Dempsey v. Tylee.

IX. The decision of the referee should be reversed, and the decree should adjudge the title of the moiety which was in Catharine E. Tylee, to belong to her heiresses-at-law, at the time of her death, free from the Lovett mortgage, and a decree be made in conformity, giving two-thirds of it (one by purchase) to the plaintiff, and declaring that the remaining third belongs to the devisees of Elizabeth Leaycraft. That the alleged deeds of the 21st and 23d of August, 1822, and the alleged trust deed to Morris, and the alleged will, are void, &c. That the estate of Tylee died with his wife, and that he had no right to the rents after that time. That the receiver account before a referee, and after paying all costs to be taxed, and counsel fees to the plaintiff (to be certified), and the costs of the late Elizabeth Leaycraft, Asa Hall, Edward B. Tylee, as trustees, and of the heiresses-at-law of said Elizabeth Leaycraft, that he account, and after allowing and deducting commissions, pay two-thirds of balance to the plaintiff or her attorney, and hold the remaining one-third to be applied for by or on behalf of the said devisees of the said Elizabeth Leaycraft, with liberty for an account against Tylee, for any received since the death of his wife.

C. W. Sandford and D. Lord, for Chastelain, made the following points.

I. If the deed of Tylee and wife, to George P. Morris, trustee, &c., of October 24, 1839, was valid in all its limitations, the title of the premises in suit was vested in Daniel E. Tylee, in fee simple, on the death of Catharine Tylee, February 22, 1843.

Either, 1st, By the appointment of the latter, duly proved by Edward T. Lee and Christopher E. Lee, or, 2d, By the limitation on her dying without making an appointment contained in the body of the deed.

II. If the deed aforesaid was ineffectual as to any limitation on the death of Catharine Tylee, then

The conveyance of Daniel E. Tylee and Catharine Tylee, to James Tylee, and the conveyance by the latter to Daniel E. Tylee, both in August, 1822, vested the title in the latter, in

Dempsey v. Tylee.

fee simple; and his estate, after the death of Catharine Tylee, was an absolute fee in possession.

The proof of the due execution and delivery of these deeds was sufficient. As to the recording of deeds proved before the Revised Statutes, see 1 R. S. 760, § 22, and the reading of copies in evidence, 1 R. S. 759, § 17. The proof of acknowledgment was sufficient under the law of 1813. (See Appendix, 1st ed. 3 R. S.; App. 34, compared with 1 R. S. 758, § 12; 15 Wend. R. 547; Scrugham v. Wood, Johns. Ch. C. 251; Souverbye v. Arden, Doev. Knight, 5 B. and Cress. 668; Eaton v. Scott, 6 Simons R. 31; 2 Hill. R. 660, 641.)

III. The mortgage to George Lovett, of June 30, 1843, and the conveyance of March 21, 1846, were both effectual, being supported by the estate in Daniel E. Tylee.

IV. The assignment of March 21, 1846, being prior in date to the order of May 26, 1847, taking the bill as confessed against Daniel E. Tylee, the grantor, is not affected by any such subsequent admission by him.

The mere filing of the bill by the plaintiff did not bring her within the protection of the recording act, against unrecorded deeds.

V. The decree should be affirmed with costs.

BY THE COURT. BOSWORTH, J.-Catharine Westervelt, at the time of her marriage, in August, 1806, to Daniel E. Tylee, was seized in fee of an undivided half of the premises in question, subject to the life estate of her mother therein. Her mother, in June, 1808, conveyed all her interest in the undivided half of the lots to D. E. Tylee. This conferred on him a right to the rents and profits during such life, which expired in May, 1831.

On the 21st of August, 1822, Daniel E. Tylee and wife conveyed the undivided half of these lots by deed to James Tylee. The deed was acknowledged on the day of its date by both of the grantors, and by the wife separately. On the 23rd of the same August, James Tylee reconveyed the same premises to Daniel E. Tylee by a deed of that date, and acknowledged on that day. These deeds were not recorded until the 28th of September, 1843. According to the Register's

Dempsey v. Tylee.

entry, they were left to be recorded by B. S. Brooks, who was then acting for D. E. Tylee, in defending the first entitled suit.. That suit was commenced about the 27th of July, 1843, and on that day a subpoena and injunction, in it, were served on D. E. Tylee.

These deeds were not produced on the trial, but were proved by the production of copies duly certified by the Register of this city and county. The deeds were by law entitled to be recorded (1 R. S. 760, §§ 22 & 23,) and a copy of the records was competent evidence of the execution and delivery of the deeds. (Id. 759, § 17.)

The plaintiff insists that there is express proof that the deed to James Tylee was never delivered to him. The testimony of D. E. Tylee shows that it was not formally placed in the hands of James Tylee. It does not appear whether James Tylee was present when the deed to him was executed and acknowledged. The witness was of the impression that the execution of the deed to, and of the deed by him, were simultaneous acts. If each was executed on the day of its date, as must be presumed, inasmuch as each was acknowledged on the day of its date, and before different commissioners, the execution of the one was not simultaneous with that of the other, but a day intervened between the execution of the two.

The deed from James to Daniel E. Tylee, recites the giving of the deed by the latter and his wife to the former, that by it they granted, bargained, and sold to him all their interest and estate in the premises which it purports to have conveyed, and re-conveys them to Daniel E. Tylee, and implies, if not affirms, an assent to, and the acceptance of the deed so recited.

Presumptively, James Tylee must have had in his possession the deed executed to himself, in order to draw the deed which was, on the second day after the date of the first, executed by him.

According to the testimony of the same witness, the object of executing the deed by himself and wife to James Tylee was to have the title to the lots vested in himself, by a reconveyance to himself by James Tylee. That intention was carried into effect by the execution and acceptance of such reconvey

Dempsey v. Tylee.

ance. After such reconveyance, the deed to James Tylee would properly be in the actual custody of Daniel E. Tylee, as a muniment of his title. Under such circumstances, to hold the deed inoperative on the mere ground that it was never so delivered as to vest the title in James Tylee, more clear and positive proof that there was no delivery, and that it was so understood at the time, should be given, than is furnished by the testimony before us. (Souverbye v. Arden, 1 J Ch. R. 251-2; Scrugham v. Wood, 15 Wend. 545.)

The case before us differs from that of Jackson v. Phipps, 12 J. R. 413, in this, that in the latter the grantee was not informed of the execution of the deed, and of course did not assent to it, in the lifetime of the grantor. In the case before us, the grantee, if not present at its execution and acknowledgment, knew of it, assented to it, and acted on it within two days thereafter.

We do not feel authorized to hold that the deed to James Tylee was not delivered to him when it was executed, and that it was at the time so understood by the parties executing it. They severally acknowledged that they "executed the same as their respective voluntary act and deed for the uses and purposes therein mentioned," and the grantee immediately acted upon it as an operative deed.

The presumption that an intended and valid delivery was made, is not sufficiently overcome, to justify us in holding that it was never so delivered as to be valid and effectual between the parties. If the estate was vested in Daniel E. Tylee by the deeds of the 21st and 23d of August, 1822, then the defendants, Chastelain and Turner, have succeeded to it, by the conveyance made to them by D. E. Tylee on the 21st of March, 1846, unless it be true, as the counsel of the plaintiff insists, that D. E. Tylee and those claiming under him, are estopped by the deed of D. E. Tylee and wife to Morris, from denying that, at its date, the title was in Mrs. Tylee, and unless it is also true that the will of Mrs. Tylee in favor of her husband was unauthorized by law, and inoperative and void.

If the estate must be deemed to have been vested in Mrs. Tylee at the date of the deed to Morris, then the title was not subsequently vested in Daniel E. Tylee, unless the will of his

Dempsey v. Tylee.

wife, executed in 1840, is a due execution of a valid power of appointment.

As a mere will devising lands belonging to her in fee it would be clearly void. (2 R. S. 57, § 1:)

It is deemed to be well settled law, that a married woman cannot convey her real estate directly to her husband. There was in this case no ante-nuptial settlement or agreement, by the terms of which the wife was authorized to make an appointment. At the time the trust deed to Morris was executed she was a married woman, incapable of disinheriting her heirs by a devise of the lands, or by a conveyance of them directly to her husband. The conveyance to Morris, in trust for D. E. Tylee, in default of an appointment by the wife during her life, was, as to such trust, void. (R. S. Vol. i. 728. § 55 & § 49.)

To allow him to take directly under the trust deed, would contravene the rule, that the husband cannot take directly under a deed from his wife.

No person is capable of granting a power who is not at the same time capable of aliening some interest in the lands to which the power relates. (1 R. S. 732, § 75.)

If a married woman cannot convey directly to her husband, can she, by uniting with her husband in a conveyance to a third person, reserve a valid power to appoint to his use? Can she by such a proceeding confer upon herself power to do an act which the law declares her incompetent to perform, that is to say, the power to appoint it in favor of her husband.

A power is an authority to do some act in relation to lands, in the creation of estates therein, or of charges thereon, which the owner granting such power might himself lawfully perform. (1 R. S. 732, § 74.) Assuming the fee to have been in Mrs. Tylee, this case is one in which she has reserved the power to transfer the estate directly to her husband. She reserved such power, if her will is a due execution of a power reserved in the trust deed. She could not perform any act, the direct effect of which would be, if legal and valid, to vest the estate in her husband. If she could only reserve the power to do such acts as she might herself lawfully perform, then she could not D.-III.

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