Gallagher v. Pine

The instrument made on the 4th of August, 1849, between Barselisa Bernal Martin and John Martin, her husband, of the one part, and J. D. Hoppe and C. B. Marvin of the other part, was sufficient under the law then in force to pass the title of a married woman to real estate. The instrument, as we construe it, transferred her title to the lands therein mentioned, to Hoppe and Marvin.

The purpose of the instrument executed by and between *101the above-named parties and Peter H. Burnett, on the first day of December, 1849, was, in our opinion, to place Burnett, both in respect to the title to lands, and the covenants to be performed by Hoppe and Marvin, in the place of Marvin. The parties intended by that instrument to vest in Burnett the title then held by Marvin, and to accept from Burnett a covenant to perform the services which Marvin had covenanted to perform. Such performance on the part of Burnett would not be possible, unless he occupied Marvin’s place in respect to the title—unless the title was vested in him. Our conclusion is, that the instrument executed on the 1st day of December, 1849, vested in Burnett the title then held by Marvin.

The conveyance subsequently made by Barselisa Bernal and her then husband, G. W. Frazer, to the defendant, of a portion of the lands, did not transfer any title, for after her conveyance to Hoppe and Marvin, no title, either legal or equitable, remained in her. She or her husband was entitled, under the instrument of the 4th day of August, 1849, to the one-half of the proceeds of the sale, and to have the property managed and disposed of according to the covenants therein contained; and a failure on the part of Hoppe and Burnett would give a right of action to Barselisa Bernal, if she is entitled to the benefits of the covenants; but her deed to the defendant of a portion of the lands did not vest in the latter any estate in the land, either legal or equitable.

The other points do not require any notice.

Judgment affirmed.

Mr. Chief Justice Wallace did not express an opinion.