, 168; Sug. Vend. 230; Emery v. Ware, 8 Yes., Jr., 516; Davis v. Jones, 1 New. Rep. 267, Sir James Mansfield, ad Jinem.) ,
    H. Mrs. Truex having been married before the passage of said statutes, they do not in any wise affect her then subsisting marriage contract, and so far as concerns her undivided one-half of the premises in controversy, she is fully under the protection of the Common Law, as stated in the preceding point, and therefore in no event can the plaintiff acquire title under said agreement to her one-half. (Same authorities.)
    EU. The Judge, at special term, clearly erred in requiring her said one-half part of said premises to be conveyed to the plaintiff.
    IY. The agreement of 29th November, 1850," is under seal, and purports to be an agreement by the husbands and wives to convey to plaintiff the lands of the wives. ,
    If the wives can, by the operation of said statutes, or otherwise, be bound by such an agreement, it must satisfy the .statute of frauds, and for this purpose must be signed by the wives, or by their agent lawfully authorized, under seal, and must be accompanied by their acknowledgment, (2 R. S,, 194, § -.6., 9:; Blood v. Goodrich, 9 Wend; 68; id. 13 Wend. 525; Albany F. 1. .0. v. Bay, 4 Com. 9.)
    Y. This agreement was not signed by the wives, neither in person, nor by their agent in any wise authorized, nor acknowi-edged by them, and is consequently under the statute a void instrument, with reference to both.
    YI. These married women being thus free-to convey, at their will, and to whom they pleased, and all the world, consequently, being equally free to contract with them, their deed to Gfridley and Jennings, duly executed and acknowledged according to law, was valid and operative, and could not be affected by a knowledge of the physical existence of an outstanding void contract.
    VIL A contract void under the statute of frauds does not admit of ratification.- It leaves the parties free to make a new and valid contract, observing the requirement of the statute; and this when done with all formality is a new contract, and not a setting up of the void one, and derives no strength from it.
    VIII. The deed of 20th January, -1851, was in effect such new contract proposed in fieri. It could have no legal operation until delivered and accepted, and plaintiff had then no right, and consequently was under no legal obligation to receive it, and the owners of the property had a right to attach to their offer to deliver it as a new contract any conditions they pleased. The conditions having been rejected, the deed never had any legal effect.
    IX. The judge at special term erred in ruling that this undelivered deed was a ratification of the agreement of 29th November, 1850.
    1. Because without delivery it had no legal efficacy.
    2. Because the void contract could not be ratified.
    X. In every case of ratification the intent is the controlling ingredient, and here it was fully in proof that the deed was made and tendered under the advice of counsel to destroy, not to give, vitality to the agreement of 29th November, 1850.
    XI. Gfridley and Jennings took the property upon the same terms and at the same price mentioned in the void agreement with plaintiff, thus shutting out all idea of fraud.
    XII. The Judge at special term erred in giving effect to tlie void agreement of 29th November, 1850, against the feme covert owners by declaring their grantees in the deed of January 20, 1851, trustees for parties who under said void agreement had no rights.
    XIII. If the void agreement was at all susceptible of any kind of legal resuscitation, the decree ought to have been according to the prayer by directing a deed to be made by all the parties according to the terms of that agreement, and directing the deed to Gridley and Jennings to be given up to be cancelled.
    
      XIY. By the terms of the contract, 29th November, 1850, the plaintiff is to pay $1,500, on the 1st January, 1851, and to give a mortgage for $3,400, with interest semi-annually from same date. The judgment as entered casts a heavy loss on these married women by directing the cash payment to be made without interest at the date of the judgment, and the mortgage for the balance to bear the same date. The following statement shows the loss.
    _ Judgment, p. 23, fo. 78.
    Interest on $3,400 from 20th January, 1851, to 17th
    May, 1854,.$791 12
    Interest on $1,400 same period,. 325 75
    Interest on $200,. 46 54
    $1,163' 41
    XV. The Judge, in rendering this judgment, made no distinction between the married women, whose rights are manifestly different. If the contract can be sustained by any refinement, it can only be against the one married since 1849.
    XVI. The complaint ought to have been dismissed with costs as to all the defendants, the contract sought to be enforced being utterly void.
    
      D. D. Field, Esq.-, for respondent,
    made and argued the following points:
    
    I. The agreement between the plaintiff and the defendants CHRISTIE, Preston, and Truex, dated November 29th, 1850, was a valid agreement, and bound the said defendants to the performance thereof.
    II. The defendants entirely failed to perform the said agreement ; their pretended tender was unreasonable and insufficient, and if the fee of the land were now vested in them, they would be compelled to convey it to the plaintiff.
    III. The objection that the wives of Preston and Truex could' not be required to convey, is not a valid one since the act of 1848.
    IV. If it were valid, the objection has been removed by the execution and acknowledgment of a deed by the husbands and wives, and the tender of it to the plaintiff.
    
      Y. The objection moreover was purely personal witb the wives, and the defendants Jennings and Gridley cannot urge it; and having taken their deed with knowledge of the plaintiff’s rights, they were rightfully treated as trustees for him. 2 Story’s Equity, 1390-1392. 13 Conn. R. 478.
   By the Oouet.

Bosworth J.

The only written agreement for the sale and conveyance to the plaintiff of the real estate in. question, that has been proved, or is alleged to have been signed, was not signed, either by the wife of Preston, or the wife of Trues. Each of these two defendants pleads the statute of frauds, in bar of all relief sought against her. The signature of the husband of Mrs. Preston, or of the husband of Mrs. Truex, does not purport to have been made in behalf of, or as agent of his wife. There is nothing on the face of the agreement which intimates that either was agent, or that he assumed to act as agent for his wife in signing it.

We consider the doctrine well settled, that every written contract made by an agent, in order to be binding upon his principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the name of his agent. (Evans v. Wells, 22 Wend. 324.)

It cannot be shown by parol, that the alleged agent, in signing his own name to the contract, in fact signed as agent and thus convert a contract, which, on its face is his own, into a contract of his alleged principal, and make it enforceable as such. This would be altering the plain meaning and clear legal import of written contracts, by unwritten evidence, which is inadmissible.

Irrespective of the consequences of executing, acknowledging, and tendering the deedt o the plaintiff, there is clearly no right shown to any relief against the wives of Preston and Truex. In this view we understand the Judge, whose judgment is appealed from, to have concurred. He says, “had they utterly repudiated the contract, no power could have compelled them to perform it.”

The deed was executed to be specially tendered. It was specially tendered. „ It was never unconditionally delivered by the married women to any one. It never passed from the hands of their agent to make and who made the tender. Hot being bound by tbe contract, it was competent for them to tender a conveyance upon any terms, and encumbered by any conditions that tbey might be pleased to annex to it. Such a tender, unaccepted, did not in law or equity divest or impair their title, or power of subsequent disposition. An unaccepted tender conferred no new rights upon the plaintiff.

. But it is urged, that the wives having actually conveyed to Jennings and Gridley, the latter cannot protect themselves in their purchase, by the objection that their vendors were under no obligation, legal or equitable, to convey to the plaintiff.

It is certainly an extraordinary proposition, that a woman, whether married or unmarried, who is under no obligation to convey her lands to the plaintiff, .cannot make a sale and conveyance to a third person, valid, both at law and in equity, against the plaintiff. If the plaintiff has no claims under the contract of the 29th of November, 1850, against the wives of Preston and Truex, if their interest and estate in the lands are in no way affected by it, it is absurd to say, that no subsequent grantee of theirs can hold the lands against the plaintiff. So long as it is conceded, that the plaintiff had no claims legal or equitable to a conveyance from the wives of Preston and Truex, at the time they conveyed to Jennings and Gridley, it must also be conceded, that such conveyance did not create any equities or rights which would not have existed had that conveyance not been made. ■

The judgment appealed from should be reversed, and the complaint be dismissed as to the wives of Preston and Truex, and the defendants Jennings and Gridley, but without costs to either party.. A new trial should be ordered as to the other defendants, to enable the plaintiff to recover such damages as he may show himself entitled to. Prom some, or all of them, he is entitled to recover the-money paid on account of the contract price. Whether he is entitled to any thing in addition, it would be premature to attemptt to decide now.  