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N. Y. Rep.]

Dissenting opinion, per GRAY, J.

public character, nor that she was in such public station, or so prominent in public works, as to make her name and memory public property. That she was engaged, throughout her life, in acts of benevolence and beneficence, may be perfectly true; but she was never a public character and in no just sense can it be said that, because of what she chose to do in the private walks of life, she dedicated her memory to the state or nation as public property. To hold that, by reason of her constant and avowed interest in philanthropical works, unconnected with public station, the right accrued to an association of individuals, strangers to her blood, to erect a statue of her, typifying a human virtue, through contributions solicited from the general public, is, in my judgment, to assert a proposition at war with the moral sense and I believe it to be in violation of the sacred right of privacy; whose mantle should cover not only the person of the individual, but every personal interest which he possesses and is entitled to regard as private, when through no act of his, nor by any peculiar circumstances, has the public acquired any right in them. Unless equity does interfere, the right of privacy will be lost and that will become the property of the public, which, our sentiments and reason and our sense of justice tell us, is the private property of the relatives of the deceased person. That the plaintiff is entitled, if any one is, to a remedy, has been heretofore mentioned and it is the finding of the trial court, and that that remedy may be preventive in its character seems to me to be within the reason and principle upon which equity proceeds.

It is not necessary that the proposed statue of Mrs. Schuyler should be libelous in character. The wrong consists not in that fact, but in the unauthorized acts of the defendants, which will invite adverse comment and public criticism upon the life and character of the deceased, bring her name and memory into more or less unenviable notoriety and inflict upon her immediate relatives and representatives more or less injury in their feelings and their desires for that privacy, which, in their private station of life, they have the right to enjoy.

The threatened offense is of a permanent and continuing

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nature and, in many senses, differs from cases of mere libelous publications. I think that a case was made out where equity was unfettered in its exercise by any legal principle and where the decree of the court below should be affirmed. All concur with PECKHAM, J., for reversal, except GRAY, J., who reads for affirmance.

Judgment reversed.

SARAH MATILDA MYGATT et al., as Trustees, etc., Respondents, v. GEORGE S. COE, Appellant.

1. COVENANTS IN DEED-PRIVITY OF ESTATE. Privity of estate is essential to carry covenants of warranty and quiet enjoyment to subsequent grantees in order to support a right of action by them against the original covenantor, when there is an eviction by paramount title.

2. POSSESSION OF LAND-PRIVITY OF ESTATE. Legal possession of land, though the lowest interest or title that a person can have, is an estate therein, capable of being conveyed, and when conveyed creates a sufficient privity of estate between grantor and grantee to carry the covenants of warranty and quiet enjoyment through successive conveyances to a remote grantee.

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3. PRESUMPTION AS TO POSSESSION OF LAND- - HUSBAND AND WIFE. The presumption is that the legal possession of land follows the ownership, and where husband and wife are living on her premises she is presumed to have the legal possession exclusive of the husband's possession, unless there is something to show the contrary.

4. WIFE'S SURRENDER OF POSSESSION TO HUSBAND. There must be a surrender by a wife to her husband of some interest or dominion over her real property by some act or agreement on her part, express or implied, which will take from her at least some right or incident ordinarily pertaining to the absolute ownership of real estate, in order to give him any legal possession of her premises on which they live together.

5. POSSESSION OF LAND-COVENANTS UPON CONVEYANCE. The legal possession of land which is sufficient to carry the covenants upon a conveyance must be a right or interest in the nature of property, valid at all events against all extraneous intrusion and capable of the same kind of transfer and devolution as other property.

6. EVIDENCE AS TO HUSBAND'S POSSESSION. Evidence that a man lived with his family on his wife's premises; that while there he paid some small bills for repairs; and that on one occasion the taxes on the property were paid with his personal taxes in one payment by some one not identified by the testimony, is insufficient to show that the husband had any legal pos

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session of the premises which can support his covenants of warranty and quiet enjoyment in a deed of the premises made by his wife and himself as grantors.

7. RECEIPT OF CONSIDERATION BY HUSBAND - EVIDENCE. A witness may be asked whether or not he received any part of the consideration paid for and expressed in a deed of his wife's premises with covenants of warranty and quiet enjoyment in which he joined as grantor and covenantor, where the issue is as to his possession of the premises; since the evidence may have some bearing on that issue and does not tend in any just sense to contradict or vary any right or liability depending upon the terms of the instrument.

8. COVENANT RUNNING TO HEIRS AND ASSIGNS. The fact that a covenant runs to the grantee, "his heirs and assigns," does not dispense with the necessity of privity of estate in order to carry the covenants with the land, and the mere employment of these words will not make a covenant, which, in its nature or otherwise is personal, run with the land.

9. GRANTOR'S LACK OF TITLE-EFFECT ON COVENANT. The circumstance that a woman had no title to land which she assumed to convey by a deed in which her husband joined has no force when determining the nature and character of the covenants in relation to the husband's liability thereon by reason of possession; but that question must be determined as if she had title.

Mygatt v. Coe (124 N. Y. 212); S. C. (142 N. Y. 78), followed.
Mygatt v. Coe (83 Hun, 612), reversed.

(Argued May 28, 1895; decided November 26, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 14, 1894, which affirmed a judgment in favor of plaintiffs entered upon the decision of the court on trial at Circuit.

The nature of the action and the facts, so far as material, are stated in the opinion.

Joseph H. Choate for appellant. The defendant never was in possession of the premises in question, and there is consequently no sufficient privity of estate to carry the covenants with the land. (Stanley v. N. U. Bank, 115 N. Y. 124; T. N. Bank v. Guenther, 123 N. Y. 569; Frantz v. Ireland, 66 Barb. 386; Jones v. Chapman, 2 Exch. 821; Lightwood on Poss. of Land, 16, 37; Lyall v. Kennedy, L. R. [18 Q. B. D.] 813; 142 N. Y. 87; Bunker v. Rand, 19 Wis. 254;

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Swift v. Agnes, 33 Wis. 230; Redfield v. U. & S. R. R. Co., 25 Barb. 54; Booth v. Small, 25 Iowa, 178; Pollock & Wright on Possession, 14, 30, 126; 2 Bouvier Law Dict. 435; 2 Rapalje & Lawrence Dict. 977; Civil Code of Louisiana, art. 3399; Fowler v. Poling, 2 Barb. 300; Hardenburgh v. Crary, 50 Barb. 32; Knapp v. Smith, 27 N. Y. 278; Tredwell v. Reddick, 1 Ired. [N. C.] 56; Williams v. Buchanan, 1 Ired. [N. C.] 535; Bynum v. Carter, 4 Ired. [N. C.] 310; Morrison v. Kelly, 22 Ill. 610.) The defendant should have been allowed upon the trial to show that he received no part of the consideration expressed in the deed to Nancy Fisher. (Code Civ. Pro. § 840; Wilson v. B. E. Soc., 10 Barb. 308; 1 Greenl. on Ev. [14th ed.] § 285; Best on Ev. 202; Shephard v. Little, 14 Johns. 210; Bowen v. Bell, 20 Johns. 338; M'Crea v. Purmort, 16 Wend. 460; Bingham v. Weiderwax, 1 N. Y. 509; Barnum v. Childs, 1 Sandf. 58; Stoughton v. Lynch, 2 Johns. Ch. 210; Huntington v. Havens, 5 Johns. Ch. 22.) The defendant cannot be held liable simply because his covenant was with the grantee, her heirs and assigns. (Rawle on Cov. [5th ed.] §§ 2, 203; Spencer Case, 5 Coke, 16; Lougher v. Williams, 2 Levinz, 92; Hyde v. Windsor, Cro. Eliz. 552; Norcross v. James, 140 Mass. 188; Keppel v. Bailey, 2 M. & K. 517; Dart on Vendor & Purchaser [5th ed.], 777, 778; Sugden on Vendors, 577, 578; Spencer's Case, Smith's L. C. 184; Slater v. Rawson, 1 Metc. 450; Hurd v. Curtis, 19 Pick. 459; Jacques v. Short, 20 Barb. 269; Dinman v. Prince, 40 Barb. 213; Andrews v. Appel, 22 Hun, 430; P. Ins. Co. v. C. Ins. Co., 87 N. Y. 401; Clark v. Devoe, 124 N. Y. 120; Dexter v. Beard, 130 N. Y. 549, 124 N. Y. 214; 142 N. Y. 87; Nye v. Hoyle, 120 N. Y. 203; Coleman v. Bresnaham, 54 Hun, 622; Hart v. Lyon, 90 N. Y. 663; 11 Am. Law Reg. 198.) Even if it be held that the covenants ran with the land, these plaintiffs cannot take advantage of them. (Union Col lege v. Wheeler, 61 N. Y. 118; Calkins v. Calkins, 3 Barb. 305, 312; Bryan v. Butts, 27 Barb. 503; Astor v. Hoyt, 5 Wend. 603, 615; Town v. Needham, 3 Paige, 546; Andrews v. Wolcott, 16 Barb. 22; Rawle on Cov. [4th ed.] 313.)

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Edward M. Grout for respondents. There is sufficient and uncontradicted evidence to sustain the various findings of possession. (Hardenburgh v. Crary, 50 Barb. 32; Knapp v. Smith, 27 N. Y. 277; Alexander v. Hard, 64 N. Y. 228; Pope v. Hanmer, 74 N. Y. 240, 245; Churchill v. Onderdonk, 59 N. Y. 134; Frantz v. Ireland, 66 Barb. 386, 389; Mygatt v. Coe, 142 N. Y. 84; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408.) These findings being supported by the evidence, this court will not disturb the judgment. (Code Civ. Pro. § 1337; Keasbey v. B. C. Works, 142 N. Y. 467; Dean v. Raplee, 145 N. Y. 319, 327.) The possession thus shown conforms to the recognized definitions of the term. (Williams v. Buchanan, 1 Ired. [N. C.] 540; Mayor, etc., v. Park Comrs., 44 Mich. 603; Brown v. Volkening, 64 N. Y. 80; Bacon v Sheppard, 6 Halst. 197; Churchill v. Onderdonk, 59 N. Y. 136; Sunol v. Hepburn, 1 Cal. 263; Coryell V. Cain, 16 Cal. 573; Alexander v. Hard, 64 N. Y. 228; Slater v. Rawson, 6 Metc. 439; Mygatt v. Coe, 142 N. Y. 87; 124 N. Y. 221; Harsha v. Reid, 45 N. Y. 415.) The exclusion of the evidence offered to contradict the recital of the defendant's deed was proper. The defendant is estopped from denying that he received some consideration. (Stackpole v. Robbins, 47 Barb. 219; Hebbard v. Haughian, 70 N. Y. 54; Barnum v. Childs, 1 Sandf. 62; M'Crea v. Purmort, 16 Wend. 460; Gerard on Titles [3d ed.], 508.) The defendant is liable to the plaintiffs by force of the words "heirs and assigns" in his covenants, as a matter of clear intention and of valid contract made for the plaintiffs' benefit, and the defendant is now estopped from claiming otherwise. (Mygatt v. Coe, 142 N. Y. 87; Dexter v. Beard, 130 N. Y. 549; Clark v. Devoe, 124 N. Y. 120; Pars. on Cont. chap. 2, § 1; 3 Washb. on Real Prop. [5th ed.] 6, § 2; Beddoe v. Wadsworth, 21 Wend. 120; Nye v. Hoyle, 120 N. Y. 195; Coleman v. Bresnaham, 54 Hun, 619; Andrews v. Apple, 22 Hun, 429; Colby v. Osgood, 29 Barb. 339; Ernst v. Parsons, 54 How. Pr. 163; Boyd v. Belmont, 54 How. Pr. 513; Priess v. Le Poidevin, 19 Abb. [N. C.] 123;

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