BROWN, J.

The covenant of renewal contained in Tibken's lease was one which ran with the land and was enforceable against the grantee of the lessor and constituted an encumbrance which justified the purchaser in refusing to take the title under the contract.

The argument that the term "existing tenancies" covered the Tibken lease cannot prevail in the face of the particular specification in the contract of that lease as expiring on May 1, 1889.

The case does not disclose what was intended to be covered by the expression "existing tenancies," but inasmuch as Tibken was the lessee of the store floor of the building only, it is sufficiently apparent that "existing tenancies" must have had reference to the occupants of the other portions of the building.

Such tenancies the purchaser agreed to accept, whatever their terms, but as to Tibken's lease, there was a definite agreement that it expired May 1, 1889, and the purchaser was not obligated to take the property subject to a lease that might continue two years longer. By reason of the existence of the covenant to renew contained in that lease the vendor was unable to perform his contract according to its terms.

The objection that the assignment from Jacob Fruhauf to the plaintiff was void, was properly overruled.

Although a husband could not at common law contract with his wife, he could make her a valid gift of a chattel or of a chose in action. In equity the property given was treated as the wife's separate estate and the courts would protect her in its enjoyment even against her husband, and her title for the purpose of protecting her possession, was regarded as clothed with the incidents of a legal estate.

But, if as to gifts made before the enactment of the statutes of 1860 and 1862, her title was equitable only, under those statutes it ripened into a legal estate and vested the property in her. Separate ownership of property by the wife is now possible and she may take the legal title to personal property by a gift from her husband. (1 Parsons on Contracts, 345; 2 Kent's Com. 163; Savage v. O'Neil, 44 N.Y. 301; Rawson v. Penn. R.R. Co., 48 id. 212; Seymour v. Fellows, 77 id. 178; Armitage v. Mace, 96 id. 538; Whiton v. Snyder, 88 id. 299.)

It is true that under a contract for the purchase of land, the vendee's interest for many purposes is regarded as real estate, but the interest is an equitable one solely. The legal title remains in the vendor.

A deed is not essential to transfer the purchaser's interest in the contract. It will pass by assignment, and we see no objection to the gift of such an interest by a husband to his wife.

Upon the delivery of the contract and a proper assignment thereof, the rights existing in the purchaser thereunder passed to her.

No other exceptions require discussion.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.