On the 15th day of July, 1858, one Ebenezer L. Roberts conveyed to Almira S. Coe, the wife of the defendant, the premises in question. They were thereafter occupied by Mrs. Coe and the defendant as a family residence until 1867, at which time they both executed a deed purporting to convey the same to Nancy Fisher. The deed contained full covenants, including that of warranty, with an acknowledgment of the receipt of the consideration to them in hand paid. Possession was thereupon surrendered to Nancy Fisher, who thereafter executed and delivered to the plaintiffs a bond and mortgage to secure a loan of $15,000. The premises were subsequently conveyed to Fuller and then to Leavitt. In 1878 the Leavitts were ejected by a judgment of the court, *Page 468 at the instance of parties claiming to be heirs of one Ephraim H. Howell, by title paramount to that of Roberts, the grantor of Mrs. Coe, which judgment was affirmed by this court. (Dunning v. Leavitt, 85 N.Y. 30.) The plaintiffs then foreclosed their mortgage, and, upon the sale, bid in the premises for a sum less than the amount owing to them, and a deficiency judgment for $2,000 was entered, which has never been paid. In November, 1881, the plaintiffs obtained an order opening the judgment in ejectment and permitting them to be added as parties defendant. Upon the trial, judgment went against them, which was subsequently affirmed in this court. (95 N.Y. 617.) This action was then brought against the defendant for breach of the covenants embraced in the deed of quiet enjoyment and of warranty, Mrs. Coe having in the meantime died. The plaintiff recovered upon the trial and the judgment came to this court for review. It was heard by the Second Division and reported in124 N.Y. 212. The main question there considered was whether the defendant's covenants of warranty and quiet enjoyment ran with the land and were available by a subsequent grantee. It was held by a majority of the court that the defendant being a stranger to the fee, his covenants did not run with the land, and a new trial was ordered. Upon the re-trial judgment was entered for the defendant, but upon the findings of fact that at the time of making the conveyance the defendant was in possession of the property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family; and that upon the execution and delivery of the deed the defendant moved out of the premises and surrendered them to the grantee, who thereupon went into possession of the same. Upon the second review in this court these findings were considered in connection with the acknowledgment in the deed that the consideration was "to them in hand paid," being both the defendant and his wife, together with the provision in the covenant running to "heirs and assigns." It was then determined that the defendant, being in possession of the land, had an *Page 469 estate which he could convey, and having transferred the same with the covenants named to a grantee, his heirs or assigns, and receiving some part of the consideration, the covenants would be deemed to run with the land. Another trial was had resulting in a judgment for the plaintiff. The facts as now found are as follows: "Prior to the said conveyance the defendant had incurred and paid charges for maintaining said premises and keeping the same in repair; that he had also paid the taxes thereon in the years 1864 and 1865; that at the time of the said conveyance he was in control and had dominion over the said premises and exercised acts of control and dominion; that at the time of the said conveyance the said Almira S. Coe resided in said premises with her husband, the defendant, as a member of his family; that when the said conveyance was so made and delivered, the defendant was in possession of the said real property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family; that upon the execution and delivery of the said conveyance the defendant moved out of the said premises and surrendered the same to the said grantee, who thereupon went into the possession thereof." It is thus apparent that, upon the law as heretofore determined by this court, the judgment now entered must stand if these findings are sustained. Exceptions have been filed which call them in question and require us to determine whether there is any evidence to sustain them. Several witnesses testified that they were acquainted with the defendant and that he lived on the premises in question with his wife and family for a number of years; that when he moved out Mrs. Fisher moved in. Other witnesses testified that the defendant ordered and paid for plumbing in the house and repairs thereon from time to time; that he paid the taxes during the years 1864 and 1865, and exercised control and dominion over the premises. This is, in substance, the evidence, and it is not controverted. Does it sustain the findings and establish such a possession as *Page 470 amounts to some privity of estate? We confess that the question presented is a close one and may not be free from doubt. At common law there could be no question but that the defendant would be liable upon his covenants, for, in the real property of the wife the husband had an estate during coverture, and also during his life, if there was issue of the marriage. (Knapp v.Smith, 27 N.Y. 277.) Under the Married Women's Acts of 1848 and 1849, the wife took absolute title to her real property as though she were unmarried and no estate vested in the husband during coverture. He still may have, however, an estate during life if there be a child of the marriage born alive, but this may be cut off by a conveyance by the wife during her lifetime. The husband still remains the head of the family, in duty bound to support his wife and children and furnish them a suitable home or house in which to reside. He may, with the consent of his wife, live upon the premises owned by her, he may work the farm, raise crops thereon, may own, care for and raise cattle, and build a house thereon, and where this is done with the consent of the wife it may be inferred that he has been put into possession by her, and being in possession could maintain an action for trespass. (Alexander v. Hard, 64 N.Y. 228.) Where a party enters on woodland and cuts wood and does other acts thereon as owner, he thereby becomes seized of the land as against every one but the true owner, though his acts do not constitute the disseizin of such owner, and if he conveys by deed, his possessory title passes to his grantee and his covenant of warranty would run with the land and he becomes answerable thereon to his grantee's assignee if ousted by the true owner. (Slater v. Rawson, 6 Metc. 439.) Possession of lands means a foothold, an actual entry, a possession in fact, a standing upon it, an occupation of it. (Churchill v. Onderdonk, 59 N.Y. 134-136.) It is denoted by the exercise of acts of dominion over it, in making the ordinary use of and taking the ordinary profits from it, caring for it, having it in one's power and under his control. (Brown *Page 471 v. Volkening, 64 N.Y. 80; Williams v. Buchanan, 1 Ired. Law [N.C.], 535-540.) Sole and exclusive possession we do not understand to be necessary. Privity of estate may exist where the possession is joint. The defendant may have had a joint possession with his wife, and this has some support in the fact that they joined together in the covenants providing that they shall extend to the heirs and assigns of the grantee, thus apparently intending that it should run with the land. (Mygatt v. Coe, 142 N.Y. 78-87.) Some criticism was made by the counsel for the appellant in reference to the language used in that opinion, as to the effect of the words "heirs and assigns," that if there was privity of estate the covenants would run with the land without the words and that their use in this connection was mere surplusage. This may be so, still the fact exists that they were used, and being used, tend to make more clear and certain the meaning and intention of the covenantors. The defendant doubtless supposed that his wife had title to the premises. It turned out, however, that she had only a color of title. (Howell v. Leavitt, supra.) The only estate she in fact had was that of possession and this she had with her husband.
Upon the whole case, from the fact that he lived on the premises with his wife and family; that he exercised control and management thereof, ordered and paid for the plumbing and repairs, paid the taxes, joined in the deed and the covenants running to the heirs and assigns of the grantee and received some part of the consideration, we are inclined to the view that we cannot say, as a matter of law, that the findings are wholly without evidence to sustain them, and that the defendant intended his deed to be an idle ceremony of no force and effect. It would rather seem that he then thought he had some interest or estate that he could convey.
An exception was taken by the defendant to the exclusion of the evidence offered by him, to the effect that he received no part of the consideration expressed in the deed. In this, we think, there was no error. The deed was an executed instrument under seal. It was doubtless competent for him *Page 472 to show that the consideration was less or different from the amount recited, or to otherwise explain it, but he was estopped from showing that it was executed without any consideration for the purpose of invalidating the instrument. The covenants in a deed are material parts thereof, and if they are dependent on consideration the effect of the evidence offered would be to invalidate them. This cannot be done by parol evidence. To permit it would be to deprive subsequent grantees of rights acquired in good faith, relying upon the covenants of the grantors and his acknowledgment of having received a good consideration therefor. (M'Crea v. Purmort, 16 Wend. 460; Stackpole v. Robbins, 47 Barb. 212-219; S.C., affirmed, 48 N.Y. 665; Hebbard v.Haughian, 70 N.Y. 54-59.)
We have thus far considered the case upon the assumption that privity of estate is essential in order to cause the covenants to run with the land, and we do not now intend to question the correctness of the determination of the Second Division to the extent that the covenants of a stranger to the fee made without consideration do not run with the land. Whilst conceding this, we are unwilling to hold that an agreement may not be made, even by a stranger based upon proper consideration, to warrant and defend the title of the grantee and those that shall follow him. In many of our cities searching and guaranteeing companies have been organized for this very purpose. Such companies are strangers to the title, and have no privity of estate, but for a consideration they undertake to defend the title and we know of no reason, either in law or morals why they may not intentionally make their guaranty run with the land.
In the case under consideration as we have seen, the defendant executed the covenants in question, expressly providing that they should run to "heirs or assigns," thus intending them to run with the land. The covenants were made upon proper consideration, the receipt of which is acknowledged by him. We think, therefore, that it is but just that he carry out the provisions of his contract. *Page 473
The other questions discussed have already been considered in the former decisions of this court.
The judgment should be affirmed, with costs.
ANDREWS, Ch. J., PECKHAM and GRAY, JJ., concur with O'BRIEN, J., for reversal.
HAIGHT, J., reads dissenting opinion, and FINCH, J., concurs with opinion; BARTLETT, J., concurs in result.
Judgment reversed.