¶1 By the Court,
¶21. The surrogate had no jurisdiction in the case to order a sale of the real estate, within all the cases heretofore decided by this court on the subject of these sales, for want of an account of the personal estate and debts accompanying the petition. (Jackson v. Crawford, 12 Wend., 533; Ford v. Walsworth, 15 id., 449; Bloom v. Burdick, 1 Hill, 130.
¶3The deed I apprehend was also void for the reason that one of the grantors was a feme covert, conveying to her husband. All deeds executed by a married woman without an acknowledgment according to the provisions of the statute are, at common law, utterly void. (Mary Bortington’s case, 10 Co., 43, Perkins; sec. 6,11; Doe v. Howland, 8 Cow., 277; 2 Riper’s H. & W., 96.)
¶4*263The wife, on account of the coverture, can not, at law, grant to her husband. (1 Inst. 187; 1 Prest, on abst. 333; 1 Bl. Com. 442 and N. 39, Chitty’s ed.)
¶52. Then as to the amount of the recovery, the learned judge, I think, erred in directing the verdict for five-eighth of the purchase money.
¶6Adeline who. was entitled to two-eighth it is true was under age at the time of the execution and delivery of the quit claim to Leavens; but it does not appear, that she has ever done any act disaffirming the deed. The title passed under her conveyance to the grantee, and he continues vested with both the legal and actual seizin having been in possession, or those holding under him, until such disaffirmance.
¶7, This doctrine was fully examined in the late case of Bool v. Mix (17 Wend., 119, and see pp. 134—5), and found well settled as above stated.’ As to her two-eighths,the plaintiff having become vested with it, there can be no breach of the covenant until she enters or in some other legal mode avoids the conveyance.
¶8This leaves a defect as to the title, only, in respect to three-eighths, to which measure the recovery should have been reduced, instead of five-eighths of the purchase money, the amount of the verdict.
¶9New trial granted, unless the plaintiff deduct two-fifths of the verdict.