Upon the argument of this cause, it was understood that the decision of the court should be suspended for the purpose of enabling the complainant to propose some formal amendments to his bill, which it was supposed the other party would probably agree to, for the purpose of having the case decided upon its merits only. But as a year and a half has since elapsed, and no application has been made to amend, I must consider the complainant as having abandoned the right to apply to amend this injunction bill. I shall therefore proceed to make a final decision upon the bill in its present form.
One of the objections made upon the argument by the defendant’s counsel was, that the bill did not show that the complainant had acquired the title to lot number eleven, which the sheriff’s deed professed to convey to J. Sterling. The defect in that part of the bill is, that the complainant alleges that he bought the premises of the estate of Sterling, and took a conveyance from his widow and one of his children, and from the guardian of two other children ; without stating whether these were all the heirs at law of Sterling, or whether the title to the property came to them by devise or descent; and without showing any authority to the guardian to sell the real estate of his infant wards. The objection to the complainant’s title in this respect is certainly well taken, even if it should be conceded that the grantee of the whole of Sterling’s legal claim or interest, in the lands sold by the sheriff, would by a mere conveyance of the land itself become the assignee of any equitable claim which Sterling might have had against Genet or his wife to refund the surplus moneys received from the sheriff, on the sale of a lot to a purchaser who acquired no legal title under the judgment and execution.
The bill is not properly framed to obtain relief under the act of April, 1813, relative to judgments and executions, *143(1 R. L. of 1813, p. 504,) even if the last clause of the eleventh section of that act extended to such a case; as that statute contemplated a proceeding in which the plaintiffs in the judgment, as well as the persons against whom the execution was issued, should be made parties. Besides, that statute merely authorized a suit at law in the supreme court, by an original writ returnable in that court. Again : the revised statutes, which were in force at the time this eviction took place, give to the purchaser or his assigns, who have been evicted by reason of the reversal of the judgment upon which the real estate was sold, a remedy against the party for whose benefit the same was sold, in a suit at law to recover back the purchase money and interest. (2 R. S. 376, § [68,] 72.) Whether the complainant has not a perfect remedy in this case against the Manhattan Company, for whose benefit the sale was made, to recover back the whole purchase money and interest, is a question which does not arise here. But it is clear that no such remedy is given by the statute, either at law or in equity, against Mrs. Genet; for the judgment was not against her personally, neither was this lot sold for her benfit. The execution was only against such real estate as had come to her by devise or descent from her mother. She therefore had no interest in, neither was she in any way personally benefitted in having this lot, which belonged to her under the deed of May, 1814, sold for the payment of her mother’s debt. There is no allegation in the complainant’s bill that the conveyance to her was actually fraudulent, or that her mother at the time of that conveyance had not other property which was sufficient to pay all her debts. The only averment in the bill is, that upon the trial of the issue in the original suit, against the heirs and devisees of Mrs. Osgood, the court and jury, upon the legal and illegal evidence then produced, decided that this conveyance was fraudulent. But by a reference to a report of that case, it will be 'seen that a part of the illegal evidence which was received at the circuit, and for the improper admission of which the judg*144ment was reversed by the court for the correction of errors, was evidence introduced for the purpose of shewing that Mrs. Osgood was insolvent at the time of giving these conveyances to her children, and that such conveyances were therefore fraudulent and void against her creditors. (Osgood v. The Manhattan Company, 3 Cowen’s Rep. 612.) The court of dernier resort having reversed the judgment, because illegal and improper evidence had been submitted to the jury to prove that the grantor was insolvent when the deed was given, the verdict of the jury which was produced in part at least by such illegal testimony, even if the jury had declared in terms that the deed was fraudulent, must necessarily fall with it; and would be no evidence of fraud in any future litigation. And such was the decision of the court for the correction of errors in the ejectment suit when the case was last before it in December, 1837. (Wood v. Jackson, ex dem. Genet and others, 18 Wend. Rep. 107.) The complainant therefore has no pretence of claim, either at law or in equity, against Mrs. Genet, to recover back any part of the purchase money paid by Sterling upon his purchase of lot number eleven at the sheriff’s sale i unless she is legally chargeable with the act of her husband in receiving the surplus moneys raised on that sale. That question I will now proceed to consider.
At the time of the sheriff’s sale, Genet, by virtue of his marriage, had a life estate in his wife’s real property. And if any part of her real estate was legally sold upon an execution against her, he had also by virtue of such marriage full power and authority to receive any surplus money which might be raised on such sale; and to apply it to his own use, as a part of her personal property accrued by act and operation of law. It is even doubtful whether a court of equity could have protected it for her use, as against the husband and his creditors, where it had not been previously secured to her for her separate use. It is evident, therefore, that she could not in any way have prevented her husband from receiving this surplus money, which was raised by the illegal sale of property in which he had a *145life interest; and I am not aware of any legal or equitable principle upon which she can be made liable to refund money thus received by her husband, and which it is not pretended by the bill has been applied for the benefit of her separate estate. As it is perfectly well settled that a feme covert cannot bind herself, personally, by any contract or agreement, although she may make an agreement which will bind her separate estate in the hands of a trustee, it is unnecessary to cite authorities to show that the husband cannot bind her personally, by any act of his. The averment in the bill “ that the money was received by the husband in trust for her, and as the representative of her interest, and that it was applied by him to the joint benefit of himself and wife, according to their respective rights and interests therein,” was not intended as an averment of a fact to be sworn to by the complainant; but it is stated by the pleader as a mere conclusion of law which he attempts to draw from the facts previously charged. Besides : the averment that the money was applied by the husband to the joint benefit of himself and his wife according to respective rights therein, amounts to nothing even as an averment of a fact; as she had no right whatever in the surplus raised on this sale. And as I have before said, the whole surplus, even upon a valid sale of the wife’s property, would belong to the husband • subject at most to the wife’s equity to a support out of the same.
It is unnecessary to inquire whether any relief could be obtained against her, as executrix of her husband, as there is no prayer in the bill under which any relief can be given against her in that character ; neither is it alleged that any thing has come to her hands as the executrix or as the re-residuary devisee of her husband. The mesne profits belong to her in her own right, as the survivor of her husband, as a part of her property which he had not reduced to possession in his lifetime, and which therefore do not belong to his creditors.
It was not necessary for the complainant to come into this court to obtain an offset of the permanent improvements *146which he has made upon the premises, against the defendant’s claim for mesne profits ; as he has a perfect remedy in that respect in the proceedings at law. (2 R. S. 311, 49.)
As the complainant upon the case made by his bill is not entitled to any discovery or relief of which he can avail himself, either in this court or elsewhere, under the very special prayer contained in that bill, the demurrer must be allowed and the bill dismissed with costs. And the injunction issued in the cause must be dissolved; if the order to that effect has not already been entered.