Gallagher

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 *101 the 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…