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Opinion of the Court, per FOLGER, J.

a conveyance with her husband, operates against her only by estoppel. An estoppel must be reciprocal, and binds only in favor of those who are privy thereto. A release of dower can be availed of then, only by one who claims under the very title which was created by the conveyance with which the release is joined. A release to a stranger to that title, does not extinguish the right of dower. (Harriman v. Gray, 49 Maine, 537.) It shows no privity of estate or connection of any kind between the doweress and the tenant. (Pixley v. Bennett, 11 Mass., 298.) But when a creditor of the husband pursues him to judgment and attacks as fraudulent and sets aside as void the deed from him, joining in which the wife has released her right of dower, he does not connect himself with the title which that deed has created, and with which the release of dower is connected. He sets up the title of the husband as it existed before the fraudulent conveyance, and stands in hostility to the title which it has given. Not being a party to the release or in privity with it, he may not set it up in bar of dower. (See Wyman v. Fox, 59 Maine, 100; Robinson v. Bates, 3 Met., 40.)


We are of the opinion that the defendant cannot successfully stand upon this ground.

The research of counsel has not furnished us with any decision of the courts in this State directly upon this point. The Manhattan Co v. Evertsen (6 Paige, 457) is cited by the defendant. At first reading it seems to make for him. But look how the question came up there, and between what contestants it was to be determined, and it will be seen that the decision there may be maintained and not clash with our conclusion. That was a contest for the distribution of surplus moneys, arising upon the sale of lands on the foreclosure of a mortgage prior to all the claims in dispute. It was then in theory, a dispute as to the residue of land, the same as if fifty acres having been taken from seventy-five to satisfy the mortgage, who shall have that which is left. (Matthews v. Duryee, 45 Barb., 69.) The only contestants as to the right of dower were the widow on the one hand; and the grantee

Opinion of the Court, per FOLGER, J.

of the husband and wife to whom she had released her dower, and the mortgagee of that grantee on the other. The deeds which had been executed were held valid as to the trust specified in them, but inoperative after that as against the creditors of the husband. It is obvious that the only question arising on these facts and between these litigants was, whether a deed valid as to a part of its purposes, and invalid as to part, should be held so effectual between the parties to it, as that the grantee therein and those in privity with him as such, could set up the release of right of dower therein contained against the wife who had executed it, when as widow she claimed dower. That question was solved by the consideration, that had the deed been absolutely void as against creditors, yet it transferred the legal title to the grantee as against the grantors; and that had it created a valid legal title subject to resulting trusts in the husband, the widow could not be endowed of a mere equity. The principle here involved was not considered, nor did it need to be considered. Meyer v. Mohr (1 Robt., 333) is also cited by the defendant. It is there held that the wife having united with her husband in a fraudulent deed, had divested herself of her inchoate right of dower, and was not entitled to any protective provision in a judg ment setting aside the deed as void against creditors and ordering a sale. The question does not appear to have been fully considered there. We are constrained to differ from the conclusion there reached. In Den Ex dem v. Johnson (3 Harrison [N. J.], 87), it was held that a wife was not incapacitated by interest from testifying as a witness that a deed which had been executed by her and by her husband was fraudulent. The action was between one claiming the premises as a purchaser at sheriff's sale, on a judgment against the husband prior to the deed, and one claiming under the deed alleged to be fraudulent. If the wife by her testimony should sustain the deed, her dower was barred by it If she showed that the deed was fraudulent, then if we are right, the grantee in it might be dispossessed, and her right of dower be restored to her as against the purchaser at the sheriff's

Opinion of the Court, per FOLGER, J.

sale. Her interest was not to protect the deed. But it was held in that case, that the alleged fraudulent deed being good against the grantors, her dower was unquestionably gone, and that by showing it fraudulent as to creditors, she did not thereby restore her husband's title to the land nor her own right to dower. It will be perceived that the question presented to us was not raised, at least with distinctness, in the learned court which passed upon that case, as is evident from the citations with which the decision is sustained, which are all to the point, only that as between parties to a fraudulent deed the deed is valid. (Osborne v. Moss, 7 J. R., 161; Jackson v. Garnsey, 16 id., 189; Same v. King, 4 Cow., 207-216; 11 Wheat., 213, are cited.) We feel obliged to yield to the greater force of authority upon the other side of the question, arrayed upon the points for the plaintiff and drawn from the reports of many States.

4th. In addition to the three grounds above noticed, taken upon the printed points of the defendant, another was suggested on the oral argument.

It appears that the grantee of the plaintiff and her hus band, after the execution of the deed to him, conveyed in turn to the plaintiff, so that as among them she became the sole owner in fee of the whole premises. It is claimed that by this, the inchoate right of dower became merged in the greater estate acquired by the last conveyance. But we do not think that this position will avail the defendant in this case. It may be conceded that ordinarily where two such interests in lands meet in one person, the lesser sinks into the greater. And as we have above admitted, the fraudulent conveyance from plaintiff and husband and that back to plaintiff, were valid between the parties to them. But it has been held that this latter rule does not apply to work a merger of a lesser estate in a greater. The force of that rule is, that where one has sought to work wrong, the law will not aid him to trace back when he seeks to reach again the property. But when both he and his conspirator have lost the property conveyed, and the deed has been avoided by the SICKELS-VOL. IV.


Statement of case.

court, and the property restored for the benefit of creditors, the further penalty will not be inflicted of the loss of another interest upon the ground of a merger. (Roberts v. Jackson, 1 Wend., 478.)

For these reasons the judgment appealed from should be reversed, and a new trial ordered with costs to abide the event of the action.

GROVER, J., dissented, upon the ground that all claim of the plaintiff of title to the land, or of any interest therein, whether as dower or otherwise, was cut off by the judgment under which the defendant acquired title. That being a party to the action, she was bound to set up any defence she had to the relief demanded by the plaintiff therein, which was a sale of the land for the purpose of paying the debts of the grantor, or of her grantor, whether such defence was a bar to the entire action, by showing a valid title to the whole land as against the claim made by the plaintiff, or partial only, by showing title to part or some lien or claim thereto, contingent or otherwise, not subject to the claim of the plaintiff. That Lewis v. Smith (5th Selden), was not applicable to the facts of this case.

All concur for reversal except GROVER, J., dissenting.
Judgment reversed.

HENRY L. FISH et al., Appellants, v. BRACKETT H. CLARK, impleaded, etc., Respondent.

When one who is not in business as a common carrier, but who is the owner of a canal boat used generally in the transportation of freight for himself, applies to a common carrier who has knowledge of the facts and receives a load of freight, such owner is not subject to liability as a common carrier. The fact that the common carrier, as such, contracted with others for the carriage of the freight, and that the owner of the boat was aware of this, does not affect the liablity of the latter. His liability is determined by the business in which he is engaged, and the character of his own employment, not that of his employer.

(Argued March 27, 1872; decided April 2, 1872.)

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Statement of case.

APPEAL from order of the General Term of the Supreme Court in the seventh judicial district, reversing judgment in favor of plaintiffs against defendant Clark, entered upon the report of a referee and granting a new trial. (Reported below, 2 Lans., 176.)

Action to recover against defendants as common carriers for damage to a cargo of merchandise on board of defendant's boat. The facts as to the contract between the parties are set forth in the opinion. The boat sank, and the injury happened by reason of a break in the canal at Whitesboro'. Defendant Campbell did not know of the contract. The complaint was dismissed as to him, and judgment rendered in favor of plaintiffs against defendant Clark for amount of loss paid by plaintiffs to the owners.

Edward Harris, for appellants. Plaintiffs were agents of defendants in respect to the property. (2 Kent, 9th ed., 826, mar. 613.) The agency not having been disclosed, they were liable to the owners. (1 Par. on Con., 53; Beebe v. Roberts, 12 Wend., 213.) And the law implies a promise that defendant, the principal, will reimburse them. (Stover v. Flack, 30 N. Y., 67; Ramsey v. Gardner, 11 Johns., 439; Powell v. Trustees of Newburgh, 19 Johns., 284.) Defendant was a common carrier of the property. (1 Par. on Con., 639; Gisbame v. Hurst, 1 Salk., 249; Angel on Car., § 69; Allen v. Sackrider, 37 N. Y., 342; see also Gordon v. Hutchinson, 1 Watts and S., Penn. R., 285; Powers v. Davenport, 7 Black [Ind.] R., 497; Turney v. Wilson, 7 Yerg. [Tenn.] R., 340; Craig v. Childers, Peck [Tenn.] R., 270; McClure v. Hammond, 1 Bays, S. C. R., 99; and see Mr. Wallace's note to Coggs v. Bernard, 1 Smith Leading Cases, 311, 312; Fish v. Chapman, 2 Kelly [Ga.] R., 355.) Canal boats are common carriers. (5 Wend., 33; 14 id., 215, 225.) A private carrier may become common carrier by agreement. (Robin son v. Densmore, 2 B. & P., 416.)

J. C. Cochrane for respondent. Defendant Clark was not a common carrier. (Allen v. Sackrider, 37 N. Y., 341.)

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