
    DEN ex dem. CAMP against QUINBY.
    Mortgage by feme covert, without her husband, does not affect his rights, notwithstanding a marriage agreement states that her property shall remain at her disposal.
    This cause being noticed for the Essex Circuit, in April, 1811, and called on in the paper, the parties agreed to the following state of the case:
    That Mary Condict, widow, being seized in fee of three several [*] lots of land in the county of Essex, the premises in question, became bound in a certain bond or obligation, together with Simon Tompkins and Joseph Tompkins, to the lessor of the plaintiff, in the penal sum of $574.00, conditioned for the payment of $287.86, bearing date 16th April, 1805. Afterwards, a marriage being contemplated between the said Mary Condict and the defendant, Caleb Quinby, a certain writing, or articles of agreement, was entered into by the said Mary and Caleb, under their respective hands and seals, bearing date the 31st December, 1808. Among other things, the said agreement contained [719] the following: “ That the marriage shall not alter, change, or in any way affect the right of property; but that each of their property shall be at their own disposal, and go to their heirs and assigns in the same manner as though the marriage had not taken place.” Shortly after the execution of the articles of agreement, the marriage was duly had and solemnized. After the marriage, the said Mary alone, not being joined by her husband, executed a certain deed of mortgage. bearing date the 31st October, 1810, for the premises in question, being the three lots before mentioned, to Nathaniel Camp, the lessor of the plaintiff, to secure the payment of the before mentioned bond, which mortgage was duly acknowledged by the said Mary, and regularly recorded.
    
      The action is brought to recover the lands contained in the mortgage; the defendant, Caleb Quinby, admits that he was, at the time of bringing this action, in possession of the said mortgaged premises, and that he still is in possession of the same.
    In September Term this case was submitted to the consideration of the court without argument; and at this term, Pen'XIXGTOX, J., delivered the opinion of the court.
   Pexsixgton, J. — I

am inclined to think, that under our statute, a conveyance made by a feme covert, separate from her husband, of her own real estate, acknowledged before a judge, according to the act, [*] will have the effect of levying a fine. If a feme covert levies a fine, it binds her and her heirs. 10 Coke fS. If a woman covert levy fine alone, as if she were sole, this shall bind her, for this reason, that she shall not be received to say that she was covert. Hob. 225. But in both these books it is expressly laid down, that this act will not affect the husband. On the marriage, an estate for the joint lives of the husband and wife at least, vests in the husband, and no act of the wife alone, separate from her husband, can divest it. The question then is, does the agreement before marriage alter the case? Notwithstanding this agreement, I apprehend, the title vested in the husband; the mortgage and agreement, made at different times, under different circumstances, and between different parties, cannot be construed as one instrument. How far a court of equity, on a proper bill filed, would compel the defendant to join his wife in a mortgage, or other conveyance, may perhaps be collected from the observations of Lord Harwicke, in case of Peacock v. Monk, 2 Ves. 192.

But that is not the question; we are at common law, acting on a legal title; a title that, on the marriage, became vested in the husband. The authority of the wife to deprive him of it, rests in agreement; and although the defendant may be guilty of an act of bad faith, in holding possession of the land against his agreement, yet the title is in him, and he must have judgment.

Van Arsdale, for plaintiff.

Halsey, for defendant.

Judgment for defendants.  