
    Grorge W. Dean, Resp’t, v. The Metropolitan Elevated Railway Co., App’lt.
    
      (Court of Appeals,
    
    
      Filed March 11, 1890.)
    
    1. Trespass—Title—Estoppel.
    On the trial of an action for damages sustained hy the maintenance of a railroad structure in front of his premises, plaintiff gave in evidence a conveyance of the property and an assignment of the cause of action to him, from his wife, executed and delivered after the suit was commenced, and in fact during the trial. The court held that these papers, in connection with a deed to plaintiff dated 1860 by other parties, and the fact that plaintiff had always received the rents and profits of the premises, estopped the wife from ever after making any claim to the property or the cause of action, and established title in plaintiff in spite of the fact that plaintiff had deeded the premises to his wife in 1879. Reid, no error.
    2. Same—Husband and wife—Deed.
    As this was previous to the statute of 1887, the deed of the husband to his wife did not operate to divest his title unless the consideration was such as to enable a court of equity to uphold it, but the party setting up or claiming under the deed must establish the consideration.
    3. Same.
    But defendant also gave in evidence a deed from plaintiff and wife to Roosevelt, then plaintiff produced a deed from Roosevelt and wife to plaintiff’s wife dated 1880, and another from the latter to plaintiff himself, which conveyances plaintiff testified were to secure a loan of $2,300 by Roosevelt Held, that if this testimony was conclusive it proved that the deed to Roosevelt was a mortgage, so that the deed of Mrs. Dean to her husband was merely the assignment of a mortgage which she had a right to give.
    4. Same—Evidence—Interested witness.
    The court refused to charge as requested by defendant’s counsel that the jury are not bound to believe the plaintiff’s statement that his deed was a mortgage because he is an interested witness, and that if the jury find such conveyances were intended to pass the title to Mrs. Dean, then the verdict must be for (lie defendant. Ibid, error.
    
      Appeal from judgment of the general term of the New York ■common pleas, affirming judgment in favor of' plaintiff, entered on the verdict of a jury.
    
      Brcdnerd Tolies and B. S. Rapallo, for app’lt; Chas. B. Whitehead, for resp’t.
   O’Brien, J.

The plaintiff recovered a verdict of $2,205 as damages against the defendant by reason of the unlawful construction and maintenance of its railroad structure in front of his premises in West Third street in the city of New York. The defendant admits that the damages awaided are not excessive, and that there is no reason for disturbing the verdict providing .the plaintiff has shown such title to and possession of the premises as enables him to bring and maintain the action. It is contended by the defendant that, upon the proofs given at the trial, the plaintiff had neither title nor possession, and therefore the recovery cannot be upheld. The plaintiff gave in evidence a conveyance of the property and an assignment of the cause of action to him from his wife executed and delivered after this suit was commenced and in fact during the trial. These instruments were properly objected to by the counsel for the defendant, but were admitted by the trial court and the defendant excepted. The court held as matter of law that these papers in connection with other proofs of title, which will be referred to hereafter, estopped the wife from ever after making any claim to the property or the cause of action and established title in the plaintiff. It is quite clear that this proof was not admissible. The action was at law to recover for an injury in the nature of a trespass to plaintiff’s real estate, and his rights could be determined only in .accordance with the situation existing when the action was commenced. He must stand or fall with such title and right to recover as he then had and no other. Wisner v. Ocumpaugh, 71 N. Y., 113 ; Prouty v. Lake Shore, etc., Co., 85 id., 272 ; Hollingsworth v. Flint, 101 U. S., 591. Unless there was other conclusive evidence in the case to establish the plaintiff’s title the judgment cannot be upheld. The plaintiff produced and put in evidence a deed to him from Isaac 0. Deleplain and wife, dated September •6, 1860, and it was shown that from the delivery to him of this deed to the commencement of the action he has received the .rents and profits of the premises.

If the title conveyed to the plaintiff by the deed has not been divested by the conveyances subsequently made, and which will be presently referred to, then his right to maintain this action would be clear enough, and the deed and assignment from his wife executed at the trial and above referred to might be regarded as immaterial. But in order to show title out of the plaintiff, the defendants gave in evidence a deed from the plaintiff to his wife, •dated April 28, 1879. Whether this instrument operated to divest the title of the plaintiff under the Deleplain deed of 1860 depends upon the effect to be given to a deed from husband to wife. The disability of husband and wife to convey lands to each ■other was wholly removed by the passage of chapter 537 of the Laws of 1887, but the question here must be determined with respect to the condition of the law upon this subject, as it existed prior to the passage of that statute. It is not necessary now to cite authority in sujjport of the ¡Disposition that a deed of land from the husband to the wife, or from the wife to the husband was void at common law. By the enactment of the statute just referred to, the legislature recognized that rule as then existing. Fourteen years after the passage of the act of 1848, this court held that the common law disability still continued, notwithstanding the legislation on behalf of married women, White v. Wager, 25 N. Y., 328; and three years later the rule was again reiterated. Winans v. Peebles, 32 N. Y., 423. More recently it was held that under a conveyance of land to a husband and wife jointly, they take not as tenants in common, or as joint tenants, but as tenants by the entirety1, and upon the death of either the survivor takes the whole estate. Bertles v. Punan, 92 N. Y., 152. This result was reached by the application of the common law doctrine of the unity of husband and wife, and that conveyances of this character were not affected by the legislation in this state in regard to the property of married women, and the cases of White v. Wager and Winans v. Peebles, supra,were both cited approvingly in support of the rule that the common law disability of husband and wife, growing out of their unity of person, to convey to each other still existed. This court has quite recently held that the rule of the common law which made the husband liable for the torts of his wife has not yet been abrogated. Fitzgerald v. Quann, 109 N. Y., 441; 16 N. Y. State Rep., 395; Mangam v. Peck, 111 N. Y., 401; 19 N. Y. State Rep., 78.

The decisions in all these cases proceed upon the ground that-statutes changing the common law are to be strictly construed, and the latter will be held to be no further abrogated than the clear import of the language used in the statutes absolutely requires, and hence that the common law disability incident to the relation of husband and wife still exists, except in so far as they have been swept away by express enactments. As there was no statute prior to the year 1887 changing the common law with respect to deeds of land between husband and wife, it follows that the deed of the plaintiff to his wife did not operate to divest his title, unless the consideration was such as to enable a court of equity to uphold it. It is true that conveyances of real estate between husband and wife, though void at law, are sustained in equity when founded upon a valuable or meritorious consideration. Shepard v. Shepard, 7 Johns. Ch., 57; Hunt v. Johnson, 44 N. Y., 27; Tallinger v. Mandeville, 113 id., 432; 22 N. Y. State Rep., 708. This rule, however, requires the party setting up or claiming under the deed to show such fact and to establish a consideration requiring a court of equity to sustain it. In the cases where equity interferes to sustain a deed between husband and wife, an equitable consideration must be shown either upon the face of the conveyance itself or by extraneous-proof. The defendant did not, in this case, erect any obstacle to the plaintiff’s right of recovery by producing and putting in evidence a deed from the plaintiff to his wife, expressing no ■equitable consideration. To accomplish the defendant’s purpose it was incumbent upon it to go further and show that the deed was, in fact, given for such purpose and upon such consideration as would require a court of equity to sustain it .as operative to divest the husband of title. The plaintiff had prima facie shown title in himself through the Deleplain deed of 1860, and his receipt of the rents and profits from that time to the commencement of the action, and it then rested with the defendant to show that the deed to the wife was of such a character, and based upon such a consideration, as to change the title. The defendant cannot now insist that the deed is good in equity because it failed to prove any fact upon which such a claim can be predicated. This was the situation when the defense closed, but both parties gave further evidence bearing upon the title which greatly embarrasses the question now.

The defendant gave in evidence a deed from the plaintiff and wife to James A. Eoosevelt dated June 9, 1880, and recorded immediately thereafter and then the plaintiff produced another from Eoosevelt and wife to Estelle Dean, the wife of plaintiff, dated September 28, 1880, and still another from his wile Estelle directly to himself dated June 22, 1881, all of which conveyances were duly acknowledged and recorded shortly after the respective dates thereof. The plaintiff then testified that the conveyance by himself and wife to Eoosevelt was to secure-the ¡oayment to the grantee of $2,300 which he paid in full in about three months thereafter and that then Eoosevelt and wife conveyed the premises, back to plaintiff’s wife. This testimony was not contradicted and if it was conclusive it proved that the deed to Eoosevelt was a mortgage and that the money secured thereby having been paid the plaintiff’s title was again reinstated, that Eoosevelt’s deed to Mrs. Dean was nothing but the assignment of a paid up mortgage and that lier title was precisely that which Eoosevelt had before the conveyance to her by him and nothing more and therefore her deed to her husband of June 22, 1881, is not embarrassed by the common law disability of a wife to convey land to her husband because her conveyance was operative simply to discharge Eoosevelt’s mortgage lien of record. It has been repeatedly held that a husband or wife may assign or transfer personal property directly to each other. Armitage v. Mace, 96 N. Y., 538; Whiton v. Snyder, 88 id., 299; Rawson v. Penn. R. R. Co., 48 id., 216; Phillips v. Wooster, 36 id, 412.

, Hence the right of the wife in this case to assign to her husband, through the form of a conveyance, a paid-up mortgage, which came to her hands from Eoosevelt, cannot be doubted. After the extinguishment of Eoosevelt’s lien by payment, the subsequent conveyances by him to the wife, and by her to plaintiff, could give no other right than to enable the grantee to discharge the mortgage of record, and place the title in the same condition that it was in when the lien was given. This result, however, must depend upon the testimony of the plaintiff, who alone testified that the conveyance to Eoosevelt, absolute upon its face, was in. fact given as security for a debt which he paid. Hor is there any other fact or circumstance in the case to corroborate his testimony. He was an interested party, and here, at this point, the plaintiff’s case encounters a difficulty that we think is fatal to this judgment.

The defendant’s counsel requested the court to charge the jury as follows:

“ That the jury are not bound to believe the plaintiff’s statement that the deed given by his wife and himself to Mr. Roosevelt was a mortgage, and not a conveyance, because he is an interested witness; the papers on their face purport to be deeds, and not mortgages, and he calls no other party to the transaction to corroborate his statements.” And he also requested the court to charge “ That if the jury find that the conveyance of Dean and wife to Roosevelt, and the conveyance of Roosevelt to Mrs. Dean in 1880, were intended to pass the title of this property to Mrs. Dean, as appears on the face of the deeds, then the verdict in this •case must be for the defendant” The court refused to charge either of these propositions, and the defendant’s counsel excepted. It was possible for the jury to find, in accordance with the view suggested by the requests, that it was the intent of all the parties to these conveyances to vest the title in Mrs. Dean; and, besides, the testimony of the plaintiff that the deed to Roosevelt was in fact a mortgage, was not conclusive, for the witness was an interested party. The testimony, by means of which it was sought to convert a deed, absolute in its terms, into a mortgage, should have been submitted to the jury, and the court should have charged as requested. Munoz v. Wilson, 111 N. Y., 295; 19 N. Y. State Rep., 372; Sipple v. State, 99 N. Y., 287; Wohlfahrt v. Beckert, 92 id., 490; Gildersleeve v. Landon, 73 id., 609; Kavanagh v. Wilson, 70 id., 177; Elwood v. W. U. Tel. Co., 45 id., 553.

It is further contended on the part of the defendant that this action is in its nature to recover damages for an injury to possession, and that even if the plaintiff had the legal title and was in receipt of the rents, yet inasmuch as he was not in the actual occupancy of the premises he cannot maintain the action. A motion to dismiss the complaint upon the ground that the plaintiff had not made out a cause of action is entirely too general to raise such a question, and that is the only way it was attempted to be raised , in the court below. Moreover, there is no proof in the case that at the time of the commencement of this action or during the period for which damages were claimed there was any one in possession who had any estate or term under the plaintiff sufficient, under any circumstances, to enable him to maintain an action of this character.

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

All concur.  