KOLLS a. DE LEYER

KOLLS a. DE LEYER. Supreme Court, Second District/ General Term., March, 1864. Mabbied Woman.—Benefit to the Estate. — Covenants oe Title.—Defect of Pabties. A married woman is liable for a breach of the covenants of a deed which she has given. The covenants induce the purchase, enlarge the price, and thus benefit her estate. The power to use, grant, devise, and convey real property, conferred upon married women, includes by implication the power of giving the usual covenants for title. The joinder of unnecessary parties-defendant does not justify a demurrer for defect of parties. Appeal from an order overruling a demurrer to the complaint. This action was brought by Benedix F. Kolls against Margaretta De Leyer and Anthony De Leyer, to recover from the separate estate of Margaretta the sum of §111.79, the amount which plaintiff had be.en compelled to pay to redeem from a tax-sale real estate which the defendants had sold to him with covenants of warranty. The defendant Margaretta demurred to the complaint, setting forth twenty-one grounds of objection; among others, that there was no cause of action, and that there was a defect of parties-defendant. The demurrer was overruled by Mr. Justice Lott, and the defendant appealed. Francis Byrne, for the appellant. The supposed cause of action is sought to be enforced upon the personal covenant of the wife. Her “ personal engagement is void, as it always was by the rules of the common law.” (Yale a. Dederer, 18 N. Y. 265; 22 Ib., 450; Watkins a. Abrahams, 24 Ib., 72; Rose a. Bell, 38 Barb., 25; Dominick a. Michael, 4 Sandf., 374; Switzer a. Valentine, 4 Duer, 96; Noyes a. Blakeman, 6 N. Y. (2 Seld.), 567; Jackson a. Vanderheyden, 17 Johns., 167; Jaques a. Methodist Episcopal Church, Ib., 549; Carpenter a. Schermerhorn, 2 Barb. Ch., 314; Barton a. Beer, 35 Barb., 78.) The Act of 1849, 528, ch. 375, § 1, gives the power to take, hold, and convey, &c. No express contract was made in the deed, charging the separate estate of the defendant Margaretta. The separate estate, upon which the charge is claimed to have been made, or against which it is sought, is not described. The real estate, referred to in the complaint, ceased to be hers on the conveyance to plaintiff. (Rogers a. Ludlow, 3 Sandf. Ch., 104; Coon a. Brook, 21 Barb., 546.) George H. Fisher, for the respondent.—I. The only question óf importance is, whether, under the circumstances stated, an action lies to charge the remaining separate estate of the defendant, a married woman, with the damages which have resulted from the breach of warranty. The cases and the law are summed up in (Yale a. Dederer, 22 N. Y., 450), and the result may be stated in language used by the court: “ In order to create a charge, &c., on estate of married women, the intention to do so must be declared in the contract, or the consideration must be obtained for the direct benefit of the estate itself.” 1. In this case the contract is the warranty contained in the deed. The consideration was the consideration expressed in the deed. 2. No possible consideration could move more directly to the estate, for its benefit, than a consideration paid to the grantor for a conveyance of a portion of that estate. It is ohservable that this incumbrance was a tax; and it does not admit of doubt that the payment of a tax, lawfully imposed on an estate, or a portion of an estate, is for the benefit of that estate generally, or for the benefit of the whole estate. II. It is settled that the joinder of a defendant, more than is necessary, does not justify a demurrer. The “ defect of parties” spoken of in the Code, is a deficiency of parties. (Peabody a. Washington Mutual Insurance Co., 20 Barb., 339; Brownson. a. Gifford, 8 How. Pr., 389; New York & New Haven R. R. Co. a. Schuyler, 17 N. Y., 592; S. C., 7 Abbotts’ Pr., 41; Gregory a. Oaksmith, 12 How. Pr., 134; Philips a. Hagadon, Ib., 17; Manning a. State of Nicaragua, &c., Transit Co., 14 Ib., 517; Bowers a. Tallmadge, 16 Ib., 325.) [MAJORITY — By the Court.—Brown, J.] By the Court.—Brown, J. This is a demurrer to the plaintiff’s complaint. The causes of demurrer are very numerous, and all of them but one very frivolous. The defendant is a married woman, having a separate estate of her own. Prior to the 1st day of February, 1858, and since the passage of the acts in regard to married women, and giving them the right to acquire, hold, use, grant, and convey real property, the same as femes sole, she acquired by purchase a lot of ground in the twelfth ward in the city of Brooklyn, the title to which she held in fee in her own right. On the 15th day of February, in the same year, being so seized of the said lot of ground, she conveyed the same to the plaintiff by the usual deed of conveyance, with covenants of seizin, and that the same were free from incumbrances of every description. There has been a breach of the last of these covenants, the estate at the time being incumbered with certain taxes, which the grantee (the plaintiff) has been compelled to pay to save the estate from sale, &c. All these facts appear by the complaint. The question raised by the demurrer is, whether the duty, debt, or obligation created by the covenants in the deed were directly beneficial to' the estate of the grantor. This cannot be a debatable point. It is too plain, I think, for argument. The obvious effect of the covenants in a deed of conveyance is to assure the title and enlarge the purchase-money. Ko one doubts that the reason why the grantee demands, and the grantor makes these covenants, is to afford the former a complete indemnity to the extent of the purchase-money, should the title fail. This duty, assumed by the grantor under the contract, may be, and often is, the principal inducement to the purchase. It enlarges the purchase-money, and thus to an extent more or less is clearly for the benefit of the estate of the grantor. It may be said, although the remark is not necessary to the decision of the demurrer, that covenants of warranty, seizin, quiet enjoyment, are incident to, and usually attend upon, conveyances of real estate; and in the absence of all limitation and restraint upon the power of a married woman, the Legislature, when conferring the right to acquire, use, grant, devise, and convey real property in the same manner as femes sole, must have intended conveyances in the usual manner, and with the usual covenants, to assure-the title. The order overruling the demurrer should be affirmed, with costs. Present, Brown, P. J., Lora and ScrüQSam, JJ.