Wilson v. King. unamended bill would be enrolled and the decree would be set aside upon appeal. Neither an agreement to amend, nor an order giving leave to amend, amounts to an amendment, not even if filed in the cause. Such practice could not be tolerated. It would lead to great and inextricable confusion in enrolling the proceedings. The enrolling clerk would have to collect the orders and agreements, if they were not mislaid and could be found, and by cancellations and insertions, adjust them in the bill, in which he would be liable to serious errors. The bill, when amended, should either be re-engrossed, or the amendments actually made by canceling and interlining, or by the substitution of sheets in the place of the canceled parts containing the amendments to be inserted. And in this case the amendment never having been made or filed, King has no opportunity to answer the allegation of a parol agreement. His responsive answer might have changed my conclusions as to the evidence. But if the necessary amendment had been actually and properly made, there is another obstacle to a personal decree against King for the payment of the deficiency of the proceeds of sale of the Woodward life estate to satisfy the amount due. Rule thirty-eight declares that in a foreclosure suit no decree shall be made against any defendant for a deficiency, unless a notice that such relief is sought be served on him with the subpoena. In this case no such notice was served. The matter mainly argued on the hearing of this cause was the question of estoppel. It is contended that the covenant of Mrs. Ford against encumbrances, when this mortgage was assigned to her, operated by estoppel to extinguish the mortgage, or, at least if it did not operate as a conveyance, it estopped her personally from setting up the mortgage, and that the complainant, her assignee, took it subject to all equities and defences that existed against it in her hands. An estoppel will, in some cases, operate as a conveyance. It does not merely have the effect, which is personal, of preventing the party from averring anything against his act or deed, but in some cases it is held that the covenant of war Wilson v. King. ranty will transfer to the grantee after acquired title of the grantor, which, as is said, feeds the estoppel, and by the warranty passes to the grantee as soon as acquired. Gough v. Bell, 1 Zab. 164. This is one of the positions in that noted case which has never been doubted or reversed. But I know of no case that gives this effect to any other covenant than that of warranty. That covenant has always been peculiar in its effects. In other cases the covenants are personal only, and estop the covenantor, his heirs and assigns, from averring to the contrary. The covenant against encumbrances is a personal covenant; if untrue, it is broken as soon as made; it does not pass with the land, and the grantee or his personal representatives alone can recover on it. And it is held in states where married women have power to convey by statute, but no power to enter into contracts or covenants, that the covenants or the warranty of a married woman, even in deeds properly acknowledged, do not operate as an estoppel, either to prevent them from averring to the contrary or to convey the estate. Jackson v. Vanderheyden, 17 Johns. 167; Martin v. Dwelly, 6 Wend. 9; Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Dominick v. Michael, 4 Sandf. R. 424; Wight v. Shaw, 5 Cush. 66; Den d. Hopper v. Demarest, 1 Zab. 541. If the covenants of a married woman could be held to operate as a conveyance, these cases were wrongly decided, as in those states married women had then power to convey lands, but not to enter into any contract or covenant. And this was extended by these decisions even to the covenant of warranty. In Den v. Demarest, the covenant of Mrs. Hopper included that of warranty, and the opinion of Chief Justice Green in this matter was concurred in by Justices Randolph and Whitehead, in the Supreme Court, and by Justice Carpenter and Judges Schenck and Porter, in the Court of Errors. And although Chancellor Halsted expresses some doubt of it, he does not place his opinion on that ground, and the judgment was reversed on the ground that Mrs. Hopper, Wilson v. King. at the conveyance, had a vested estate. These cases settle the principle that laws which confer on married women the power to convey lands, do not confer on them the power to bind themselves by covenants in such conveyances as a part of the power to convey. Now it is true that by the act of March 20th, 1857, (Nir. Dig. 548, § 7,) a married woman may bind herself by covenants as to land in a deed entered into with her husband. Yet it is also true that Mrs. Ford was a resident of New York at the execution of the deed, and that it was executed in New York. And the capacity of any one to enter into a personal contract, and all questions with regard to personal status and capacity, are governed by the law of the domicil, especially when that is the place of the contract. The only exception is as to transfer of real estate, either by conveyance or succession; that is governed by the law of the location of the real estate. If these covenants were part of the act of transferring real estate, they would be valid if authorized by the law of this state. But the decisions above referred to settle the question that they are not part of the conveyance of real estate, and were not, therefore, made valid by the acts authorizing married women to convey. If, then, these covenants are mere personal covenants, the capacity of Mrs. Ford to enter into them, must be determined by the law of the state of her domicil where the covenants were made. Now the law of New York did not then, nor does it now, so far as I am informed, authorize a married woman to enter into covenants as to her husband's property. She can there make contracts as to her own property. She might, perhaps, as to her right of dower, or even her inchoate right of dower in this land. It would only in such case bind or estop her as to that right of dower, which is not in question here. If it were in question, it would not be affected by this mortgage, as it is not signed by her. This conclusion is one that will effect justice in this case. It would be inequitable that the title to a just mortgage, Pennsylvania R. R. Co. v. New York and Long Branch R. R. Co. against which there is no other defence, should be destroyed in the hands of a bona fide holder by the artificial and technical defence of an estoppel, where the covenant in the deed that is relied on to effect it was inserted by mistake, and in which, by another mistake as evident as that, a married woman who joined in the deed to release her right of dower, was made to join in the covenants. But, although the mortgage is not affected by these covenants, or any estoppel arising from them, for the reasons above given the bill must be dismissed. THE PENNSYLVANIA RAILROAD COMPANY vs. THE NEW YORK AND LONG BRANCH RAILROAD COMPANY. 1. The act of March 30th, 1869, authorizing the New York and Long Branch Railroad Company to extend their road across the Raritan river, and to cross the river by a bridge, gave that company an absolute, unconditional authority to enter upon and appropriate the lands of the state under water, without compensation. 2. The grant to the United Companies, by the act of March 31st, 1869, of the right to reclaim and erect wharves and other improvements in front of any lands owned by them, or either of them, adjoining any tide waters of this state, and when reclaimed and improved, to hold the same as owners, is subject to the authority given to the New York and Long Branch Railroad Company, to enter upon the lands of the state for the purpose of building such bridge. The Pennsylvania Railroad Company, therefore, the lessee of the United Companies, who owned lands at South Amboy, in front of which the New York and Long Branch Railroad Company have commenced to build said bridge, has not, under said act, a right of property in these lands under water, for which compensation must be made before these lands can be taken. 3. That the act authorizing the bridge did not provide for a draw does not invalidate it; nor does the fact that no draw was provided for until the act of April 1st, postpone the taking effect of the act of March 30th, until that day. The act took effect immediately. The argument was on a rule to show cause why an injunction should not issue to restrain the defendant from buildVOL. VIII. L Pennsylvania R. R. Co. v. New York and Long Branch R. R. Co. ing a bridge across the Raritan river at South Amboy over lands under water, in front of lands of the Camden and Amboy Company, leased to the complainant. Mr. I. W. Scudder, for complainant. Mr. C. Parker and Mr. B. Williamson, for defendant. THE CHANCELLOR. The legislature, by an act approved March 30th, 1869, authorized the defendant to extend its road across the Raritan river, and to connect the same at or near Perth Amboy with any railroad there, and authorized it to cross the river by a bridge. Its original charter fixed the beginning of its road to a point at or near the village of South Amboy, Another act, approved April 1st, 1869, required a draw one hundred feet wide to be constructed in the bridge. By an act, approved March 31st, 1869, the legislature authorized the United Companies of New Jersey, of which the Camden and Amboy Railroad Company was one, to reclaim and erect wharves and other improvements in front of any lands owned by them, or either of them, adjoining any tide waters of this state, and when reclaimed and improved, to hold the same as owners. The Camden and Amboy Railroad Company owned lands at South Amboy, on the Raritan, which, with all property and privileges of the United Companies, are held by the complainant by lease. The defendant has located the route of its road and bridgethe bridge route crossing the Raritan from Perth Amboy to South Amboy, and over lands in the river, in front of these lands owned by the Camden and Amboy Company-and has commenced building the bridge and driving piles in the river bed, and intends to continue the bridge and driving piles in the river in front of and adjoining these lands of the Camden and Amboy Company. It has not made, and does not intend to make, compensation for these lands under water before erecting the bridge, but has commenced proceedings for con |