
    ANDREW COAKLEY, Plaintiff, v. JAMES F. CHAMBERLAIN, Executor, &c., Defendant.
    An action for damages for the breach of a covenant of quiet enjoyment, contained in a lease executed by a person having a life-estate in the premises, which breach was occasioned by the death of the life-tenant, will not lie against the executor of such life-tenant and the remaindermen jointly, nor against the remaindermen in any form, and the mere fact that the remaindermen collected the rent reserved by the lease from the death of the life-tenant up to the time of the final partition of the premises, in an action instituted for that purpose, cannot be construed into an adoption and ratification oi such covenant on their part.
    An unexpired lease executed by a person having only a life-estate in the demised premises becomes void and inoperative upon the death of the life-tenant as against the remaindermen, and from that time constitutes no further lien or incumbrance upon the premises.
    No tenure and no relation exist between remaindermen and the tenant of the life-tenant.
    The acts of 1848 and 1849 did not confer any greater authority upon married women, to make contracts generally, than previously existed, and did not remove the legal incapacity of a married woman to enter into a personal obligation, nor did those acts authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, or which was not contracted for her own benefit or the benefit of her separate estate.
    The reported cases arising under these acts reviewed, and the case of Kolls v. Do Leyer, 41 Barb., 211, explained.
    Where a married woman having a life-estate in certain premises executed, prior to the year 1860, a ten-years lease of such premises, with a covenant contained therein that on payment of the rent thereby reserved the lessee may quietly have and enjoy the said premises for the full term, and thereupon died before the expiration of the term, and the lessee was dispossessed by the remaindermen—Held, that no action for damages occasioned'by the breach of such covenant can be maintained by the lessee against the executor of such married woman.
    Before Barbour, C.J., Monell and Freedman, JJ.
    
      [Decided December 4, 1869.]
    One William Burch was, at the time of his death, the owner in fee of premises No. 326 Eighth avenue, in the city of New York, and, by his last will, gave the use of said premises to his wife, Mary Ann Burch, during her natural life, and the fee to his children. In 1856 the widow of William Burch became the wife of Paul Burdock, and they lived together as husband and wife until her death-in 1864.
    In 1857, while the wife of Paul Burdock, she leased to the plaintiff the said premises for the term of eleven years, by lease, duly executed and recorded, at a yearly rent of $750; and, in that instrument, covenanted for herself only that the plaintiff, on paying the said yearly rent, &c., should peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid.
    
    In 1864, before the term expired, she died, and the children of William Burch commenced an action in the Supreme Court for the partition of the premises, mating the plaintiff a party; and, on the 3d day of March, 1865, judgment was entered in said action, adjudging that William Burch died seized of the premises; that Mary Ann Burdock had -only a life estate therein; that upon her decease plaintiff’s lease became void and inoperative, and constituted no further lien or incumbrance on the premises. Under this judgment the premises were sold, the plaintiff dispossessed, and the proceeds distributed amongst the heirs of William Burch, deceased. After Mrs. Burdock’s death the said heirs received the rent for the premises from the time of her death up to June 1, 1865.
    The action is based upon the breach of Mrs. Burdock’s covenant of quiet enjoyment, and is brought to recover, as damages, the value of the unexpired term in said lease. The defendant (Chamberlain) is sued as the executor of the last will and testament of Mary Ann Burdock, deceased, and the other defendants as heirs, who received the proceeds of the sale in partition and the rent of the premises from the time of Mrs. Burdock’s death up to June 1, 1865.
    The action was tried before Mr. Justice Jones and a jury. Wlien the plaintiff rested, the evidence substantially disclosed the foregoing state of facts; and the counsel for the heirs-at-law thereupon moved to dismiss the complaint against them. The court granted the motion, and plaintiff excepted.
    
      Counsel on behalf of the only remaining defendant, James F. Chamberlain, sole surviving executor of Mary Ann Burdock, deceased, introduced some further evidence establishing the marriage between Pa„ul Burdock and Mrs. Burch; and that thereupon they lived together as husband and wife until she died, and also introduced and yead in evidence the will of William Burch, deceased. • ,
    At the close of the testimony, the jury, under the 'direction of the court, found a verdict for the defendant Chamberlain, to which direction and finding plaintiff excepted. The court directed the exceptions to be heard at the General Term in the first instance, and that judgment in the mean time be stayed.
    
      Mr. S. B. Noble for plaintiff.
    The Court erred in dismissing the complaint against the defendants, the heirs-at-law. At all events those defendants are liable to respond to the plaintiff' in damages for one year, $900, from May 1, I860, inasmuch as the plaintiff continued in the possession of the premises on an implied agreement, the duration of which, there being nothing expressed to the contrary, was until May 1, 1866, in the city of New York (1 R. S., 744).
    The covenant on the part of the lessor, Mary Ann Burdock, for the quiet enjoyment of these premises during the demise, can be enforced against her executor, James F. Chamberlain. Under the acts of 1848 and 1849, a wife may execute a valid conveyance of her separate property, the covenants in which will bind her representatives (Winans v. Peebles, 31 Barb., 371; Goelet v. Gori, 31 Barb., 314).
    A married woman is liable for a breach of the covenants in a deed which she has given; the covenants induce the hiring, enlarge the price, and thus benefit her estate (Kolls v. De Leyer, 41 Barb., 208 ; 26 How. Pr. R., 408).
    The statutes of 1848 and 1849 charge the separate estate of the wife for debts contracted for the benefit of such estate in the manner and to the extent previously authorized by the rules of equity in respect to separate estates (Ballin, &c., v. Dillaye, 37 N. Y., 35 ; Yale v. Dederer, 22 N. Y., 450).
    The covenant in the case under consideration is declared in the instrument itself, and is for the benefit of the separate estate. It inheres to the very subject-matter, and is the essence of the thing. The covenant for quiet enjoyment in the absence of any restriction in the statute of 1848 and 1849 must be enforced in the same manner as the covenants of femes soles (per Brown, Justice, Rolls v. De Leyer, 41 Barb., 211).
    
      Mr. R. H. Bowne for defendants.
    The complaint was rightly dismissed as to the heirs-at-law. Ho proceedings were taken to show that the personal estate of the decedent was not sufficient to pay her debts, nor had any proceedings been taken against her personal representatives (3 R. S., 5th edition, p. 750, see. 33).
    And it was shown that the suit was brought against the heirs within three years after the death of the testatrix—she died in 1864, and the suit was commenced in 1865 (3 R. S., 5th edition, p. 197, sec. 197).
    The verdict was right as to the remaining defendant, and the judgment will not be disturbed. Mrs. Burdock was a married woman under coverture at the time she made the lease. The acts for the protection of the rights of married women conferred no powers upon them to enter into personal covenants (Fisher v. Marvin, 47 Barb., 156).
    These acts do not charge the separate estate of a married woman with any debt she may create, unless charged upon it (Yale v. Dederer, 18 N. Y., p. 265 ; same, 22 N. Y., p. 450).
    The covenant in the lease on which Mrs. Burdock’s estate is sought to be made liable was made in 1857, and is to be construed as the law then stood. The act of 1862 has no application. The covenant was made in 1857. The act has no reference to such an estate (a mere use for life) as Mrs. Burdock had in the premises.
   By the Court:

Freedman, J.

The defendants, Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, George Frederick Burch, and Matilda Augusta Burch, were not, in respect to the premises in question, the heirs of Mrs. Burdock, but of William Burch. Therefore the statute, by which the heirs and devisees of every person who has made any covenant or agreement are held answerable, upon such covenant or agreement, to the extent of the lands descended or devised to them, does not apply to them, and the mere fact that they collected rent up to the time of final partition cannot be construed into an adoption and ratification by them of the covenant for quiet enjoyment contained in plaintiff’s lease. They were remaindermen, and between them and the plaintiff, as tenant of the life-tenant, no tenure and no relation existed. When the partition of the premises took place, the rights of all parties, including the plaintiff, were judicially determined; the judgment provided for a partition of the premises between such of the parties as had any rights therein, and according to such rights, but at the same time adjudged that the plaintiff had no right or interest whatever, that his lease became void and inoperative upon the decease of the tenant for life, and from that time constituted no further lien or incumbrance upon the premises. This judgment must be deemed a complete and final determination of the rights of the plaintiff as against the remaindermen.

Nor can this action be maintained against the heirs, against whom a dismissal of the complaint took place, upon the ground of the receipt of assets, as next of kin, under 2 Rev. Stat., 451, sec. 23. Whatever assets may be deemed to have been received by them belonged to the estate of William Burch, deceased, and not to the estate of Mary Ann Burdock. There was no evidence to show that any assets belonging to her estate were ever paid or distributed to these persons, as next of kin or legatees, by her executor, so as to entitle the plaintiff, as a creditor, to institute an action against them.

Again, the same defendants could not be proceeded against upon the theory that they were the heirs of Mrs. Burdock, until after the expiration of three years from the time of the granting of letters testamentary to her executor, for the statute expressly prohibits it (3 R. S., 5th ed., p. 197, sec. 64); and even then they could be held liable only for a debt of the testatrix, upon proof either that the deceased left no personal assets within this State to be administered, or that the personal assets of the deceased were not sufficient to pay and discharge the same or that, after due proceedings before the surrogate and at law, the plaintiff as t creditor has been unable to collect. such debt, or some part thereof, from the personal representatives of the deceased, or from her next of kin, or legatees (2 Rev. Stat., 452, sec. 33, as amended by laws of 1859, p. 293); and in such case the heirs could not be joined as defendants in the action with the executor (11 Barb., 271; 3 Comst., 261). In any aspect, of the case the complaint was properly dismissed against the heirs.

Whether the verdict, as directed, was right as to the remaining defendant, depends upon the question whether Mrs. Burdock, as a married woman, had the legal capacity to enter into the covenant which forms the foundation for this action, at the time and in the manner she did. The covenant is a personal one, which a married woman could not make at common law; and as it was made in 1857, the question will have to be determined under the acts of 1848 and 1849, passed for the more effectual protection of the property of married women. These acts enable a married woman to hold her real and personal property, and the rents, issues, and profits thereof, as her sole and separate property, as if she were a single female, and also to take 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, and the rents, issues, and profits thereof, in the same manner, and with the like effect, as if she were unmarried, &c. And it has been held that under said acts a married woman may acqxiire title to real and personal property from any person other than her husband, in almost any manner; that she may do so by buying the same for cash or upon her credit; that she may purchase a stock in trade, a business and the good-will belonging thereto, for cash or upon her credit; that in all these cases, if done bona fide, and not for the purpose of covering up her husband’s property, and if the vendor will take the risk of payment, the transfer and her title is perfect, and that no interest in any such property passes to her husband, whether she had antecedently any separate estate or not; that, after having thus obtained the property, she may manage it either personally or by the agency of her husband or any other person, and hold the profits and increase to her separate use (Sherman v. Elder, 24 N. Y., 381; Knapp v. Smith, 27 N. Y., 277; James v. Taylor, 43 Barb., 530; Buckley v. Wells, 33 N. Y., 518, overruling S. C.,. 42 Barb., 569) ; and may recover 'for work, labor, and services done and performed and materials furnished by her in course of such business, and since 1851 may sue alone under sec. 114 of the Code for her separate property, without joining her husband with her (Darby v. Callahan, 16 N. Y., 71).

But on the other hand it has been settled that, under the acts referred to, a married woman cannot contract with or convey to her husband (White v. Wager, 25 N. Y., 328 ; Winans v. Peebles, 32 N. Y., 423 ; Savage v. O’Neil, 42 Barb., 374); that she has no power to make contracts generally, which are binding upon her personally according to the general rules of law (Yale v. Dederer, 18 N. Y., 265 ; Draper v. Stouvenel, 35 N. Y., 507); although a court of equity may enforce payment, out of her separate estate, of a debt contracted by her for her own benefit Aim on the credit of her separate estate (Ledelicy v. Powers, 39 Barb., 555).

When the case of Yale v. Dederer came before the Court of Appeals for the second time (22 N. Y., 450), Judge Selden, in delivering the opinion of the court, held that, in order to create a charge upon the separate estate of a married woman, her intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself, and that accordingly, where a married woman signed a promissory note as mere surety for her husband, though it was her intention to charge her separate estate, such intention did not take effect. The learned judge showed that the foundation of the power of a feme covert to charge her separate estate rested solely upon her incidental power to dispose of that estate; that, therefore, no debt can be a charge which is not connected by agreement, either express or implied, with the estate; that, if contracted for the direct, benefit of the estate itself, it would of course become a lien, upon a well-founded presumption that the parties so intended, and in analogy to the doctrine of equitable mortgages for purchase-money; but that no other kind of debt.can be thus charged wfithout some affirmative act of the wife evincing that intention. And in his concluding remarks Judge Selden points out that the -legislature did not, even by the passage of the act of 1860, remove the common-law disability of married women to bind themselves by their contracts at large; that, in order to be obligatory upon them or their estates under that act, their contracts must relate entirely either to their separate property, or to the particular trade or business in winch they are engaged.

The principles decided in the case of Yale v. Dederer, supra, have been reaffirmed by the Court of Appeals in White v. McNett, 33 N. Y., 371; compare also Brown v. Hermann, 14 Abb., 394; White v. Story, 43 Barb., 124; Manchester v. Sahler, 47 Barb., 155.

- Thus, it seems to be settled beyond question that the acts of 1848 and 1849 did not confer any greater authority upon femes coverts to enter into contracts generally than previously existed, and did not remove their legal incapacity to contract debts ; also that those acts did not authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, and which is not for her own benefit or the benefit of her estate. The authorities relied upon by the plaintiff in this action do not cast a doubt upon the correctness of these propositions. The decision in Winans v. Peebles, 31 Barb., 371, has been reversed by the Court of Appeals, 32 N. Y., 423. Goelet v. Gori, 31 Barb., 314, is an authority against the plaintiff. In Ballin v. Dillaye, 37 N. Y., 35, the separate estate of a married woman, as a whole, was held chargeable in equity with the payment of a deficiency arising upon a bond and mortgage given by her, for the reason that she had thereby derived, in point of fact, not only a benefit in respect to the premises described in the mortgage, but an additional substantial benefit for her entire separate estate, namely, a release of thirty-two other lots, &c.

And even the decision of the Supreme Court at General Term, in the case of Kolls v. De Leyer, 41 Barb., 211, although frequently misunderstood, will, on a careful examination, be found to be in entire harmony with the propositions hereinbefore laid down as conclusively settled. The following facts appeared by the complaint in the last-named case: The defendant, as a married woman and possessed of a separate estate in lands in her own right, in 1858 conveyed out of the same a lot of ground to the plaintiff by the usual deed of conveyance, with covenants of seizin, and the same were free from incumbrances of every description. Her husband united in the deed so far as to convey his interest, if any he had, but he did not join in the covenants of warranty. At the time of making this conveyance the lot was, however, subject to the incumbrance of certain unpaid taxes, which were a lien thereon, and which the plaintiff subsequently had to pay. The action was brought to recover the amount so paid as being a charge on the wifds remaining separate estate. It consequently was a suit in equity. The defendant demurred, and the question raised by the demurrer was whether the complaint stated facts sufficient-upon which the separate estate of the defendant could be held liable in equity. The court held that it did. Therefore, however broad the language may be which the learned justice who delivered the opinion of the court on that occasion used, the correctness of the decision itself cannot be questioned.

The case at bar is an ordinary action at law. The covenant relied upon did not create a debt at the time, but only a contingent liability, which cannot be charged against Mrs. Burdock’s estate without express words to that effect; even if it had been so charged, the liability would not attach except upon proof that it was for the benefit of Mrs. Burdock or her separate estate, and in such case it could be enforced in equity only. Mo error, therefore, has been committed by directing a verdict for the defendant Chamberlain, as sole surviving executor of the will of Mary Ann Burdock, deceased.

Plaintiff’s exceptions should be overruled and judgment absolute rendered upon the verdict m favor of the defendant Chamberlain, as executor, and in favor of the other defendants upon the nonsuit, with costs.  