
    Mary E. Bradley, Resp't, v. Isaac Walker, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed May 5, 1893.)
    
    1. Vendor and purchaser—Acknowledgment by married woman— Evidence op.
    In 1846 twelve persons entered into a mutual agreement that they would leave an open space and court between their houses and the street. Defendant constructed bow windows extending in front of his house and plaintiff brought this action to restrain such construction and compel its removal. The party to the original agreement, through whom defendant derived title, was a married woman whose husband had a freehold estate in rightof his wife in two of the lots only,and the certificate of acknowledgment to such agreement did not state that she acknowledged it on a private examination apart from her husband, freely and without compulsion from him. Held, that such record or a transcript thereof was not evidence against her of the agreement, nor could the original agreement have been read upon the trial of this case without proof of her signature other than that furnished by her imperfect acknowledgment.
    2. Same—Notice.
    Defendant was not chargeable with notice of the existence of such agreement because his counsel found it in making his search, as if he had found the record he would have seen that the agreement did not bind said married woman, and, therefore, did not affect the lot in question.
    3. Same.
    Defendant was not bound to know, from the circumstance of finding a courtyard in front of a block of houses, that there was any binding agreement in reference to the open space in front of them.
    4. Same.
    The agreement bound the husband of the married woman during the joint lives of himself and wife, or any purchaser was bound during his life, but as he died some years after ho and his wife had made a conveyance of the lots by warranty deed, his agreement ceased to bind any one, and the covenants he made ceased to run.
    5. Same.
    Some six years after the making of said agreement an adjoining gore of land, not included therein, waspurchased by said married woman, and became part of the lot in question. Held,, that the restrictions did not apply to such part.
    Appeal from judgment of the New York superior court, general term, modifying judgment of special term.
    
      Henry Hoyt, for app'lt; George W. Cotterill, for resp't.
    
      
       Reversing 44 St. Rep., 313.
    
   Earl, J.

It is claimed by the plaintiff that in July, 1846, twelve persons, who were seized in fee of sixteen lots on the northerly side of West Thirtieth street in the city of New York, entered into a mutual agreement with each other, in writing, in which they recited that they had agreed with eacli other to improve their lots by leaving all such parts of the lots as were between Thirtieth street and a line drawn parallel with the street at a distance of eight feet therefrom, as and for an open space and court, and that they had laid out and,J appropriated all such parts of the lots for an open space and court, to remain unobstructed forever, otherwise than by the necessary steps for entrance, verandas, balconies, platforms, pedestals, iron fence and railings connected therewith and inclosing the same, and the foundations and copings upon which said iron fences and railings should be placed. And they covenanted for themselves and their heirs and assigns, that the open space and court in front of each of the lots should forever remain open and unobstructed, except as above stated. They further mutually covenanted and agreed that the covenants contained in the agreement should be, and they were declared to be, covenants running with the lots respectively and with the titles thereto, and should be equally obligatory and binding upon the heirs of the several respective parties thereto, and upon all and every person who shall thereafter become the owner of any of the lots, as upon the parties who signed the agreement.

Thereafter, as early as 1857, houses were built upon all of the lots, and the principal front of each house was placed eight feet back from the line of the street The plaintiff, by several mesne conveyances, has become the owner of one of the sixteen lots, now number 19 West Thirtieth street, and the defendant, by several mesne conveyances, has also become the owner of one of them, now number 7. He took title to his lot in April, 1890, and thereafter commenced to construct, and did construct, two bow windows in front of his house, extending therefrom about six feet. The plaintiff, claiming that this structure was in violation of the agreement above mentioned, commenced this action to restrain the construction and maintenance ¿hereof, and to compel its removal, and she recovered judgment, which has been affirmed at the general term.

In her complaint she based her right of action solely upon the agreement executed in July, 1846, a copy of which she annexed to the complaint. Lots 45 and 47 designated in the agreement had prior to the execution of the agreement come to Mrs. Susan Alvord by inheritance. She became married to Alonzo A. Alvord, and they were seized in fee "of the two lots, he having a freehold estate in right of his wife during their joint lives, and having no other right or interest therein. Upon the trial the original agreement, a copy of which is an nexed to the complaint, was not produced, but the plaintiff attempted to prove it by a transcript of the record thereof in the register’s office of the city of New York, and she produced and put in evidence a transcript properly certified by the register. From that transcript it appears that while Mrs. Alvord acknowledged the execution of the instrument, the cerficate of acknowledgment does not state that she acknowledged it on a private examination apart from her husband, freely and without any compulsion from him. When the transcript was introduced the defendant objected to it on the grounds, among others, that its execution was not proved; that it was not acknowledged by Mrs. Alvord as required by law, and that as against her the alleged agreement was not entitled to be recorded ; that she, at the time of the alleged execution of the agreement, was a married woman and had no right to contract with reference to her separate property, and that Mr. Alvord had no right to make any agreement imposing a servitude upon the separate property of his wife. These objections were overruled and the transcript received in evidence, and no further or other proof was given of the execution of the agreement by Mrs. Alvord.

At common law the deed and covenant of a married woman in reference to her real estate were absolutely void, and the only way in which she could convey her real estate was by uniting with her husband in levying a fine. Clowes v. Vanderheyden, 17 Johns., 167; Martin v. Dwelly, 6 Wend., 9. Under the Revised Statutes which were in force in 1846, the only mode in which a married woman could convey her real estate was by a deed acknowledged in the mode prescribed by the statute as follows : •“ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her shall not be taken unless, in addition to the requisites contained in the preceding section, she acknowledge, on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband; nor shall any estate of any such married woman pass by any conveyance not so acknowledged." 1 E. S., 758, § 10. The instrument, a copy of which is annexed to the complaint, was a conveyance of real estate within the meaning of the Eevised Statutes, where it is provided, 1 E. S., 762, § 38, that “the term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.”

The instrument was entitled to be recorded only because it was a conveyance of real estate within the meaning of the statute. It was not entitled to be recorded as against Mrs. Alvord, because not properly acknowledged by her. Therefore the record, or a transcript thereof, was not evidence against her of the execution of -the agreement. Indeed, if the original agreement had been produced, it could not have been read in evidence against her without proof of her signature other than that furnished by her imperfect acknowledgment. There was, therefore, a total failure of proof that Mrs. Alvord ever executed the alleged agreement, and there was not an atom of proof that she ever recognized or adopted it or acted upon it, or that she ever in any way became bound by it. Knowles v. McCamly, 10 Paige Ch., 342. On the contrary, the only act which it is proved she ever did in reference to this lot, after the date of that agreement, was a conveyance thereof by a deed executed by herself and husband, with full covenant and warranty, to Eyer and Fielder, on the 1st day of April, 1857, and that deed contained no reference to or mention of the alleged agreement

It must be inferred from the form of that deed that she did not then understand that she was bound by any covenant which in any way impaired her title to the lots or incumbered them, or restricted her right to use them as she saw fit. The plaintiff lays some stress upon the fact that in that deed to Eyer and Fielder the conveyance was made subject to the conditions of two agreements for building and maintaining party walls on the easterly and westerly sides of the lot. The party wall agreements provided that the walls should commence eight feet back from the street line. Those agreements were not executed by Mrs. Alvord. They were executed by her husband, and were adopted and ratified by her, undoubtedly, by making the conveyance to Eyer and Fielder subject to them. But it is not a just inference from these party wall agreements thus recognized by her that she had ever agreed or that she understood that eight feet of the lots adjoining the street were to be kept open as provided in the agreement referred to in the complaint. Much less did that deed operate as a devotion or dedication o£ the eight feet as a court-yard.for the benefit of all the lots along the street. By the party wall agreements Mr. and Mrs. Alvord and their successors in title to the lots were not prohibited from building on the eight feet adjoining the street, and certainly were not prohibited from putting in front of the dwelling house the structure now complained of.

It is claimed on the part of the plaintiff that the defendant became bound to recognize and maintain the courtyard in front of his house in accordance with the agreement because he had notice of it, and therefore the rule of law became applicable that where anyone buys real estate with notice of an equity attached to it he buys it at his peril, and becomes bound by the equity. 2 Pomeroy’s Eq. Jur., 14; Hodge v. Sloan, 107 N. Y., 245; 11 St. Rep., 770. But here there is no proof that he had notice of the agreement of 1846. There is no claim that he had actual notice, and no claim that he actually knew of the instrument on record in the register’s office. But it is claimed that he had notice because his counsel had, searched the records. It would be going a great way to hold that we must presume that in searching the records counsel found such an agreement, and then presume further that he communicated the information to his client. But there is no presumption that anyone has notice of a paper which is not properly recorded, and here, if the defendant’s attorney had found this record, he would have seen that the agreement did not bind Mrs. Alvord, and, therefore, did not affect this lot, as the record did not furnish any evidence that she had ever executed the agreement.

There is some claim made that the defendant may be charged with notice of the alleged agreement, because when he purchased he found the courtyard there in front of the houses. It is quite true that he found the houses generally set back eight feet from the line of the street But he was not bound to know from that circumstance that there was any binding agreement in reference to the open space, and it could not be assumed that there was. In all the deeds in his chain of title from Mr. and Mrs. Alvord there was no allusion whatever to the alleged agreement, and all the deeds were with full covenants and warranty. lie had a right to rely upon the covenants contained in his deed, and had no reason to suppose from anything that appeared upon his lot that there was any burden or easement in favor of other lots except as to the party walls. Indeed, as he looked at the lots at that time he found that the houses located thereon were not uniform in style, height or material, and in the case of several of them there were structures which encroached- more or less upon the eight feet.

It is, therefore, entirely clear that there is no proof of any act of Mrs. Alvord, either in writing or in any other way, devoting or dedicating the eight feet in front of her lots as a courtyard for the benefit of the other lots on the street.

But the agreement executed in 1846 bound Mr. Alvord. As husband, he owned a freehold estate in the land jure uxoris, and during the joint lives of himself and wife he had the right to the rents and profits, and to the use, control and management of the lot During that time he could bind it by his contracts and agreements, and he could deal with it as if he were the absolute owner thereof, except that he could bind it only for the period of the joint lives. 2 Kent, 130, 133: 2 Blackstone, 126; Vartie v. Underwood, 18 Barb., 561. He was undoubtedly bound by that agreement, and could have been restrained from its violation, and any purchaser from him, or from him and his wife, was also bound during his life. But he died in 1862, some years after he and his wife had made a conveyance of the lots by warranty deed. Then his agreement ceased to bind anyone, and the covenants he made ceased to run. If' his wife had survived him she would not have been bound by his covenants, and neither is the successor in the title who holds under her.

It is, therefore, clear that if we assume that Mrs. Alvord owned the whole of the lot No. 7 West Thirtieth street at the date of the alleged agreement, it would be impossible to maintain that a court yard of eight feet had been devoted or dedicated in such a way as to bind the defendant

But. there is a further difficulty in the plaintiff’s case which, upon this record, is insuperable. At the time of the agreement in 1847, only a portion of lot No. 7 came to the line of Thirtieth street. At that time Mr. Anderson owned a gore in the southeast corner of what is now lot No. 7, owned by the defendant. The width of the defendant’s lot is twenty-five feet, and of that twenty-five feet fronting on the street Anderson owned seventeen feet and five inches. The gore owned by him was upon the same map upon which Mrs. Alvord’s lot was numbered 47, designated as 58, and the latter lot was in no way included in the agreement. So, even if Mrs. Alvord could be held bound by the agreement of 1846, that agreement in no way touched this gore, lot No. 58. More than six years after the execution of that agreement Mrs. Alvord purchased the gore of Anderson for $2,000, but there is no evidence of any kind that that lot was' ever subject to the agreement, or that she ever intended to subject it to the agreement, or ever dedicated any portion of it for a court yard, and it does not appear that any portion of the structure now complained of is upon that portion of the lot which she owned in 1846. Even if this lot, to the extent of seven feet and five inches on the westerly side thereof, could be subjected to this court yard agreement, we find nothing in the evidence that could subject the other portion of the lot purchased by her of Anderson in 1853 to that agreement. It does not appear that the purchase of lot No. 58 was contemplated by Mrs. Alvord at the date of that agreement, and a serious burden, such as is claimed by the plaintiff, could not be imposed upon that portion of the present lot No. 7 without more proof than we are able to find in this record.

For all these reasons, we think the judgment should be reversed and a new trial granted, costs to abide the event ' .

All concur.  