author: Judge Wood

text:
    J. Mulford and G. Albertson, Adm’rs of P. Tullis, deceased, v. A. Young, Adm’r of G. Wiley, deceased.
    •Contract of lease recites that in consideration of the rents hereinafter mentioned and agreed to be paid, lessor leases lessee a farm, and- stipulates that lessee may use timber for certain purposes, and may seed certain grounds, “in consideration whereof" the lessee agrees to pay certain rents. Plaintiff (lessor) must aver that the lessee enjoyed the premises, or that lessor tendered him the enjoyment. Without such averment, the declaration is bad.
    Recital — that by the contract declared on, the defendant acknowledged himself bound to pay one hundred and eighty dollars, to be paid at a time stated. The contract exhibited upon oyer stipulates to pay “ a yearly rent of sixty dollars." It is a fatal variance.

      Wife can not make a valid lease of her husbands lands.
    Where the contract of the wife may become obligatory by the ratification of the husband, it must be declared upon as the husband’s contract, without, reference to the wife.
    This cause was adjourned here for decision from the county of Pickaway. It ❖as an action of debt, and the declaration contained four counts. The first was in these words:
    “For that, whereas the said George Wiley, in his lifetime, to wit, on the 3d day of September, in the year of our Lord, 1819,. at Oircleville, in the county aforesaid, for and in consideration that the said Jonathan Tullis had before that time leased and to-farm let unto *him, the said George Wiley, by his certain [295 article of agreement with the said Wiley, hereinafter named, a certain tract of land therein described, he, the said Wiley, by the same-article of agreement, or writing obligatory, sealed with his seal, and now shown to the court here, the date whereof is the same day and year last aforesaid, acknowledged himself to be held and firmly bound to the said Jonathan Tullis, in his lifetime, in the sum of one hundred and eighty dollars, part and parcel, etc., to be paid to the said Jonathan Tullis, sixty dollars thereof on or before March 1, 1821; sixty dollars thereof on or before March 1, 1822, and sixty dollars on or before March 1, 1823.
    The second count recited that the defendant’s intestate,, “for and in consideration that Nancy Tullis, the then wife of the said Jonathan Tullis, had before that time leased and to farm let unto him, the said Wiley, by her certain articles of agreement with the said Wiley, hereafter named, a certain tract of land, he, the said Wiley, by the same articles of agreement, a writing obligatory to the coui’t here shown, the date whereof is on the same day and year aforesaid, acknowledged himself to be held and firmly bound to the said Nancy Tullis, who died in the lifetime of her husband, the said Jonathan Tullis, the said writing obligatory being reduced to the possession of the said Jonathan Tullis during the lifetime of the said Nancy Tullis and Jonathan Tullis, and duly ratified by the said Jonathan Tullis in his lifetime, in the other sum of two hundred dollars,” etc.
    , The third count is upon the same contract recited in the second, and is the same in terms, except that it omits to aver the ratification by the husband of the contract of the wife.

      The fourth count is for use and occupation, to which the plea of nil debet is put in.
    The defendant claimed oyer of the writings obligatory specified in the first, and in the second and third counts of the declaration, and demurred specially : 1. For that the writings declared on contain dependent covenants, and there is no averment of performance, or tender of, or readiness to perform on the part of the plaintiffs. 2. No action of debt can be sustained on said writings, they containing no acknowledgment of an existing debt.
    *The writing specified in the first count, or that part of it [296 which it is material to consider, is in these words: “Jonathan Tullís, in consideration of the rents hereinafter mentioned and agreed to be paid to him, hath letten to the said George Wiley all •the cleared land on the farm belonging to the said Jonathan-Tullís, situate and lying in Springfield township, Ross county.” The writing obligatory-then contains several stipulations, to wit: that the said Wiley may use sufficient timber to repair the fences; to have the liberty of seeding the land, and to use for his own benefit the large timber, etc., and then follows a clause of the agreement in these words: “ In consideration whereof, the said George Wiley agrees to pay the aforesaid yearly rent of sixty dollars;” ■and by another part of the agreement the said Wiley was to have the use of the ground for three years from March 1, 1820.
    The opinion of the court does not require that the contents of the other writing declared on in the second and third counts should be set out. The cause was adjourned here for a decision ■upon the demurrer.
    Olds, in support of the demurrer.
    Doan, contra,
    cited 1 Chit. Pl. 112-114; Reeves D. Rel. 130-132; Cro. Jas. 206; Doug. 83; 15 Johns. 479; 1 Chitty, 643; 2 Saund. 379, 380, n. 16; 1 Wils. 248; 1 New Rep. 43.
   Judge Wood

delivered the opinion of the court:

In respect to the first count, the defendant maintains that the -consideration of the undertaking on the part of his intestate is not letting merely, but, in addition, the actual enjoyment • of the premises leased, and hence he deduces the necessity of an averment that his intestate actually possessed and enjoyed the premises.

It is not difficult to suppose a case in which an agreement to lease, or an actual lease, may be predicated upon such circumstances, and expressed in such terms as that the contract itself, without possession or enjoyment, would constitute a good consideration for the covenant to pay rent. The case, however, is not of ordinary occurrence, and in our opinion this is not such a one. Ry the 297] terms of the agreement ^lessor stipulates that, in consideration of the agreement of the lessee to pay the rents specified, he-had leased the premises named with certain enumerated privileges, to take timber to repair the fences, to use the large timber for the lessee’s benefit, to have the liberty of seeding; then comes-the covenants of the lessee: “In consideration whereof, the said G-. Tull-is agrees to pay the aforesaid yearly rent.” Here is a clear expression for what consideration the rent was to be paid. It was for the enjoyment of the uses and benefits previously contracted for by the lessor, the enjoyment, the seeding, the timber. These are precedent to the covenant to pay rent, and expressly form the consideration for the rent to be paid. The fact of the enjoyment, or of the tender of the privilege to enjoy, made by the lessor to the lessee, ought to be averred in the declaration. This averment must be material, because the proof of the facts, at the trial, would be preliminary to the plaintiff’s right of recovery. In this particular the declaration is defective.

In the opinion of the court there is an objection to this count,, besides the omission of this averment. In describing the instrument declared on, the plaintiff avers that by the said article the-defendant “acknowledged himself to be held and firmly bound to the said Tullís, in his lifetime, in the sum of one hundred and eighty dollars, to be paid,” etc. The written agreement is, by oyer, made part of the pleadings. Upon examining it, the stipulation is in these words: “The said George Wiley, in consideration hereof, agrees to pay the aforesaid yearly rent of sixty dollars to the said George Tullís, at the times above limited for’payment.” Here is a- palpable misdescription of the writing upon which the declaration is founded — a fatal variance between the. obligation declared on and the one exhibited upon the demand of oyer. As the pleadings stand, this variance is presented by them, and furnishes a separate and distinct ground for sustaining the demurrer.

The second count is upon a contract of lease made by a married woman.' A married woman can not make a lease of her husband’s real estate; consequently, if the writing declared on is an operative lease, it is void. If we consider it a contract which the wife could make and the husband might ratify, it should be declared on as the contract of the husband. How it was made is a fact in pais, .to be proved at the trial. *In either aspect of the case the [298 count is bad, and the demurrer to it well taken.

There are the same objections to the third count that vitiate the second, with this, in addition, that the contract is alleged to have been made by the wife, and the husband’s ratification is not averred. A wife can not bind, her husband by a contract of this description, even if it be not a lease, without his ratification of such contract. The recital that the contract was made by the wife, without an averment of the husband’s ratification, does not make a case for the husband to reason upon.

The issue in fact on the fourth count, not having yet been tried, the cause is remanded for that purpose only. The demurrer to the three first counts is sustained.


source: Caselaw Access Project

author: Lane, J.,

license: Public Domain

text:
    John Brown v. Enos Manning and others.
    Dedication of lands for a public use accrues as a grant; a grantee is not necessary to its validity.
    A dedication in specific terms on the recorded plat of a town, is not to be affected by parol proof of the intention of the donors.
    Town plat made hy agent; his numbering of lots, laying out of streets, etc., recognized by the proprietors and acted upon by them, is sufficient proof of his authority.
    Individual owner of adjacent lots may proceed in equity to enjoin proprietors from making private appropriations of a square dedicated for public purposes.
    This is a suit in chancery reserved in the county.of Miami. The plaintiff is the owner of town lots Nos. 51 and 52, in the town of Piqua. The defendants are the heirs of Manning, who, with Caldwell, were the original proprietors of the land. In 1807 the town of Piqua was laid out by them, and a plat made, subscribed, and acknowledged by them, by their agent, A. Brandon, and recorded, Upon this map the lots are numbered, the streets named, field notes are appended, in which some of the lots are described as “ lying next the public squareand a piece of ground near the middle is mai’ked “P. Square." It is shown in proof that the proprietors have conveyed town lots, and have described some as “lying adjoining the public square,” and as “ numbered according to the recorded plat of the town in the recorder’s office.” The land has remained uninclosed, and used as a common until lately. The defendants are now asserting a title over the 299] ^property, have sold a part, and caused inclosures and buildings to be erected upon it. The object of this bill is to declare the title, and to cause the erections to be abated as nuisances.'
    The answers admit the proprietorship and laying out of the town; deny Brandon’s authority as agent; and aver that the ground in question was designed for the county buildings; that when all hope of placing the seat of justice in Piqua was destroyed, by the division of the county of Miami, they have entered and held possession, claiming title.
    Testimony is taken, which is noted below as far as necessary for decision.
    Crane and Schenck, for plaintiff:
    1. The original owner, John Manning, under whom the defendants claim, having laid out this square in Piqua, as a public square, recorded the town plat and sold building lots on the square, has thereby dedicated the same to the public. 22 Ohio L. 301; City of Cincinnati v. Lessees of Edward White, 6 Peters, 431. Brandon is proved to have been the agent for John Manning, and his acts as such have been repeatedly recognized by Manning. If the proceedings in relation to the town plat were not in strict •conformity to the law, though the defendants have not supported by proof this allegation in their answer, yet the acquiescence of Manning and his subsequent recognition of the acts of Brandon will preclude the defendants from setting up any claim to the public square. Pritchard v. Atkinson, 1 N. H. Cas. 1; 4 N. H. Cas. 420; Trenchard v. Price, 2 Mumf. 468.
    2. The complainant may maintain the suit; for the occupation of this square is not only a common or public nuisance, but works a special injury to the complainant, and affects the value and enjoyment of his property. Gardner v. Trustees of Newburg, 2 2 Johns. 162 ; Newburg Turnkike Co. v. Miller, 5 Johns. Ch. 101; Coming and others v. Lomazze, 6 Johns. Ch. 438 ; Attorney-General v. Nichol, 16 Ves. 338; 4 Ohio, 376; Mayo v. Marchie, 3 Mumf. 358.
    This ease is easily distinguished from that of Smith and others v. Comm’rs of Butler County, 6 Ohio, 101. There the complainants, alleging no individual injury, or if any, several *in- [300 juries, for which each of them had his remedy at law, sought to restrain the public agents of the county from leasing real property given for the erection of public buildings. In the present case, the right of the public to the use of the public square in Piqua'rests on the same principles as the right of the use of the streets. City of Cincinnati v. Lessees of White, 6 Peters, 431. The occupation of the square by the defendants materially affects the enjoyment and value of the property of the complainant. It is an obstruction which the defendants have no right to erect, and can not erect without those mischievous consequences, .which, upon equitable principles, should not only be compensated by damages, but prevented by injunction. Attorney-General v. Nichol, 16 Ves. 338.
    It is in strict analogy to the case of a commoner injured in his individual rights, and the right of complainant to maintain this suit is fully sustained by the case of Coming and others v. Lomazze, 6 Johns. Ch. 438. It is not one of those cases of “ rights purely public, which are to be enforced in the name of the state, or the officer intrusted with the conduct of public suits.” The complainant has an individual interest in this public square, acquired by purchase, and is not a mere volunteer to take charge of the public interest therein. The fee of this public square is vested in the county of Miami for the uses and purposes named and intended on the recorded plat of the town, and for no other use or purpose whatever. 22 Ohio L. 301. Shall the defendants, at this stage of the suit, abandoning the claim of the right which they have set up in their answer, admitting that they are trespassers on the public square, and that their tortious occupation works a special injury to the complainant, now object that the fee of the square has been conveyed to the county, and that the county commissioners only can restrain them from encroaching upon and occupying this public square ? Has the complainant no redress for the special injury he sustains by the tortious occupation of this public square, because the county commissioners may neglect to vindicate the-public interest? The complainant has assuredly, by his purchase of the, two lots on this public square, acquired an interest and right in all the advantages to be derived from its being maintained as a public square. His remedy, for tortious aggression upon the interests and rights thus acquired, can not depend upon the will of 301] the others. Such a dependence would ^destroy his right, for of what value is a right without a remedy for its enforcement? If the defendants intend to avail themselves of this objection, they ought, instead of setting up a claim, in their answer, to the public square, have demurred to the bill. Such an objection should receive no more countenance than one to the jurisdiction of the court. In a case in which the court had obviously no jurisdiction, the objection to the jurisdiction can never be made too late; but where it is doubtful, and the defendant, instead of demurring, has-answered in chief, it is too late, on the final hearing, to object to the jurisdiction. Wilson v. Cheshire, 1 McCord Ch. 233; Underhill v. Van Cortland, 2 Johns. Ch. 369.
    Grosvenor, for defendant:
    The principal question of fact to be settled in this cause is; did. Manning agree that in case the county seat was not located at Piqua, that he would give the square for a public common, or for any other purpose. The complainant alleges that he did make such agreement; and the defendants deny the obligation.
    I believe that no witness has sworn that he ever heard John Manning make such agreement, promise, or declaration. Mitchell comes the nearest to that point of any other; he says it was stated that the square was given for public purposes, and that if the county seat was not located at Piqua, the square was not to remain open, but to be leased for a seminary; witness is not positive that he ever heard Manning say this, but he heard Brandon say so.
    The abstract declaration of Brandon, who had no legal title in the land, but acting merely as a hired servant,-the surveyor and clerk of Manning, to write title papers for Manning to sign, could not pass the legal or equitable title from Manning.
    It appears to have been well understood at the time, that no title could be acquired from Brandon, but that the only legal title was in Manning, and he must have made or sanctioned such agreement, before any legal or equitable title could have passed; but there is no proof that Manning ever heard Brandon make such a declaration, and Manning himself appears never to have-made or sanctioned any such agreement or declaration, but, on the contrary, he steadily ^declared said square was for county [B02 buildings, and for no other purpose. It is apparent, from the-whole testimony, that the only inducement, for reserving the-square from sale, was for the purpose of leaving an eligible site-for the court-house and jail, and other county buildings; and the placing the county buildings on that square was the only consideration which Manning expected to receive for the ground, and the promise to give the ground for that purpose did not give any interest, either legal or equitable, to any individual. If any shadow of title was created by that promise, it was a conditional equitable interest in the county, and that condition not havingbeen complied with, Manning became again as much the legal and equitable owner of the ground as if no such promise or declaration had ever been made. The reference in the complainant’s deed to the public square, and its being so termed on the recorded plat, can only be considered as matter of description and •not as creating a title, nor is it to be considered public property, merely because the owner pleased to name it the public square. But if we were to admit that calling it the public square actually-made it public property, yet it would not convey any separate title, either legal or equitable, to the complainant. If any title to-said square did pass by the descriptive words used in the complainant’s deed, and in the recorded plat, it was to the county (for the town was not then incorporated), and that on the condition, that the county buildings should be erected on said square within a reasonable time.
    We contend that the complainant has no right to prosecute a suit against the defendants, to establish a right which can only exist in the county, or some other corporate body, and in which he has no separate interest; for if the complainant has this right,, every other citizen of the county or member of the corporation has the same right, and the door is opened for endless litigation, to the utter ruin of the defendants. 5 Ohio, 189, 204; 6 Ohio, 102; also, 4 Jacob’s Law Dic. 419, title Nuisance.
    The complainant alleges that the building of the defendants on said square is a common nuisance; and prays that the nuisance may be abated and perpetually enjoined. On this allegation and prayer of the complainant, he can have no relief in this court, for if his allegation be true, he has adequate remedy at law. 4 Jacob’s Law Die. 420, 421, title Nuisance. The complainant alleges that 303] Manning agreed *that if the county buildings should not be located on said square, then it should remain open as a public common. Were this allegation fully proved, he would have an adequate remedy at law, and not in this court. 1 Jacob’s Law Die. 517, title Common. With regard to the allegation that the defendants’ building on the square is a nuisance, the complainant is wholly unsustained by the testimony, for a decided majority of the witnesses concur in the opinion that the building is an advantage to the town, and that it would be advantageous to the general interests of the town to have the whole square built up.
    1 believe that no witness has sworn that said square, in any event, was to remain open for a public common, and the defendants positively deny the allegation; therefore, either in law or fact, the complainant has failed to make out the case.
   Lane, J.,

delivered the opinion of the court:

The subject .of appropriations for public purposes has of late been frequently under the consideration of courts in our country; and it is now well settled that where lands are dedicated by the owner to any lawful use, public, pious, or charitable, and are used for the object, and in the manner contemplated by the owner, it inures as’ a grant. The existence of a grantee is not essential to the validity of such dedication, nor is any particular form of words necessary to give it effect. If accepted and used by the public in the manner intended, it works an estoppel in pais, precluding the donor, and all claiming in his right, from asserting any ownership inconsistent with such use. Town of Pawlet v. Clarke, 9 Cranch, 292 ; McConnel v. Town of Lexington, 12 Wheat. 582; Beattie v. Kurtz, 2 Pet. 566; Cincinnati v. White, 6 Pet. 432; Rex v. Lloyd, 1 Camp. 262; Price v. M. E. Church, 4 Ohio, 547; Heirs of Reynolds v. Comm’rs of Stark, 5 Ohio, 204; McBride and Hueston, 6 Ohio, 101; Ladd v. Sheperd, 2 Str. 1004; Jarvis v. Dean, 3 Bing. 447.

It is not unusual for appropriations to be made for some purpose evidently public, where, from the want of certainty, it is difficult to learn the precise object. To ascertain this object, in this case, the parties attempt to discover the intention of the owners of the town. With this view, the plaintiff proves declarations by them that they intended to provide a site for a court-house, if 304] wanted, and, if not ^needed for that purpose, the square to remain open for the town; while the defendants attempt to prove that they designed, if no court-house should be erected upon it,, either to resume it or appropriate it to some seminary of learning. No such uncertainty rests on the case before us; for the acknowledgment and record of the town plat (which is the act of dedication, and which, by the operation of section 2 of the statute of 1805, for the recording of town plats [reprinted 22 Ohio Stat. 301], transfers the fee of the land to the county, and secures its use for the purposes designated on the plat), sufficiently defines the object of the grant; and no declarations or presumed intentions of donors can divert it to a different purpose.

It is clear that Brandon’s agency was authorized by the proprietors, for they have ratified it in various ways. They have adopted his numbers of the lots, they refer to his plat in their deeds as the “recorded town plat;” they bound some of the lots on the “ public square,” and the town has been occupied, in con- . fortuity with this plat, for twenty-five years. There is no higher evidence of the public appropriation of the streets and alleys of the town than of the square.

The present case is plainly different from any heretofore decided by this court. In Heirs of Reynolds v. Comm’rs of Stark, 5 Ohio, 204, the donation was for “county buildings.” In Smith v. Hueston et al., 6 Ohio, 101, the object of the donation was for “ public buildings for the inhabitants of the county of Butler.” By these grants estates were vested in the county as a municipal corporation, and became their absolute property. Here the land was set apart as a “public square; the use is raised and defined, ex vi terminorum, essentially for the benefit of the inhabitants of the towuj the due enjoyment of which will be secured by a court of chancery. 4 Ohio, 547 ; 5 Ohio, 204.

Objections are raised to administering this remedy, at tfie instance of these parties, and we are referred to the opinion of the-court in one of the above cases (6 Ohio, 102), in which it is said, that “ rights purely public are to be enforced in the name of the state or of its acknowledged agents>” In that case the injury, if ;any, was done to the county, which should be repaired in a suit in its name and at the .instance of the proper officers; but the remedy was denied to those plaintiffs because they were volunteers :305] only, having no ^individual interest. The judge, however, proceeds, in the report, to show that the bill could not be sustained under the well-established principles applicable to the case ¡before us, that one commoner may prefer his suit to sustain the common interest (2 Pet. 585; Mitford’s Pl. in Ch. 145; Ch. Cas. 272 ; Cooper’s Eq. 41; 1 Atk. 282) ; and that one creditor (2 Ves. 312; 28 Ves. 78; 2 Johns. Ch. 296; 6 Ohio, 112), one legatee (4 Johns. Ch. 619, 303 ; 3 Johns. Ch. 553; 3 Br. Ch. 229), or one of a great number interested, under peculiar circumstances, and, for ■convenience, representing the whole (6 Ves. 779; 11 Ves. 429; Prec. in Ch. 592; 12 Ves. 542), may litigate for the benefit of all. 'This bill is not skillfully drawn; yet it sufficiently appears that the plaintiff is one of the inhabitants of the town, living and holding property contiguous to the square, the value of which is .affected by the dedication. He is, therefore, not a volunteer assuming to protect the rights of others; but entitled to this remedy for the protection both of his individual and his common interests. ■Case remanded to the county, to settle the terms of the decree.


text:
    Thomas Nichols v. John Poulson.
    Plaintiff, on an appeal from a justice of the peace, is confined, in his evidence to the bill of particulars filed before the justice.
    The repeal of section 11 of the act incorporating medical societies, of February 26, 1824, making all contracts for services as a physician, not licensed, valid, does not revive the contract, and enable the plaintiff to recover for such services, after the repeal; such services being performed during the existence of the law.
    This cause was reserved in the county of Pickaway for decision in the court in bank.
    Judge Wood stated the case, and delivered the opinion of the -court:

      In this case a judgment was obtained against the plaintiff in error, by the defendant in error, before a justice of the peace, from which judgment an appeal was taken to the common pleas.
    In the common pleas the defendant in error filed his declaration in assumpsit for services rendered as a physician, and for board, for work and labor; for goods, wares, and merchandise; for money laid out and expended, and for money *had and [306 received, etc. To this declaration the plaintiff in error filed his plea of the general issue, with a notice of set-off. The cause was tried to a jury, and a verdict and judgment for the defendant in error.
    A bill of exceptions was taken by the plaintiff in error, on the trial, from which it appears that the plaintiff below called witnesses to prove services rendered by him as a physician for the defendant below, and boarding and lodging furnished the defendant below, and also an item for housekeeping. To this testimony the ■defendant objected, because the first three counts in the declaration, and under which the evidence was offered, contained no averment of any promise to pay, and were no counts, and no evidence could be received under them, which objections were overruled, and the evidence admitted.
    The bill of exceptions shows further, that when the suit was instituted before the justice, a bill of particulars was filed with the magistrate, and certified to the common pleas with the papers after the appeal; that this bill of particulars contained a charge only against the plaintiff in error for services rendered by the defendant in error as a physician; and that the defendant below objected to the evidence to prove the items for boarding and housekeeping, because they were not charged on the original bill of particulars before the magistrate, which objection was also overruled, and the evidence 'admitted.
    And the trial further progressing to the jury in the common pleas, the bill of exceptions shows that the services rendered by the plaintiff below, as a physician, were as a steam doctor, during the existence of the act of February 26, 1824, entitled “ an act to incorporate medical societies,” etc.; and that the plajntiff below did not prove himself, on the trial, to be authorized under that law to practice as a physician.
    The counsel for the defendant below then moved the court to instruct the jury that the plaintiff below could not recover for tha services rendered as a physician; but the court refused to give such instruction, but did instruct the jury that as the act of February 26th aforesaid had been repealed since the services were performed, the plaintiff below was, in law, entitled to recover. To all of which decisions the defendant below excepted, and has prosecuted this writ of error to reverse the judgment below.
    *The plaintiff has assigned for error :' 1. That the common
    pleas erred in admitting the testimony to prove the plaintiff’s below claim, under the first three counts of the declaration, these counts containing no promise to pay.
    We will dispose of the. errors assigned in their order as in progress. Counsel have mistaken this declaration; it contains one count only. The pleader has declared for that whereas the de'fendant was indebted to the plaintiff in the sum of seventy-five dollars, for the" work and labor, care and diligence, etc., of the plaintiff done, performed, etc., for the defendant at his special instance and request. Beginning a new paragraph, he again commences, and for that whereas, the defendant was indebted to the plaintiff in other seventy-five dollars, for meat drink, washing, and lodging, found and provided for the defendant at his special instance and request. There are several other distinct paragraphs, for other things, stated in the same manner. No promise, nor any breach, is pretended to be laid, until wo are near the close of the declaration. All these paragraphs put together make but one count, and although dressed up with a little too much verbiage, it is nevertheless, at this stage of the proceedings, a good count. If it were bad, however, it was no reason why the court should reject the testimony under it. They should, as they did, receive the evidence, and leave the party to his motion in arrest or writ of error-The court, then, did not err on this point in the case.
    The plaintiff has assigned for error, secondly: That the court, erred in permitting the plaintiff below to give in evidence, items of amount not contained in his original bill of particulars filed before the magistrate, and certified with the papers to the common pleas on the appeal. This question presents some difficulty; yet I can not say there is any difference of opinion in the members of the court.
    The act defining the duties of justices of the peace (sec, p. 24,175) provides, that in all cases before a justice of the peace, the plaintiff, his agent or attorney, shall file with such justice a bill of partieulars of his demand. To this bill of particulars, the plaintiff is confined, in his proof, on the trial before the magistrate, unless the justice should permit it to be amended. It is the plaintiff’s declaration, and it is the notice to the defendant of the cause of complaint against him. There is the same propriety in confining the plaintiff to his *bill of particulars before the magistrate, [808 that there is for confining the parties to their pleadings in a court of record ; that neither may be entrapped by any thing of which he has had no notice, and could not be prepared to meet.
    Section 42 of the same act provides that where an appeal shall be taken from a justice, the justice shall transmit the bill of particulars, the depositions, and all other original papers, if any were used on the trial before him, to the clerk of the court of cotnmon pleas. The inquiry may well be made, for what purpose is this bill of particulars required to be certified up to the common pleas, unless the plaintiff is to be confined to it on the trial ? The law does not intend to compel the performance of a vain, idle, or foolish thing, and this would certainly be such, if the plaintiff was not confined to it on the trial in the common pleas. The object of this statute was undoubtedly to confine the plaintiff to the same cause of action on the appeal thát he litigated below — and there is reason in this construction. It puts it out of the power of the plaintiff to commence his suit for one cause of action before the justice,, and to entrap a defendant, by proving another, as he might, in the common pleas, under a declaration containing the common counts in assumpsit, or in almost any other form of action. The court of common pleas may doubtless give leave to a plaintiff to amend his-bill of particulars certified up, but until amended the plaintiff is, confined to it by the clear intention of. this statute. The common-pleas, Ihen, erred in permitting the plaintiff below to- give evidence ftf “ boarding and housekeeping ” items not charged in his-bill of particulars.
    The third assignment for error is, that the court charged the jury, ss the law was repealed incorporating medical societies and prohib’ting persons without license from practicing physic, that the plainiff below might recover for services as a steam doctor,, render-id while that act was in force, although he was nota licensed physic un. Did the court err in giving this instruction to the jury? The force, effect, and validity of the provisions of the statute of February 26, 1824, “incorporating medical societies,” is, not denied. If it were controverted, it is fully settled by this court in 4 Ohio, 309-311, that this act, depriving others then not members of medical societies,'nor licensed, from the aid of the law in the collection of their debts, making such contract void, SOU] and imposing a fine for practicing for pay, is a constitutional and valid enactment. The mnly question arising here is, whether the repeal of this statute revives a contract or liability to pay for services, which contract or liability was null and void by the express provision of this statute, when the services were performed. There is, there can be, no doubt that a void contract is never revived: and, certainly, not without an express provision to that effect, which this act does not contain. This claim, then, for services as a steam doctor, performed while the act to which I have referred was in force, was null and void by the provisions of that law, and the claim was not revived by its repeal. In an action on a contract, that contract is to be decided by the laws in force at the time such contract was made. The court below, therefore, erred in their instructions to the jury, that the law being repealed, the plaintiff’s claim was revived, and that he was entitled to recover.
    The fourth assignment, and the fifth, which only remain, are •the same in.substance as the third and first, and are disposed of in •our remarks on those points.
    Another exception was taken on the trial, as shown by the bill •of exceptions, that the court were asked to instruct the jury that .the plaintiff could not recover below because he had not given «evidence on the trial that he was a licensed physician — which the «court refused. This decision is not assigned for error, nor is it •necessary to be stated.
    The judgment is reversed, and the cause remanded to the court •of common pleas to be reinstated on their docket, and proceeded in as that court shall be advised.
    J. Olds, for plaintiff in error.
    Irvin and Caldwell, for defendant in error.


author: Judge Wright

text:
    *McCoy’s Administrators v. Bixbee’s Administrators.
    Covenant to convey a tract of land, specifying no time of conveyance, and a covenant to pay therefor so much money in hand, and so much at a futura day, are mutual covenants.
    In such case the purchaser can not have a cause of action, without averring the payment or tender of the purchase money.
    This case was reserved here for decision in the county of Delaware. The declaration was in covenant .upon an article of agreement, dated August 12, 1811, by which Bixbee, for and in consideration of (McCoy’s) covenants thereinafter contained, covenanted to execute and deliver to McCoy a good deed for one hundred and twelve acres of land, without fixing any time for the conveyance; and McCoy covenanted to pay therefor seven hundred and eighty-four dollars, as follows: three hundred and ninety-two dollars on demand, and the balance of three hundred and ninety-two dollars in five years from the date, with interest after eighteen months until paid.
    The first count in the declaration avers a general performance by the plaintiffs’ intestate, and assigns for breach the non-execution of the deed by Bixbee.
    The second avers the plaintiffs’ request for the deed, and the defendants’ refusal.
    The third describes the covenant to convey on request, and avers a request and refusal.
    The fourth describes the covenant as one to convey in a reasonable time, which elapsed before May 1, 1830; that a third person then held the legal title, and assigns for breach the non-conveyance.
    The article is set out on- oyer, and the defendants demur generally to these four counts of the declaration, which is joined.
    G. Swan, for the defendants:
    Insisted that the covenants were mutual and dependent, or that in any event the payment of one-half the purchase money, and the delivery of the deed, are simultaneous acts, and neither party can recover in such eases without averring performance, or an offer to perform, or making excuse for the non performanee. 1 Salk. 112; Doug. 691; 4 Term, 125; 1 Saund. 320, n. 4; 2 Bibb, 614; 3 Bibb, 290; 15 Mass. 500; 10 Johns. 203; 1 Ohio, 341; 5 Lit. 66; 6 Monroe, 361; 2 Johns. 145; 8 Mod. 68, 381; 2 H. Blk. 123.
    P. B. Wilcox, for the plaintiff:
    *The question is, at what time was Bixbee legally bound to execute the deed to McCoy? Was it a reasonable time after the contract was made, or upon the payment of the first installment, due on demand, or the second installment, due in five years ?
    No specific day is named in the contract. No mention is made of any event or contingency, upon the happening or not happening of which the conveyance is to be made, such as “ upon payment,” or “as soon as paid,” or “when paid,” etc., which ordinarily occur in contracts of this kind. The deed is evidently to be mad® at some, future period, which period is not designated, either by day, month, or year, nor by any future contingency. It would seem, therefore, that this case must come within the rule, that whore no time is fixed by the parties, the law will fix it for them, namely, a reasonable time after the execution of the contract; which reasonable time, the fourth count alleges, and the demurrer admits, has elapsed. Is not this the only question in the case?
    The defendants’' argument assumes that these are concurrent acts, to be performed by both parties. What are these concurrent acts ? Bixbee covenants to make a deed at some indefinite period. McCoy covenants to pay three hundred and ninety-two dollars on demand (which is a time certain, because it can be rendered certain by the party), and three hundred and ninety-two dollars in five years. Now, at what point of time is this concurrency of acts to take place? The defendants’ counsel seem to think it should be on the payment of the first three hundred and ninety-two dollars. The only objection to this is, that the contract does not say so, nor anything else authorizing such an inference. The first payment is to be made on demand, i. e., at the convenience of Bixbee, but the contract does not say that the deed may likewise be made at his convenience. The second payment is at the expiration of five years. What is there in the contract that looks to the time when the deed is to be made ? It is true that abstractly the vendor is presumed to intend to hold the title, until he receives the purchase money, but must not such intention appear, or rather the contrary not appear, on the face of the contract. In the present case, Bixbee “for and in consideration of the said McCoy’s covenants and agreements hereinafter contained,” bound himself to convey, etc. If these words mean anything, Bixbe^ did not intend to rely upon the land as security, but upon the “agreements and covenants ” of McCoy. These *words may be [812 technical or mere words of course, but in the absence of all others of an opposite character, is it not reasonable to give them their appropriate meaning?
    The last clause of the first rule, 1 Saund. 320, n. 4, and page 4 of the note, seems to be applicable. The rule is, “ if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such act, before performance ; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent;' and so it is where no time is fixed for performance of that, which is the consideration of the money or other act.”
    Upon this principle, McCoy’s right of action was perfect, after the lap.se of a reasonable time for the execution of the deed, and Bixbee’s right of action was perfect for the first installment whenever he chose to enforce it, and for the last installment at the expiration of the five years.
   Judge Wright

delivered the opinion of the court:

The points raised by the demurrer make it necessary for us to construe the covenant between these parties. Bixbee, in consideration of McCoy’s undertaking to pay him for a tract of land, covenanted to convey him the land, without mentioning any time for the bonveyance. McCoy stipulated to pay one-half the purchase money on demand, and the remainder in five years, with interest after eighteen months. The common sense construction of this contract, in the opinion of the court, is the legal one. Bixbee did not manifest a clear intention to convey away his land to another, and rely upon the mere promise of the person he conveyed to to pay him for it. Such a contract, or intention, would be so manifestly against his interests, and the common and usual mode of selling land on credit, that the presumption is against it, and clear expressions are required to authorize such a construction. The consideration of the covenant to convey, is said to be the promise to pay by McCoy. We think this too narrow a construction. The performance by McCoy of his covenants, the payment of the money, was the only real, substantial consideration of the promise to convey by Bixbee. To determine otherwise seems to us the substitution of the shadow 313] *for the substance. Mere words should be construed according to the evident intention of the parties using them. 1 Ohio, 341; 4 Ohio, 593. Why did these parties omit to fix the time for making the deed ? Evidently in order to entitle McCoy to the deed whenever he paid his money. He had the option of a credit of the whole purchase for five years unless Bixbee demanded one-half of it before. It would be unreasonable to construe this so as to compel Bixbee to convey away his land without being paid for it, and to rely upon the mere promise of his grantee to pay; and being unreasonable, we can not suppose it was his intention so to contract. As we understand the law applicable to such contracts, it gives no force to technical constructions when opposed to the intention of the parties.

It follows from our opinion that if McCoy, the plaintiff, would show a good’ title to sue on the covenant of Bixbee, he must aver either that he has paid the money, or that he has tendered, and is ready and willing to pay. That is the condition of the contract upon which the right to sue depends. The absence of such averment, in either count of the declaration, is a fatal objection. The demurrer is sustained.


author: Judge Lane

text:
    John G. Worthington’s Lessee v. Philip Young.
    Lease for life by husband and wife of the wife’s estate, not acknowledged by the wife as the statute requires, is not available against the wife after the death of the husband.
    This cause was adjourned from the Supreme Court, in the county of Hamilton. It came up on a motion for a new trial. The suit was in ejectment for part of in-lot No. 89, in the city of Cincinnati. The case was submitted to the jury upon the following facts agreed, and the opinion of the court thereon;

      It was admitted that Seth Cutter was formerly the owner of the lot, and that he died in possession previous to the year 1812; that soon after his death that part óf the lot in dispute, with adjoining property, was set off to his widow, Ann Cutter, for her dower, who soon after married Maxwell Hargraves, *from [314 whom both parties claim title. The plaintiff gave in evidence:
    1. A deed from Hargraves and wife to Samuel R. Miller, dated July 26, 1831, including the property in question, and adjoining property.
    2. A deed from Samuel R. Miller to the lessor of the plaintiff, and H. G. Phillips and D. Gwynno, dated November 20, 1831.
    3. A deed from Phillips to Worthington, including the premises in question, dated February 11, 1832, and adjoining property.
    4. A deed from Gwynne to Worthington, including the premises in dispute, dated February 11, 1832.
    It was proved that Hargraves died on some of the first days of February, 1833. It was admitted the defendant was in possession. This was all the evidence on the part of the plaintiff.
    The defendant gave in evidence a lease made by Hargraves and wife to himself, for the premises in question, dated April 26,1816, not acknowledged. It was also admitted that the lessor of the plaintiff had received rent of the defendant for the ]iremises,as by receipts dated June 13, August 7, and November 21,1832, and January 21, 1833, which were admitted to be his handwriting. It was admitted that Mrs. Hargraves was still living.
    Upon this evidence the'jury returned a verdict for the plaintiff, subject to the opinion of the court whether he is entitled to recover.
    If tho court should be of opinion that plaintiff is entitled to recover, then judgment is to be entered on the verdict; if not, then the verdict is to be set aside and judgment entered for the defendant.
    The charge of the court and the verdict of the jury was in favor of the plaintiff. The defendant moved for a new trial.
    N. Wright and Fox, in support of the motion:
    This is an action of ejectment brought for a part of lot No. 89, in Cincinnati. On trial before the jury, the plaintiff gave in evidence the following facts: That Cutter died in possession in 1806, leaving his widow, since the wife of Hargraves, to whom the lot, 315] with adjoining property, was soon after assigned *for dower, and both parlies claim title under her; a deed from Hargraves and wife to S. E. Miller, dated July 26, 1831, including the lot in question, with adjoining property; and from Miller to Phillips and Gwytme, dated November 20, 1831; deeds from Phillips and Gwynne to the lessor of plaintiff, dated February 11, 1832; that Hargraves died some of the first days of February, 1833, and that defendant has been in possession since his lease. All these deeds are part of the case.
    The defendant proved his lease from Hargraves and wife, dated April 26, 1816, which is part of the case; and that defendant continued to pay rents to Miller and his assigns up to January, 1833; and that Hargraves’ wile is still living. On which proof, on suggestion of the court, the jury returned a verdict for plaintiff, subject to the opinion of the court on the above titles.
    The case turns on the legal effect of the lease from Hargraves and wife to the defendant of April 26, 1816. This lease is executed by the husband and wife, under seal, with two witnesses, but not acknowledged ; is for the life of the wife for a rent of one hundred and fifty dollars per annum, payable quarterly. If this lease is sufficient as a defense in ejectment, under the circumstances of the ease, the defendant is entitled to judgment.
    For the defendant we maintain that this lease, under the statute then in force (independent of the question of coverturo), is a valid lease at law without acknowledgment, that statute not including leases; that the lease, therefore, is left to operate as at common law; that at common law, a lease by the husband and wife of the wife’s property, under seal, is voidable only, that is, valid until it' is avoided ; that the right to avoid is a personal privilege, to be exercised only by the wife and her heirs, and not by her grantee; that the present plaintiff, therefore, can not avoid the lease, and the wife having done no act of avoidance, it is still valid; and not only so, the wife having conveyed all her interest in the property, and thereby put it out of her power to avoid, the lease has becomo utterly unavoidable.
    It is a case, if we mistake not, peculiarly susceptible of demonstration. We shall briefly state the several propositions on which it rests, and if they are distinctly understood, we do not see how the conclusion can be avoided.
    *1. In the first place, we say the statute of February 14, 1805,1 Chase’s Stat. 484, in force when the lease was made, does not include leases. In Bisbee’s Lessees v. Hall, 3 Ohio, 465, this court so decided; and such, we believe, was the uniform understanding and practice under that statute. So general was the usage under it that after the decisions on the subsequent statutes, that acknowledgment was necessary, the legislature found it necessary to pass a law to dispense with the acknowledgment upon short leases.
    This construction of the statute of 1805 is very obvious. Section 1 provides that “all deeds for the conveyance of lands, tenements, and hereditaments,” etc. Every lawyer who has read Blackstone knows that these terms do not include a lease. So, also in section 2 : “When husband and wife shall incline to dispose of and convey the estate of the wife, or her right in or to any lands, tenements, or hereditaments” etc., using the same language, applicable only to a conveyance of a freehold. The words “ lease, release,” introduced among the forms of deeds, can only refer to the ordinary conveyance by lease and release, for they are followed by the words, “for the lands, tenements, and hereditaments intended to be conveyed,” all uniting to show that this description of property only was the subject of the legislation.
    The position was once taken that this is not a lease, inasmuch as it runs for the life of the lessor. ' This is entirely untenable. A lease in common parlance, and in legislative language, as well as in legal phrase, is a contract for the possession of lands. So is this; it creates the relation of landlord and tenant, and leaves a legal estate in the premises in the lessor, that is, a rent issuing out of the property; it is subject to be determined by forfeiture for the ordinary causes, which would leave the entire estate in the lessor. These are palpable and unequivocal distinctions between' this and a conveyance of the freehold. 1 Paige Ch. 414.
    If it were necessary we might go further, and show that this lease, even if it were within the statute of 1805,-would still be a sufficient defense. If such were the construction, then the result would be that a lease, acknowledged under the statute, would be utterly unavoidable; but if not so acknowledged, then we must go to the common law to ascertain the effect of it, that is, to ascertain whether it is utterly void, or voidable only. By statute 32, Henry Till, c. 28, 4 Bac. 18, a similar provision is [317 made, by which leases of the property of married women may be made absolute and unavoidable; and still it is held that leases not executed according to that statute are still voidable only, as at common law. So, here, if the statute included a lease, still a lease not within the statute must be obligatory to some extent. The statute makes them unavoidable; without the statute they could not be utterly void, but voidable only. The consequence would be that on such a lease, though we might not bo able to recover in ejectment, still where possession was taken under it, rent paid, etc., it would be a sufficient defense to protect the possession until avoided. 1 Ohio, 253 ; 3 Id. 296, 298 ; 6 Pet. 441. It is not necessary to follow out this point in detail.
    2. The next position is, that at common law, the lease in question being by the husband and wife, under their seals, is not merely void, but voidable only; that is, is capable of confirmation, and is valid until'avoided by some positive act. So the law is laid down in all the books, and we find no case which holds the contrary. Whether the lease of the husband alone of the wife’s property, and whether their joint lease without deed are valid till avoided, are disputed questions; the former now pretty well settled in the negative. But those are different questions; as the law now is, a lease by deed, signed by both, is voidable only, and will be confirmed after the husband’s death by acceptance of rent by the wife, accepting fealty, bringing an action of waste, etc. 4 Bac. 13-15; Dyer, 916, 159 a. And this both before and since statute 32, Henry VIII, c. 28, Nov’s Max. 69. In Goodright v. Straphan, 1 Cowp. 201, Lord Mansfield so states the law distinctly, though he held that a mortgage in form of a lease was void 1 Doug. 53; Cro. Eliz. 112; Westcott’s case, 2 Co. 60. So, also, in Doe v. Welles, 7 Durnf. & E. 474, Lord Kenyon states the law the same. 4 Dane’s Abr. 330, c. 115, a, s. 26-28. And it is the same whether the lease be for life or for years. 3 Saund. 180, n. 9; 1 Rop. Prop. 89; 2 Com: Dig. 227; Baron and Feme, R. G. 3, s. 1. See 2 Thos. Coke, 507, *433; 4 Cruise, 64*, 87. 1 Rop. Prop. 89, etc.', states the law fully on these points.
    Some of the reasons for this principle are that the wife’s estate may be Teased on more advantageous terms, and she may have the more full enjoyment of it. If the lease is merely void, it is 318] void as to all parties, and no rents can be Recovered upon it. In cise of the husband’s death, the rents in arrear would go to-the administrator of tho husband, and so also would those accruing alter, until eviction by the wife. .The wife is fully protected by the power of avoiding the lease; but an incapacity of making a lease of any effect, so far from protecting her, would be ruinous to her interest. 3 Kent Com. 193; 3 Burr. 1806.
    The case of Jackson v. Halloway, 7 Johns. 81, has been cited as containing a different doctrine. This was a lease by the husband only, and so not touching this ease.
    It will be recollected that prior to the statute of 32 Henry Till, the lease of husband and wife of wife’s lands was voidable only; the instrument was good as a conveyance until avoided. The object of that statute was to make those leases which before wore voidable unavoidable, provided they were executed according to the provisions of that act. It had no operation on leases which were not made pursuant to that statute. Hence, it was always agreed that leases executed after the passage of that act, if the lease by reason of any defect was held void as a statutable lease, still it was supported as a common law conveyance. 4 Bac. Abr. 13; 2 Saund. 18 a; 2 Rep. 616.
    3. The next position is, that the lease, being voidable only, remains valid until avoided by the wife or her heirs, and can not be avoided by her assigns. The right to avoid is personal privilege designed for the special protection of the person under the disability resting in her sole election, and not transferable by grant. It is so in the very nature of the case, and is a familiar and well-settled principle. 2 Kent Com. 194; 4 Bac. 16; 3 Bac. 607; 1 Rop. Prop. 90; Tan Bramer v. Cooper, 2 Johns. 279; Hartness v. Thompson, 5 Johns. 161; Oliver v. Houdlet, 13 Mass 239; 2 Mad. Ch. 560. The cases and the reasoning referred to under the next point also establish this position. With reference'to the confirmation of a voidable contract, see Drake’s Lessee v. Ramsay, 2 Ohio, 253.
    4. We will introduce here another position which arises out of the preceding, serving to illustrate and confirm it. After the wife has parted with all her interest in the premises, she can not avoid her lease, because she has no interest, and her grantee can not avoid it, for the reasons above stated; and, therefore, by such act of alienation, her lease becomes ^unavoidable. This is [319 clear from the reason of the case, and so the law is laid down in the books. As in 1 Rop. on Prop. 90, a joint lease by husband and wife will be confirmed by their joining in a fine to a stranger, and. this of' necessity, as the wife eould not exercise her election after the fine, and the right could not pass to the connusee. 4 Bac. 16. The same would be the effect of a conveyance by the wife after the husband’s death, if made before an election to avoid' the lease. So, also, if the husband dies, and before an election to avoid the lease she marries again, acceptance of rent by the second husband renders the lease unavoidable. This seems to rest, in part at least, upon the reason that by the second marriage, which is her free voluntary act while discovert, she has vested an interost in another, putting it, for the time at least, out of her own power to avoid. 4 Bac. 16, 17; Cro. Eliz. 152; 2 Com. Dig. 228; Bar. and Feme, s. 3.
    It will be kept in mind that our deeds by husband and wife, with the statute separate examination, are equivalent to the fine in England ; and, therefore, the conveyance to Miller, in the present case, is precisely the case of alienation by fine mentioned above.
    Apply the foregoing principles to the present case. The lease to Young, of 1816, was a valid lease, until avoided; it can not be avoided by any act of the grantee of the wife, nor even by the wife herself after parting with her interest; it therefore still remains valid, and is a good defense in this suit, unless there is some act of the wife amounting to an avoidance.
    5. It therefore only remains to inquire whether anything has been done by the wife amounting in law to an act of avoidance.
    1. And first, we contend that the wife during coverture can do no act in pais avoiding the joint lease of herself and husband. What she may do in court, by suit or otherwise, is not now to be considered. Out of court, the wife, without the husband, can do no act relating to her estate, which is not at least voidable; an act making void a voidable deed, ex vi termini, is an act in itself absolute and unavoidable, making certain and absolute a matter which was uncertain and contingent before. The act of avoidance, therefore, can not be itself avoidable. The adjudication of a court upon the election of the wife would be conclusive, and on this 320] principle *rests the validity of a fine; but the election of the wife, out oí court, would of itself be nugatory, because merely a voidable act; and therefore the separate act of the wife in pais, during coverture, would not avoid the lease.
    But again even, if the wife alone could avoid it, still the husband and wne jointly could not. So far as relates to the husband, the lease is undoubtedly valid and binds the estate during his life. He therefore can. not avoid it; and any act by which he and the wife should, unite to avoid it, is clearly void as to him; if so, it can not be valid as to the wife. The husband and wife are one person in law, and their joint acts can not have a separate and opposite effect as relates to each other. She could not even act in relation to her estate separate from her husband ; it requires both to make a valid act, not both acting separately upon their separate interests, but both uniting as one person. Zanch v. Parsons, 3 Burr. 1808; Baxter v. Smith, 6 Bin. 429; 2 Rop. Prop. 108. A wife may purchase, and such an act is voidable only ; yet she can not avoid it during coverture, though the husband may, if he has not assented to it. 1 Thos. Coke, 153; 4 Cruise 21, 25; 2 Thos. Coke, 252. A guardian, who has assented to a purchase by his ward, can not avoid it, though the ward may, after coming of age. Oliver v. Houdlet, 13 Mass. 239.
    2. The only act which is.claimed to be an act of avoidance by the wife is the deed to Miller. This deed, so far from being an act of avoidance, is clearly an act of affirmance. It will be kept in mind that this deed is duly executed under the statute to bind the wife ; and therefore is valid according to its legal purport, as against her estate. Though the husband.and wife could not by such a deed avoid the lease, because the husband was absolutely bound by it, still they could confirm it, and make it unavoidable, as they could by the common law have confirmed it by levying a fine.
    Let any man read this deed as it would be read by ordinary men, and understood by a plain dealer in a fair transaction. It will be kept in mind that it covers property adjoining that now in question ; different tenants were in quiet enjoyment under their respective leases from the grantors; and paying their rents. The deed recites these tenants by name, the defendant among others, refers to them as tenants, intimates no designio disturb them, but, on the contrary, expressly “reserves their legal rights.” Would any plain man or woman ^suppose, that by such language [321 they were canceling the leases they had previously given, and conferring the power to turn out the very tenants they seem so cautious to protect? And if such is the legal effect, is it not obviously a triumph of skill over inexperience ? But is not the legal construction the same as the common sense one ? The legal rights of the tenants are reserved. What were the legal rights of Toung? Why, clearly to occupy under his lease, until the wife by some legal act should avoid it. And could the deed in the very language which saved that right put an end to it? This would make the paper speak nonsense. We are willing to concedo, for the present; argument, that one deed, under proper circumstances, may be an act of avoidance of a prior one, but it must be clearly so intended ; the two deeds must be such as can not stand together. In this case no such intention is indicated, but directly the contrary. It wobld have been the easiest thing possible to express, in so many words, such an intention;- but it is not intimated. .The two deeds also stand together with perfect consistency. The deed to Miller is appropriate to pass both that part of the ground not under lease, and the rents, with all the interest of the lessors in such as was under lease. There is not the semblance of incongruity. The bare recital of the tenancy in the deed, without gainsaying it, is a clear recognition of the lease ; the grantee, by the very act of taking such a deed, takes the tenants as they are; and still it is contended, by so doing, that tenancy was ended.
    The case of Jackson v. Carpenter, 11 Johns. 539, 559, has been referred to. That case itself shows the correctness of the above positions. It is put (page 601) entirely on the ground of intention. Both deeds were in fee, and could not stand together.
    Again, the receipt of rents by Miller, and his assigns from Young, after the deed, not only shows that the deed was not an act of avoidance, was not so intended or understood, but it is of itself an act of affirmance of the lease by the grantees themsolves. After thus receiving the rents and assuming the attitude of a landlord toward Young, they could never avoid the lease, even if it was avoidable by them. Not only so, but even if the lease was utterly void as the act of a married woman, and if the statute required it to be acknowledged, still the acceptance of rent under it by Miller and his assigns, constituting the relation of landlord 822] and tenant, ejectment *could not be maintained until notice to quit, or some act determining the tendency.
    The lease is dated April 26, 1816, and reserves a yearly rent. Hargraves died about February 1, 1833; the rent was paid up to January 21, 1833. Was not this acceptance of the rent for part of the year a confirmation of the lease for the whole of that year ? Could the plaintiff divide the contract, which was for a year, by putting an end to it before the expiration of the year? We suppose not. And yet we find that the defendant is served with, a declaration in ejectment on April 10, 1833, which was sixteen days before the expiration of that year in which the plaintiff had received three quarters rent.
    The doctrine of notice, therefore, applies peculiarly to this case. If a tenant for life lease lands, and die, the lease of course is valid as to the remainder-man ; yet if the remainder-man receive rent, although the reception of rent (the lease being void) will not be a confirmation of the lease, yet it will be sufficient to establish a tenancy from year to year, and notice to quit will be necessary. Adams on Eject. 108. So of a lease void by the statute of frauds and perjuries, payment of rent, although it will not establish the lease, yet the receipt of it will create a tenancy from year to year. Adams on Eject. 108; 2 Cow. 660. So where the party comes into possession under a lease invalid for any other reasons, it will be good as a tenancy from year to year, and require notice. Adams on Eject. 108, 109; 9 Serg. & R. 87.
    Now, if the act of transfer of Hargraves and wife to Miller could be considered as a disaffirmance of the lease, as is contended by plaintiff, the subsequent receipt of rent created the tenancy from year to year. If that act was not a disaffirmance of the lease, if the lease was only voidable, then the mere death of Hargraves could not of itself avoid it. Some act of Worthington was necessary to show his intention to avoid, and hence notice to quit was indispensable previous to the bringing the suit.
    Admitting the right of election to have been transferred by Hargraves and wife to Miller, and by Miller to Phillips and G-wynne and lessor of plaintiff, and that at and before Hargraves’ death, it was vested in lessor of plaintiff, the act of receiving rent for part of a year was the recognition of a contract for the occupation of the whole of the year. “The *momentthe tenant [323 is suffered by the landlord to enter on the possession of a new year, there is a tacit renovation of the contract for another year; and notice must be given.” 4 Kent, 112; Adams on Eject. 114. The whole doctrine of notice is laid down in Kent with his usual clearness and discrimination.
    It will be remarked that Worthington was under no legal disability of making a contract with Young. Admitting he had the right to avoid the lease at the death of Hargraves, his accepting rent on account of the accruing year was an election to have it continue at least for the year. He stands, therefore, in a very different situation to what Mrs. Hargraves would have stood had she retained the estate.
    If, then, this was a contract from year to year, a notice to quit must have been given previous to suit brought, and it must have been a reasonable one. 4 Kent, 112, 113, n. d; 2 Pick. 71. If notice is necessary, therefore, as there was no pretense of notice having been given, judgment must be for defendant.
    But again, if the act of plaintiff’s lessor, in receiving rent for part of a year, is evidence of a contract from year to year, as the books say it is, then it is perfectly immaterial about the giving of notice, for the law would not suffer Mr. Worthington to recover possession until the expiration of the term, which could not have taken place until the 26th April; and yet the demise is laid on March 1, 1833, and declaration served April 10, 1833, so that it is impossible for the plaintiff to recover.
    We contend, further, that the law will not permit any person claiming under Maxwell Hargraves to recover against this lease. It is very certain that Maxwell Hargraves could not have recovered during his life. The deed being only for a leasehold estate, neither witnesses nor acknowledgment was necessary. 3 Ohio, 465. If, then, Hargraves could not have "recovered, could he do any act to enable another to recover? It will not be contended, however, that Hargraves could have recovered, but it will be insisted Mrs. Hargraves could have avoided the lease after his death, and that she having passed her title, her grantee can do the same. But is this so? Can the present plaintiff recover at all without claiming under Hargraves? It is very clear he can not. Mrs. Hargraves’ deed to Miller was a perfect nullity without the assent 324] and concurrence of Hargraves, the husband. It is the *joint deed of husband and wife, and was perfectly void,.as a statutory deed, without their both joining. If, then, the plaintiff claims under the deed from Hargraves, he is estopped from claiming against Hargraves’ deed. He can claim nothing which Hargraves could not claim.
    We are not now discussing the power of Mrs. Hargraves to avoid the deed after Hargraves’ death ; that question does not now arise, because sho has done nothing since her husband’s death to avoid or confirm the deed. The rights of the plaintiff depend upon the efficacy of the joint deed of Hargraves and wife, and we say, if Hargraves was estopped by the former lease, his grantee stands in no better situation. The error of the plaintiff consists in their assumption that they are claiming only under Mrs. Hargraves, and in the supposition that the rights she would have had to avoid the lease are transferred to them. They can not get along, however, without claiming under Hargraves ; and if they had claimed under him alone, they would admit they could not recover. The plaintiff is now claiming directly contrary to the deed of his grantor. Where a party is estopped by his deed, all persons claiming under him are also estopped. 7 Conn. 212. If we are correct in claiming'that the present plaintiff can not recover unless Maxwell Hargraves could have recovered, then we consider it well settled that no man can be permitted to recover contrary to his own grant. 12 Johns. 204; 1 Johns. Cas. 90; 1 Ohio, 412.
    We do not contend that Mrs. Hargraves, or any other married woman, can be estopped because she is not capable of making a contract which will estop her, but the husband is under no disability; and when the plaintiff can not show title without claiming under one who is affected by an estoppel, his title is bad.
    Again : if the lease was voidable only at common law, but was within the statute of 1805, so that acknowledgment was necessary it would still stand as a valid lease in equity until avoided by the wife; and possession being held under it, and rents accepted, most clearly the tenant can not be dispossessed, at least without-notice.
    We can not perceive any view of this case-by which this lease can be valid between the date of the conveyance to Miller and the death of the husband, which will not make it valid to the present time. That deed was the joint and valid *act both of the [325 husband and wife considered as one person, necessarily operating the same way as to the interests of both; and if, after that conveyance, the lease was in force as to one of them, it must have been in force as to both; and if it was in force as to both, it is still. There could be no affirmance of it in part: the act of Worthington in receiving the rent was a recognition of the validity of the lease at the time of receiving the rents ; it was a confirmation for the time being, and if confirmed for one hour it could not be subsequently disaffirmed.
    6. There is another view of this case, which ought to be mentioned. If the lease could be brought, within the statute of 1805, so that acknowledgment would be requisite, still, in equity, the lease would be valid till avoided; and if not avoided, the tenant has at least an equitable right under it, and the clause in the ■deed, “reserving to the tenants their legal rights,” would be an exception of the lease out of the deed; so that the deed would •confer no right of possession, interfering with the right of this tenant; it would be a grant subject to, or reserving his right of possession, and on such a grant this ejectment'can not be sustained, unless it be to compel the tenant to attorn, which is not claimed. It is no answer to this, to say that “ legal rights ” only are reserved, not equitable ones. The term legal rights will not receive ■such a restricted construction. It means lawful rights, for in that sense the word is always used in common language, and in legal language also, unless it is placed in direct' contrast with •equity.
    We have one general remark to add. There is in the foregoing ■one chain of propositions, which seems to us, when put together, to amount to demonstration, and on which, therefore, we must rely. There are also several independent propositions, which, •standing alone, seem to us to sustain the defense; but we have not enlarged upon them, because it seemed unnecessary; but if we are mistaken upon other points, we trust they will not be overlooked. On the whole, the technical law of the case we think will be found to accord with its equity and justice.
    Starr, for plaintiff:
    The premises in dispute, being the estate of the .wife, could •only be conveyed according to the provisions of the law in 326] *force at the time. Section 2 of the act of February, 14, 1805, which was in force in 1816, required that “ any grant bargain and sale, lease, release, feoffment, deed, conveyance, or assurance, in the law whatsoever,” by which the estate of the wife in lands and tenements was to be conveyed, should be acknowledged by the husband and wife before a certain officer designated in the statute. Witnesses are not made necessary by this section ; but acknowledgment by the husband and wife, and examination of the latter by an officer, are made necessary. Land Laws of Ohio, 307.
    It may be thought, perhaps, that the terms lease and release, as used in this section, though separated by a comma, refer to the mode of conveyance under the statute of uses, denominated lease and release.” Be this as it may, it is apparent that every kind of conveyance, which professes to alien the estate of the wife, «omes within its provisions.
    But it may he said that Hargraves, the husband, having the usufruct and the sole right of possession during coverture, might dispose of it for the time being, in the same manner as he could dispose of any estate in lands which he held in his own right — that as a leasehold estate, independent of statutory provisions, might have been created by writing, without deed or acknowledgment, ■or attestation of witnesses, the conveyance of April 24,1816, is not ■embraced by section 1 of the act alluded to, which requires “all deeds for the conveyance of lands” to be acknowledged and attested by two witnesses.
    The writing of April, 1816, is not, properly speaking, a lease, because it parts with all the interest of the grantors — it leaves nothing in reversion — it is the conveyance of a freehold estate, which can only be granted by deed,.and for the same reason, the estate of Hargraves could be conveyed only pursuant to the first section of the act. 12 Johns. 73; 2 Ohio, 213; 5 Ohio, 190.
    It is not necessary, however, to decide whether the writing of April, 1816, was a valid conveyance of the estate of Hargraves •during the coverture; it is,sufficient to say that it had no effect after his death. It will hardly be contended that it operated as a «onveyanee of the estate of Mrs. Hargraves after the death of her husband. There being no'acknowledgment or examination before the proper officer, no estate ^belonging to her exclu- [327 sively passed by it; it was a mere dead letter. 7 Johns. 81.
    A grant by husband and wife, of the wife’s lands, not acknowledged by her, only passes the interest of the husband, and every covenant by her, in relatien to the title, is absolutely void. 10 Johns. 435, 441; 10 Johns. 110; 8 Cowen, 227; 6 Wend. 9; 17 Johns. 167 ; 15 Johns. 483.
    In 16 Johnson’s Eoports, Judge Spencer observed that the conveyance, although signed and sealed by the wife, was not her deed until she had acknowledged it according to the statute. It could not bind her as a contract.

    Chancellor Kent says, though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to- levy a fine, or convey her estate. 2 Kent Com. 141.
    The agreement of a feme covert, with the assent of her husband, for the sale of her real estate, is absolutely void at law, and the courts of equity never enforce such a contract against her. 5' Day, 492.
    We consider the writing, therefore, of April 24, 1816, as having the same effect precisely, and no other, as if Mrs. Hargraves had-not signed and sealed it.
    It will probably be contended that the lease by Hargraves and his wife, of April, 1816, to the defendant, is good for her natural life, unless she do some act after his death to avoid it; and that having joined with him in the deed to Miller, of July 26, 1831, she-is incapable of disaffirming it, or doing any act impairing the title of the defendant, acquired under it. It is on the truth of this-proposition, we presume, that the defendant principally, if not entirely, relies.
    If the lease be absolutely void as to her (as we contend it is), it is a solecism in language to say that an act of disaffirmance was necessary to avoid it. It became void on the death of her husband, and no act of affirmance, short of acknowledgment and examination, could have made it valid.
    But it will be said that 4 Bacon, title Leases, letter C, lays down the law to be, that if a husband, seized of lands, in right of his wife, makes a lease of them, reserving rent, it shall be a good lease for the whole term, unless the wife, by some act after her husband’s death, show her dissent thereto ; also, if she join in lease of her lands, but not pursuant to the statute of Henry Till, it 328] could only be avoided by a similar act of ^dissent after his death. How the .English decisions, under this statute, can be-pressed into the service of the present ease, we are not able to perceive; for it only authorized leases by husband and wife of the-wife’s lands in which she was seized of an estate of inheritance, either in fee simple or fee tail, and for three lives or twenty-one-years, and with certain reservations of rent, etc. If anything is to be derived from the English law to aid the present case, it must come from the common law. In 1 Shep. Touch. 280, it is stated that at common law if the husband make a lease of his wife’s, lands, and die, it is void; so if husband and wife make a lease of her lands, it is void after his death. Woodfall, Landlord and Tenant, 75, uses the language of Bacon, word for word, and then adds, if a widow chooses to avoid such lease, notwithstanding her-having joined therein, it is so absolutely void as to her, on the husband’s death, that she may plead non demisit, because, as to any «interest that passed from her, she did not demise. In Bro. Leases, .24, it is said, that if a husband seized in right of his wife, lease , her lands, and die within the term, the lease is void by his death. The authorities cited by Bacon, do not support the position he assumes. They are examined by Williams, in his edition of ■Saunders’ Reports, Wolton v. Hele, 3 Saund. 180, n. 9, and he comes to the sage conclusion that, upon the whole, the law is not so clearly agreed as it is said to be by Bacon. Without undertaking tantas componen lites, it is sufficient to say that there was no •acceptance of rent, in this case, after the death of Hargraves, . .either by his widow, or the lessor of the plaintiff, or any other act on their part, indicating an. intention to affirm the lease; .and all the authorities seem to concur that mere- non-feasance will not make the lease valid — that some positive act of feasance is necessary to make it effectual. Even Bacon adds, that if the wife accepts rent which becomes due after the death of the husband the lease thereby becomes valid, clearly intimating that something must be done to make the lease good for the whole term. No authority intimates that it is necessary to take any steps to avoid the lease after the death of the husband, but that it may be affirmed by some act, such as the acceptance of rent. It may be safely assumed, therefore, that all the rights of the defendant, under the lease in question, ceased upon the death of Hargraves.
    But we do not deem it important to decide whether, according •*to English authorities, a lease by the husband of the wife’s [329 lands, or a lease by husband and wife of her lands, not executed pursuant to the statute of Henry.VIII, be void or voidable; or whether it be necessary for her to do any act after the death of the husband to avoid it; or what acts by her will have the effect to avoid it.
    It is sufficient for the present purpose that the lease of April '24, 1816, to the defendant, owing to its imperfect execution by Mrs. Hargraves, did not operate to convey her estate in the premises after the death of her husband-; that it would be competent for her to reclaim the estate were it not for the deed to Miller of July, 1831, which places it out of her power ; that it is competent .for the lessor of the plaintiff to do it, as he claims the estate under her; that the right to avoid a voidable deed is not confined to the person making it, but pertains to any one claiming the estate under such person; that bringing ejectment is the most significant act of avoidance that can be expressed. Perkins, sec. 12; 2 Saund 180, n. 9; 14 Johns. 127; 11 Johns. 541; 1 Shep. Touch. 233.
    The case of Jackson, ex dem. Campbell and Read v. Halloway, 7 Johns. 81, bears directly upon the question before the court, and, in my opinion, decides it. In that case a husband made a lease of his wife’s lands regularly executed by Mm. Ten years after the husband and wife made a lease of the same lands to another person, which was duly acknowledged by her. After the death of the husband the wife accepted rent from the first lessee, or rather the assignee of the lease; yet the court decided that it was not such a confirmation of the first lease as to divest the title of the second lessee; that it was not in her power to do any act impairing his title; that the real estate of a feme covert can be conveyed in no other way than that prescribed by the statute; that analogies derived from the statute of Henry VIII, or the common law, do not come in to regulate it.
    The case of Martin v. Dwelly, 6 Wend. 9, before referred to, involves principles, it appears to us, perfectly decisive of the present question. In that case a husband and wife made a conveyance of her lands by deed, but not acknowledged. The consideration money was paid, the grantee took possession, and made valuable improvements. After the death of the husband and wife the heirs. 330] of the latter brought ejectment. *The purchaser filed a bill in equity praying that the heirs of the wife might be decreed specifically to perform her contract — release to him their title, and be enjoined from prosecuting their ejectment. The chancellor allowed an injunction, but upon hearing dissolved it. The court of errors, after a most elaborate investigation of the subject, and a critical examination of the authorities, affirmed'the decision of the chancellor. Equally decisive of the question before the court is the case of Butler and Atwater v. Buckingham. 5 Conn. 492. The defendant in that case, Mrs. Buckingham, as the widow of a former husband, Joseph Bryan, had a right of dower in a particular lot of land of which he died seized. After her marriage with Buckingham they executed a penal bond to Butler and Atwater, conditioned to make them a deed for the lot, who took possession of it, made improvements, and retained the possession more than twenty years. Upon the death of Buckingham, his widow brought her action to recover the possession of Butler and Atwater, who thereupon filed a petition in chancery for injunction and specific performance. Upon demurrer to the petition, it was held by the court that the whole system of the common law was opposed to the doctrine on which it was founded ; that it was a fundamental principle of the common law that the contract of a feme covert is absolutely void, except where she conveys her estate by fine duly acknowledged, or by some matter of record, when she is privately examined, in order to ascertain whether such conveyance is voluntary on her part; and it is pertinently said, how absurd, then, would it be to enforce such a contract to convey, made without such examination ! It would be saying that a feme covert can not directly convey her real estate unless she bo privately examined; and yet she-can contract to convey without such examination, and such contract will be enforced against her. By this mode the established law in relation to a feme covert and her real estate will be completely subverted.
    ¥e commend these-two cases and the principles they contain to the special attention of our opponents; and if further argument be not made useless by conviction, we know not what is demonstration
    It has been said that the deed made by Hargraves and wife to Miller, in July, 1831, confirms the previous lease made to the defendant by reason of the following clause contained in *it: [331 Saving to the said tenants now occupying under the grantors their legal rights. This is not an exception or reservation. 1 Shep. Touch. 78-80.
    It is not easy to perceive how a conveyance Of the lot itself to Miller, secured it to the defendant, by reason of the above clause, because he had a previous lease so defectively executed that he could not hold by virtue thereof, especially after the death of Hargraves. It would, in effect, make the defendant to take by the deed to Miller, rather than Miller himself. No one, not a party to a deed, can take anything by it-, except by way of remainder. 9 Johns. 75.
    It is a just conclusion, we think, that if the tenants had no legal right to the possession of the premises, it was not intended to confer one. Their then legal rign is were saved — no new ones given. On a former occasion it was contended-that the lessor of the plaintiff 'could derive no title under the deed from Hargraves and wife to Miller, because it was the conveyance of a freehold estate to commence “in futuro,” and, therefore, void. We do not so understand it. It is a conveyance in prcesenti. A fact extraneous to the deed, which prevents the grantee from getting possession till some time after the delivery, does not bring it within this rule. The estate must be limited by the terms of the deed to vest at a future time. The reason of the rule is obvious. Besides, a deed of bargain and sale, founded upon a pecuniary consideration, is good, though to commence in futuro. 20 Johns. 81; 1 Johns. Cas. 21; 2 Saund. 96, n. 1. Chester v. Willan.
    The success of the plaintiff in this suit has been questioned, because the lease, as it is said, contains a covenant on the part of Hargraves, that the defendant should have peaceable possession of the premises the whole term, and that such covenant is a bar to an ejectment by all persons claiming under him. There is no express covenant to that effect, and if any be implied, it is found in the word rented. The word lease is not in the instrument. Without spending time on this point, we leave it to those who make it to sustain it. 2 Caine, 183; 2 Cowen, 36; Ohio, 190.
    Since the preceding was written we have seen the printed argument of Messrs. Wright and Fox, with their comments on ours. 332] In 3 Saund. 180, n. 9, it is said that if husband %nd wife make a lease of her lands by deed, and she accept rent after his death, she will be bound by it at common law. So, too, of a lease made by them, since the statute of Henry VIII, but not pursuant to it, because, by the receipt of rent after the husband’s death, the lease is affirmed; but that, in either case, she may avoid it by bringing ejectment; and, for this purpose, the authority was referred to. It is not intimated that any act was necessary to avoid it prior to bringing ejectment, being of itself the most emphatic act of dissent that could be expressed.
    The cases in 11 and 14 Johnson abundantly support the position for which they were cited. Infants had made deeds for certain lands. After adult years they made deeds for the same lands to other persons, who avoided the deeds made in infancy, by ejectment against the persons claiming under those deeds.
    In the latter case it was made one of the grounds of defense, that no one but the infant himself, or his representatives, privies in blood, could avoid a conveyance made by him. Judge Spencer, in delivering the opinion of the court, in answer to this objection, says Perkins, section 12, states the law to be, “ that all gifts, grants, or deeds — made by infants, by matter in deed in writing, whieh do take effect by delivery of his hand — are voidable by himself, .his heirs, and those who claim his estate; ” and Lord Mansfield, 3 Burr. 1804, says this.is the rule; and Shepherd in his Touchstone, page 233, lays down the same rule, thus admitting, with respect to voidable deeds, that a privy in estate may avoid .an infant’s deed. 14 Johns. 127.
    The argument for the defendant assumes that when this suit was commenced, he was the tenant of the plaintiff from year to year, and, therefore, entitled to notice to quit; and yet that notice would have availed nothing, because the year did not expire till sixteen days afterward. According to the law of Ohio, notice •to quit previous to bringing ejectment, is not necessary. 2 Ohio, 265.
    But when and.by what means did this mew relation of landlord and tenant between the parties come into existence ? Was it upon the first acceptance of rent, by the plaintiff, of the defendant ? ■Or was it on April 24, 1832, and because Hargraves happened to die before April 24, 1833, and because .the plaintiff received rent of the defendant ^during that year ? The supposed relation [333 does not exist, unless there has been- a surrender of the lease either in fact or law: The argument for the defendant asserts no surrender of the lease; on the contrary, it insists upon its validity, and that he has still a right to retain the possession of the premises by force of it. Notice to quit is not necessary when a lease is determinable upon a certain event, or at a particular period, though the time of the happening of the event be unknown and contingent. Woodf. L. & T. 175 ; 7 Cowen, 637.
    The law fixed the determination of the lease at the death of Hargraves with the same certainty as its terms fixed it at the death of his wife. But the rent was paid to January 21, 1833; and it is asked, was not this acceptance of the rent for part of the year a confirmation of the lease for the whole of that year? We answer, no more a confirmation of the lease for the whole of that year than it would have been if Mrs. Hargraves had died instead of her husband. We have not time to'pursue this argument, and leave it to the court.
    N. Wright and Fox in reply:
    Since writing the foregoing, we have been put in possession of Mr. Starr’s argument. He insists the deed which we call a lease is no lease, because it parts with all the interest of the lessees. The definition of a lease shows the fallacy of this argument. Woodfall’s Land, and Ten. 1. But Hárgraves and wife did not grant their whole interest; they reserved a rent, and this is generally the criterion of lease or no lease.
    We do not deny the authority of 7 Johns. 81. In that case a lease has been made by the husband only; afterward another lease was executed by husband and wife, and it was held this lease put it out of the wife’s power to affirm the first one. But the decision rests upon the distinction that by the common law a parol lease, not in writing, was void, and, of course, a lease by deed of the husband only must be void as 'to the wife; but the judge recognizes the validity of a lease by deed of husband and wife, until it is disaffirmed by the wife after her husband’s death.
    The authority, Woodfall’s Land, and Ten., cited to show this lease void, does not sustain the plaintiff. On the contrary, on page 76, it distinctly recognizes the validity of the lease until the-wife’s actual dissent or disagreement. •
    *The author of the Touchstone does not support Mr. Starr. He only says if husband and wife had joined in a lease of her lands, without rendering of rent, the lease is void; or if the husband had made a lease of his wife’s land, rendering rent, and died, the-lease is void. So if he had made a lease by word, rendering rent. But he distinctly recognizes the validity of a lease by deed, such as we show by referring to the very authorities which we cite. Touchstone, 280, 281.
    The authorities cited do not support Mr. Starr in the position assumed, that the right to disaffirm pertains to all and every person to whom the estate is transferred. The cases in 11 and 14 Johns, only sustain the position that making a new deed by an individual after he arrives at age is an act of disaffirmance of one made while a minor. The page referred to in Shepherd does not-touch the ease. 3 Saund. 180, n. 9, certainly does not prove the position assumed. But it does prove, most positively, the position that a lease by deed of husband and wife of the wife’s lands is good, until avoided by the wife after the husband’s death.
    The case in 7 Johns. 81, we have before remarked upon. The case, in 16 Johns. 110, only decides that a. deed in fee of a feme

      covert is not perfect as a deed until acknowledged. 8 Cow. 277, same principle.
    We do not contend that we can' take by Miller’s deed, but we say the language of that deed must determine what was intended to be conveyed to Miller; and if it had been the intention of Hargraves and wife to have avoided the leases, they would have said so, or at least they would not have attempted to reserve to us that which it was their object by the deed to destroy. The words demise, lease, let, grant, etc., have been decided to be words of warranty. 2 Caines, 194, 195.
    Upon the whole, we conceive that our argument is not affected by the reasoning of Mr. Starr. We consider this lease as being avoidable lease at the election of Mrs. Hargraves, after her husband’s death; that no person but her or her heirs could avoid it; that'she has not avoided it since her husband’s death, and that she could not avoid it by any act during coverture; that if the transfer of the estate to Miller gave-him .and his assigns a right to avoid ¿ it, they • have not done so, b.ut have by acceptance of rent confirmed the lease; that as the plaintiff claims under Hargraves and wife, and has no *claim only through Hargraves, he is af- [335 feeted by the lease in the same manner Hargraves was affected, and that Hargraves could not have avoided this lease; that if Worthington could have avoided the lease after Hargraves’ death, he could not do it until the expiration of the current year for which he had received three-quarters’ rent, and that notice to quit must have been given.
   Judge Lane

delivered the opinion of the court;

The plaintiff shows a plain legal title to the premises, and is entitled to recover the possession, unless the defendant can retain it under a lease from Mrs. Hargraves, made whilst she was a married woman, such lease not being acknowledged nor accompanied with the fact of a separate examination. The defendant, not controverting the general proposition that the interests of a feme covert in lands can not be passed,in such forms, endeavors to retain the estate under this conveyance by the following reasoning: because, in a lease executed by husband and wife, the acceptance of rent by the wife after the death of the husband is an affirmation of the-lease that renders her liable on its covenants, consequently it is inferred that such leas© is voidable, not void, and valid until avoided. Here no act of avoidance is shown, therefore the estate of the tenant is not determined.

We do not admit this conclusion. It is the policy of the law to regard a married woman’s contracts, except those made in certain prescribed forms, as absolutely void. The case put, 4 Bac. Ab. 14, presents no exception to the rule. The lease acquired efficacy by the payment of rent to the wife after the death of the husband, not because the acceptance secures as the confirmation of a voidable contract, but because it testifies her assent to an agreement when competent to contract. It is a ratification which supplies the deficiency of a pre-existing authority.

No such assent is shown in the present case: the estate of the defendant, therefore, terminated with the life of the husband. The motion for a new trial is overruled, and judgment entered for the plaintiff.