
    ANNA MARY ZIMMERMAN, by her Guardian, etc., Respondent, v. JOHN S. SCHOENFELDT, Appellant.
    
      Assent to submission of issues to jury—effect of, on trials befoi'e cowrt — right to hare jury find facts — sufficiency of complaint and form of triad deteo'mined by its allegations and not the prayer foi' relief—Ma/i'ried woman—testamentary powm's of— comeyance to, of property paid foi' by her husband.
    
    A party assenting to the submission of an issue to the jury cannot, on appeal, avail himself of any informality therein, if any exists.
    The court may, in the trial of an action before it, in every case embraced in section 254 of the Code, have the aid of a jury, and submit to its determination as many or as few questions of fact, presented by the pleadings, as it may deem expedient.
    If a complaint contains all the allegations necessaiy to constitute a cause of action for the removal of a cloud upon title, it is sufficient to sustain a trial conducted in a form appropriate to said cause of action, although the prayer of the complaint is in ejectment.
    Chapter 200, of 1848, as amended by chapter 375, of 1849, does not give to a married woman power to make a testamentary disposition of her real estate while she is an infant.
    A defect of parties apparent on the face of the complaint must be.taken advantage of by demurrer or it is waived.
    A witness may consult a paper in order to refresh his memory, and testify to the fact recorded by it if -he have a recollection of it independent of the paper.
    A conveyance to a wife of property paid for by her husband is not condemned by law in the absence of proof of fraudulent design, and is valid against all persons, except creditors existing at the time of the conveyance, whose demands have not been paid.
    Appeal from a judgment in favor of plaintiff, .entered at Special Term, April, 1873.
    Jacob Wiel and Clara, his wife, by deed, dated March 29th, 1864, conveyed certain premises on the northerly side of Thirty-fifth street, in the city of New York, to Anna M. Zimmerman, wife of Leo Zimmerman, and mother of the plaintiff. The consideration money was paid by Leo Zimmerman, the husband. Mrs. Zimmerman executed a will, by which she devised and bequeathed all her estate to her husband, and subsequently died, leaving her surviving her husband, Leo Zimmerman, and the plaintiff, Anna Mary Zimmerman, her sole issue. The will of Mrs. Zimmerman was duly proved before the surrogate of New York as a will of real and personal estate.
    Subsequently Leo Zimmerman married again, and by deed dated September 22d, 1866, Leo Zimmerman and wife conveyed the premises in question to the defendant, who was in possession, claiming title, when this action was brought.
    The complaint, after stating the death of Anna Mary Zimmerman, June 25th, 1864, alleges: “ That on the 22d day of September, 1866, said defendant, John S. Sehoenfeldt, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to her damage $8,000. That said Anna Mary Zimmerman was, at' the time of her decease, an infant of the age of nineteen years nine months and nine days, and no more. That the said defendant, Sehoenfeldt, claims to be the owner of said property through a pretended will of said Anna Mary Zimmerman. That said Anna Mary Zimmerman, at the time aforesaid,, leaving said pretended will, was an infant under the age of twenty-one years, and incapable in law of devising real estate. And that said pretended will, if any existed, was and is of no force and virtue, but null and void. Wherefore the plaintiff demands judgment against the said defendant for said sum of $8,000, and for an accounting, and for judgment against said defendant therefor; and that the title of said real estate in fee simple, may be adjudged to be in this plaintiff; and that said defendant do forthwith deliver up to this plaintiff, the possession of said premises and every part thereof; or for such other or further relief in the premises as may be just, with costs.’,’
    
      Wm. Henry Anthon, for the appellant.
    This was an action in the nature of an ejectment suit, and the complaint should have been dismissed. All the requisites of tenancy by the courtesy were complete, to wit: Marriage, seizin, issue born alive, death of wife, and survivorship of husband and issue. (1 Coke Inst., 30 a; Jackson v. Johnson, 5 Cowen, 87.) The interest of a tenant by the courtesy is not a mere charge or incumbrance; it is a legal estate in the land, and may be set up by a stranger in bar of a recovery by the heir. (Adair v. Lott, 3 Hill, 182.) The husband has all the rights given to him by the common law, which never has been repealed by these later acts. (Ransom v. Nichols, 22 N. Y., 110; Furguson v. Tweedy, 43 id., 543.) The motion to dismiss should have been granted, because it was conceded that Anna Mary Zimmerman, the mother of the plaintiff, was, at the time of making the will in question, a married woman, which overcomes the disability of infancy. (The act of April 7th, 1848, as amended in 1849.) The word “ any ” qualifies this entire provision, and makes marriage the important requirement without consideration of age óther than the legal age of marriage.
    
      Wm. W. Niles, for the respondent.
    It is not true that any person without regard to age,'may make a will of real estate. The sole power to devise is derived from the statute. (Laws of 1867, chap. 782, § 3.) If there was a defect of parties, it is waived by the answer. (Code, § 148.) The conveyance of a house to one’s wife, to save it from the hazards of business, and to avoid its falling into the hands of creditors, even if that were proved, is not condemned by the law, when there are no creditors existing at the time of the conveyance, as in this case. (Tappan v. Butler, 7 Bosw., 480; Wilbur v. Fradenburgh, 52 Barb., 474; Holmes v. Clark, 48 id., 237; 4 Comstock, 284; Phillips v. Wooster, 36 N. Y., 412.) Even if there had been creditors, the defendant cannot make that objection, for he does not claim to have been one. (Scott v. Guthiur, 10 Bosw., 408.)
   Beady, J.:

It may.be said that the complaint in this action was, in the language of its prayer, in ejectment. It was tried as an equity cause — as one brought to remove a cloud from the plaintiff’s title. One question only was submitted to the jury. There was, apparently, no dispute about the other facts on which the plaintiff relied. It is also apparent that no valid objection, if any, was taken to the course adopted by the presiding judge. The plaintiff claimed the fee of the premises mentioned, as the heir at law of her mother, Anna M. Zimmerman, who died while under the age of twenty-one years. The defendant claimed the fee under a deed executed by Leo Zimmerman and wife. Zimmerman derived his title from the will of his former wife, the plaintiff’s mother, by which he was made sole devisee. The action of ejectment could not be maintained, because the defendant’s grantor was tenant by the courtesy, and entitled to the rents, issues and profits of the land during his life. The enabling act, in reference to married women, passed in 1848, and the amendments thereto in 1849, have not changed the rule of the common law, in this respect.

It was doubtless for this reason, that the trial was conducted in the manner assumed at the circuit. It was claimed upon the argument of the appeal, that the defendant and his counsel regarded the action as one in ejectment. The plaintiff and her counsel insisted that it had not been so regarded by them, and had not, in that aspect, been presented for consideration. That it was brought and prosecuted for the sole purpose of removing a cloud upon the plaintiff’s title, and had been tried on that theory. The presiding judge, in his charge, and before submitting the issue to the jury upon which they were to pass, said: “Independently of this will, itself, the husband during his life is tenant by the courtesy, and would have the right to the possession of the property ; ” and this plainly indicated to the defendant’s counsel what must follow.

The issue submitted was as follows : “Was Anna Mary Zimmerman, the mother- of the plaintiff, twenty-one years of age at the time of her death % ” and to that disposition of the case no objection was made.- The counsel for the defendant excepted generally to the charge, and specially to a part of it, in reference to the testimony of one of the witnesses, which bore upon the age of the decedent. The defendant’s counsel also made a request of the court to charge, but it did not relate to the form of the submission of the case to the jury. The defendant cannot now avail himself of the informality, if one occurred. He assented to the issue which was submitted to the jury for their determination, and is bound by it.

The case of Carr v. Carr, is analogous to this case. The action was brought to recover possession of a house. The defense was, that the deed under which the plaintiff claimed, was taken by him simply as security for a loan of money, to the defendant’s deceased husband. At the close of a trial at circuit before a jury, and after a request to charge by the plaintiff had been refused, and exception taken, the court proposed to counsel that the jury be instructed to find upon particular questions of fact, to be stated in writing, and that, after verdict on such questions, the cause should be decided by the court. The counsel consented, and the court thereupon submitted the questions intended. The point taken, among others, was, that a special • verdict must present all the facts necessary to require in law a judgment, and that the verdict rendered on the questions must be treated as a special verdict, or as a mistrial. The trial was pronounced by the Court of Appeals one, in substance, without a jury, and a decision upon the whole evidence, with the aid of the finding of the jury upon the two questions of fact; and the verdict and judgment were sustained, although the record did not disclose what other facts were found by the court, or what legal effect, if any, was given to the facts found by the jury. In this case, as suggested, the proceedings were in substance and effect the same. The jury found the only disputed fact of any importance, and the court pronounced judgment upon their finding. Indeed, the right of the plaintiff to be relieved from the deed held by the defendant was clear, as we shall see, if the testatrix, under whom his grantor claimed, was incapable of making a will.

The assent of the defendant to the submission of the question passed upon by the jury, was equivalent to a consent thereto, and particularly must this be the case when the defendant did not ask that any other question should be considered by the jury. This case differs, however, from the one cited, in this respect, namely, that all the facts appear in the record, and the judgment rendered is thoroughly understood.

•Secondly : Aside from this consent, there can be no doubt of the right of the court, under the Code, when the cause is called for trial, to order questions to be tried by the jury, if it is apparent that their determination will depend upon conflicting evidence.

There is no doubt either, that if such be the better mode of disposing of the controversy, it may be adopted during the trial. “ I suppose it is the right of the court,” said Justice Harris, in that case, “ to have the aid of the jury upon the trial, in every case embraced in the two hundred and fifty-fourth section of the Oode, and to submit to its determination as many or as few of the questions of fact presented by the pleadings, as it may deem expedient. I have, in repeated instances, availed myself of this power at the circuit.”

The complaint, notwithstanding that in some respects it may have been in form in ejectment,'averred all the facts necessary, to authorize the equitable relief granted by the judgment. It alleged that the defendant claimed through a pretended will of Anna Mary Zimmerman, and that she was an infant, under twenty-one years, incapable of devising real estate. If this was the true source of the defendant’s title, as it was shown to be, then the deed under which he claimed was a cloud, and should be removed. The defendant was, by the allegations mentioned, advised of the precise nature of the plaintiff’s claim, and cannot be regarded as having been surprised at the mode in which the issue was disposed of. It appears, for ¡these reasons, that there was no mistrial, and that what was done at the circuit, was legally and properly done in the respects named.

The respective motions of the defendant’s counsel for a dismissal of the complaint, were properly denied. Sufficient proof had been given, to authorize the submission of the question entertained by the court to the jury; and, on the counsel’s opening of the plaintiff’s case, the facts stated were quite sufficient to demand the continuance of the action, containing, as it did, a statement of the facts upon which she relied for relief.

These views dispose of the questions in relation to the form of the trial. The act of 1848, amended in 1849, provides that any married female may take by inheritance, 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 and estate therein, in the same manner, and with the like effect, as if she were unmarried. It is contended that the word any,” qualifies this entire provision, and makes marriage the important requirement, without consideration of age, other than the legal age of marriage. This is, however, an erroneous view of the laws in question. The only power to devise real property, given by the acts mentioned to married females, is like that which they could exercise if unmarried. They may devise their real estate in the same manner, and with the like effect, as if unmarried. Such is the qualification; such the limit. They were, by this legislation, relieved from a disability created by marriage, and gifted with the same right, in the respect named, as other persons, in reference to the age at which they might act. It was not intended to give them any greater power. Unmarried, they had no power to make a testamentary disposition of their real estate while infants. The statute is express upon this subject, and relates to both sexes: “All persons except idiots, persons of unsound mind, married women, and infants, may devise their real estate,” etc. The act of 1849, repeals the prohibition against married women contained in the Revised Statutes, it is true, but that against infants is not affected, Anna Mary Zimmerman, therefore, had no power to make a valid will. '

It was also suggested on the trial, that Leo Zimmerman, the executor of the last will and testament of A. M. Zimmerman, should have been made a party to the action; but this proposition was not sound. He was devisee and executor under the will. He had conveyed all his interest acquired by the will, and, as to the realty, was estopped by his grant. He had nothing to reserve ■—■ no further interest. He not only aliened his interest, but he was a witness on the trial, and, as the father of the plaintiff, gave evidence on her behalf. The objection stated was waived however. A defect of parties, apparent on the face of the complaint, must be presented by demurrer, or it is waived. None of the exceptions taken, therefore, seems to be available. Those already considered were valueless, and those that remain are equally so.

The right of a witness to consult a paper to refresh his memory, cannot be questioned, nor his competency to testify to the fact recorded by it, if he have a recollection of it independently of the paper. The memorandum is only auxiliary, and not necessarily a part of the evidence. Such was the character of the evidence of John Peter, the father of the decedent, Mrs. Zimmer-man, and the objections to its reception and value were untenable.

The proposition that the defendant could avail himself of the fact that the property .in question was purchased by the money of his grantor, Leo Zimmerman, and should therefore be held to have passed to him by virtue of the deed of the latter, cannot be maintained. The conveyance to the wife is not condemned by law, in the absence of proof of fraudulent design, and is valid against all persons except creditors existing at the time of the conveyance, whose demands have not been paid. The defendant is not a creditor of such standing,

These are the only questions which we consider it necessary to pass upon in detail.

The principles here enunciated cover those remaining, and which are therefore declared to be untenable. No question was raised upon the argument about the form of the decree.

We think the judgment should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed. 
      
       Matter of Winne, 2 Lans., 21; Ransom v. Nichols, 22 N. Y., 110; Barnes v. Underwood, 47 id., 351; Hatfield v. Sneden, 54 id., 280.
     
      
       52 N. Y., 252.
     
      
       O’Brien v. Bowes, 4 Bosw., 657, and cases cited; see, also, Brinkley v. Brinkley, 2 N. Y. Sup. Ct R., 501.
     
      
       Church v. Freeman, 16 How. Pr., 294.
     
      
       Chap. 200.
     
      
       Chap. 875.
     
      
       2 Statutes at Large, 58.
     
      
      
        Supra.
      
     
      
      
         See Wadhams v. American Home Missionary Society, 12 N. Y., 415.
     
      
       Code, §§ 144, 147, 148; Fisher v. Hall, 41 N. Y., 416; see collection of authorities, Wait’s Code, 240.
     
      
      Cole v. Jessup, 10 N. Y., 96; Russell v. Hudson River R. R. Co., 17 id., 134; Huff v. Bennett, 6 id., 337.
     
      
       Tappan v. Butler, 7 Bosw., 480; Holmes v. Clark, 48 Barb., 237; Wilbur v. Fradenburgh, 52 id., 474; Phillips v. Wooster, 36 N. Y.,412; Seward v. Jackson, 8 Cowen, 406.
     