
    Durnherr v. Rau.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1891.)
    1. Actions—Wno mat Sue—Promise fob Benefit of Another.
    A covenant by a grantee of land, as part of the consideration of the deed, to pay the incumbrances on the land, is not a promise for the benefit of the grantor’s widow, whose dower right in the land is subject to such incumbrances, and who did not join in the deed to the grantee, so as to entitle her to sue the grantee on his failure to pay off such incumbrances, which were afterwards foreclosed, and the widow’s dower thereby out off.
    3. Covenants—Revocation.
    Where the grantor and grantee in such deed afterwards unite in a quitclaim deed of the premises to a third person, the covenant of the first grantee to pay the incumbrances is thereby revoked as between the parties and as to all persons not having acquired vested rights under the covenant, and the widow’s claim to damages, admitting her to have had any, is thereby defeated.
    Appeal from circuit court, Monroe county.
    Action by Benedicta Durnlierr against Joseph Bau to recover damages for breach of covenant made by defendant with plaintiff’s husband. From an order setting aside the verdict in favor of plaintiff and granting a new trial, plaintiff appeals.
    Bumsey, J., filed the following opinion on the motion for a new trial: “On the 29th day of March, 1875, Emanuel Durnherr was the owner in fee of certain premises in Rochester, Monroe county, which on that day he conveyed to the defendant by a deed expressing a consideration of a sum of money owing to the defendant, and ‘for the further consideration expressed hereinafter.’ It was further provided that the deed was made subject to certain conditions and terms, among which were that the defendant should ‘assume and pay all incumbrances on said premises by mortgages, assessment, leases, and otherwise,’ and that the wife of the said party of the first part, Benedicta Durnherr, reserved her right of dower. ‘ The plaintiff was the wife of the grantoy, and is now his widow.’ She did not join in the deed. Some months after the grant to the defendant, Emanuel Durnherr and the defendant joined in a deed of the same premises to Gustavus Rau, who has since then had the title. Joseph Rau never took possession of the premises. After the death of Emanuel Durnherr, which occurred in May, 1885, the plaintiff brought this action. She alleges that the defendant did not perform his covenant with her husband to pay the incumbrances on the premises, but suffered the mortgages to be foreclosed, whereby her dower was lost. The plaintiff’s claim is that the covenant of the defendant with her husband to pay the incumbrances inured to her benefit, and that, as she has lost her dower interest by the foreclosure, which was the result of the breach of defendant’s covenant to pay, she may recover damages for her injury. In discussing the question presented, we may disregard the express reservation of the plaintiff’s right of dower which is in the deed. If it were not there, the law would make the reservation for her, and therefore she neither gains anything by its presence, nor would she be the loser if it were not there. The plaintiff plants herself, to sustain her right of recovery here, upon the principle laid down in the case of Lawrence v. Fox, 20 21. Y. 268, which may fairly be stated to be that, if one person upon good consideration make a promise to another for the benefit of a third person, that third person may maintain an action upon the promise. Qarnsey v. Rogers, 47 21. Y. 233, 237, Rapadlo, J. Within that principle it is well settled that the incumbraneees on the granted premises could maintain an action against Rau upon his covenant, if there was, when the deed was made, any debt, from Durnherr because of the incumbrance, or any duty on his part to pay it. The courts, however, have become somewhat afraid of the principle of Lawrence v. Fox, and have very decidedly declared that it should not be extended to new cases; indeed, the tendency has been for some time to limit the application of the rule with great strictness. Pardee v. Treat, 82 21. Y. 385, 392; Wheat v. Rice, 97 21. Y. 296, 302. It is now well settled that no action can be maintained under the principle of the Lawrence Case unless there was a debt or duty owing by the promisee to the party claiming to sue upon the promise. Vrooman v. Turner, 69 21. Y. 280, 285. The limitation of the rule is admirably stated in the opinion of the referee in the case of Lorillard v. Clyde, 4 21. Y. Supp. 441, as follows: ‘ There must be—First, an existing claim against the promisee in favor of a third, party; and, second, an engagement by the promisor to discharge his own liability to the promisee by the payment or satisfaction of such claim.’ This opinion was adopted by the general term of the superior court in affirming the judgment in that case. Adopting this limitation, the question is whether the grantor in the deed to Rau owed to his wife any duty which would require him to take steps to protect her right of dower when he conveyed the lands. However difficult it may be to uefine the precise nature of the inchoate right of dower in a wife, the orisin of her estate is quite clear. The right to dower is a vested right, which the woman acquires by marriage to a man who is seised of the land. It accrues to her by law as soon as the conditions come to exist. Moore v. Mayor, etc., 8 21. Y. 110. The right is entirely independent of the husband. It arises out of his act in the sense that he must marry before the right can vest; and when, after his death, it has become an estate, it is a continuation of the estate of the husband. But these are incidents created by law without the volition, and even against the will, of the husband. AVhen it has corneto exist it is entirely beyond the control of the husband. No act of his can affect it. AVhatever he chooses to do with the land, the right of the wife remains in her, entirely unaffected by his act. As the law brings this right, into existence without regard to the husband, and puts it out of his power, I cannot see in what way there lies upon him any duty to protect it, until at least the wife, who alone can do it, has put the right in jeopardy. It is quite-true that the husband will not be allowed before his marriage to make a secret conveyance of his lands to defeat the dower of his future wife, (Swaine v. .Ferine, 5 Johns. Oh. 482; Youngs v. Carter, 10 Hun, 194;) but the" cases holding this go upon the ground of fraud, and not of any active protection which the husband owes his wife in respect to her dower. The case of Banks v. Sutton, 2 P. Wms. 632, has been cited as holding that there is a legal duty on the husband to protect his wife’s dower, but there was no such question in that case. It is true that the master of the rolls did say that the husband was bound by the laws of God and man to provide for the wife during his life, and that, after his death, the moral obligation was not at an end, but he ought to take care of her provision during her life. Bnt*he did not intimate that there was any legal obligation tó take care of her after his death in any way. It clearly would not have been true. There was not then, as there is not now, any legal objection to the disposition by the husband of every item of his property as he chooses, leaving his wife destitute. It is precisely because of this right of the husband that the wife’s dower is preserved to her. But if there be upon the husband a moral obligation to protect his wife’s dower, that does not constitute a duty which the law will enforce or upon which it can base a promise. Watkins v. Halstead, 2 Sandf. 311; Pol. Cont. 157, 158. There is, however, no such moral obligation with regard to the dower. I cannot conceive of any obligation, either in ethics or law, on the part of any one to protect a right which he has not created, which he cannot control, and which he has not the power to destroy, I am referred to no case which establishes any such obligation, and I do not feel at liberty to create it. An analogous question was presented several years ago to the court at special term in this (Steuben) county. A wife had joined in a mortgage upon her husband’s land to secure his debt. In an action to foreclose the mortgage, she moved that the husband be required to pay the debt, and thus prevent the foreclosure, and preserve- her inchoate right of dower. Upon careful examination I was of the opinion that there was no obligation on the part of the husband to do this, and the motion was denied. Cónderman v. Conderman, Steuben special term, April, 1883. While that case is not precisely like this one, it is certainly some authority as to the duty of the husband in respect of his wife’s dower.. I do not think that he owed her such a duty in that behalf as entitled her to sue Bau upon his covenant to pay the incumbrances. Another reason has been suggested why this action cannot be maintained. It is that the deed of Durnherr' and defendant to Gustavus Bau on the 15th day of April, 1875, operated to release the defendant from his covenant to pay the incumbrances. That it was competent for Durnherr to release defendant cannot be doubted. Kelly v. Roberts, 40 N. Y. 432. The deed in question has not been handed me with the papers, and therefore I cannot say what its effect may be. This question I do not decide for that reason, but I put my decision solely upon the ground that the plaintiff cannot maintain this action within the principle of Lawrence v. Fox."
    
    
      Theo. Bacon, for appellant. William E. Edmonds, for respondent.
    
      
       Not reported.
    
   Dwight, P. J.

The action was on a covenant of the defendant to pay incumon lands conveyed to him by the plaintiff’s husband. The covenant was contained in the deed of the husband to the defendant, to which the-plaintiff was not a party. She had joined in the execution of certain mortgages included in the incumbrances referred to, which, in default of payment by the defendant, were foreclosed, and her right of dower was defeated. She commenced this action after the death of her husband, alleging the value-of her dower as the measure of the damages sustained by her by reason of the breach of the defendant’s covenant. In addition to the facts above stated, it appeared that, 17 days after the execution of the deed from the husband to the defendant, the grantor and grantee therein united in a deed of the same premises to one Grustavus Itau, which contained the same covenant, on the part of the new grantee, to pay incumbrances. The court on the trial submitted to the jury the question of the value of the plaintiff’s dower, which was assessed at the value of $500, but on a motion for a new trial set aside the verdict, holding that the plaintiff had not made out a cause of action against the defendant. We think this conclusion was correct, and that the order setting aside the verdict was property granted. The plaintiff’s claim to recover was based upon the doctrine of Lawrence v. Fox, 20 N. Y. 268, and the verdict was set aside, as appears by the opinion of the learned judge at the circuit, on the ground that the case was not within that doctrine, for the reason that the covenantee owed no duty to the plaintiff to protect her inchoate right of dower. Vrooman v. Turner, 69 N. Y. 280. The argument of the opinion is forcible and well sustained by the authorities cited, but we think there was another reason why the case was not within the doctrine relied upon, viz., that the covenant does not, by its terms, purport to be, and there is no proof aliunde to show that it was, made or procured to be made for the benefit of the plaintiff. It was the grantor in the deed who was liable to pay the incumbrances, and the covenant on the part of the grantee stood for so much of the consideration of the sale. It is true that performance of the covenant would have inured to the benefit of the plaintiff, but only consequentially and contingently. The covenant was primarily and directly for the benefit of the grantor himself, and there is nothing to show that it was intended for the benefit of the plaintiff in any event. If it was not made or intended for her benefit, it was certainly not a covenant upon which she can herself maintain an action, she being neither party nor privy to the deed in which it was contained. The provision in the deed which reserved the plaintiff’s right of dower had, of course, no reference to the incumbrances here in question. It was quite unnecessary, it is true, for the purpose of reserving the dower from the effect of the conveyance in which it occurred; but that was the extent of its operation, and it seems to lend no color to the proposition that the covenant to pay incumbrances was intended for the benefit of the plaintiff. But even though the case were clearly within the doctrine of Lawrence v. Fox, we think the plaintiff must fail of her action because of the revocation of the covenant by the execution of the joint deed of covenantor and covenantee to a third person. That deed is before us, as it was not before the judge below on the motion for new trial. It is a quitclaim conveyance of all the i n terest of both the parties to the former deed, and is subject to the same condition as the former as to the payment of incumbrances by the grantee. It was executed some 17 days after the former deed; and there is no evidence that at that time the plaintiff had ever heard of the covenant in the former deed, much less had in any manner accepted or acted upon it. We can have no doubt that the joint execution of the new deed by the grantor and grantee in the old one worked a complete rescission and revocation, as between them, of all the covenants contained in the former, and equally so as to all other persons, except such as had acquired vested rights under such covenants. The plaintiff was clearly not within the latter category. Upon both the grounds here considered we think the order setting aside the verdict and granting a new trial was properly made. Order appealed from affirmed, with costs to abide the final award of costs.  