By dеed dated 18th August, 1865, Rebecca J. Everett conveyed to Sarah H. G. Pennybacker then a married woman 240 acres of land now within the city of Huntington. By a deed dated 25th February, 1870, Sarah H. G. Pennybacker and her husband, John M., united in a deed purporting to convey said land to O. P. Huntington; and by deed dated 16th October, 1871, Huntington conveyed it to the Central Land Company. Huntington took possession, and after him the Central Land Company, and it laid off a largo part of said land into lots, streets and alleys, sold many lots, and buildings have been erected thereon. Mrs. Penny backer’s husband died 5th May, 1881, and she by deed dated 26th January, 1882, conveyed said land to John B. Laidley, who had full notice of said deed to Huntington when he took his conveyance. .In March, 1882, Laidley brought an aetiou of ejectment against the Central Land Company and others to recover
On the decision by this court .of the writ of error, as will be seen from the case of Laidley v. Land Co.,
Pénding said writ of error, the Central Land Company brought a chancery suit against Laidley and others, alleging the facts above stated; and further that Laidley procured his deed from Mrs. Pennybacker by misrepresenting to her, that she Avas conveying a dower only, аnd paid her only $500.00 for it, whereas Huntington had paid $11,000.00 and the land was worth at date of Laidley’s deed $30,000.00; and that it had sold divers lots to the Chesapeake & Ohio Railroad Company and others, Avliohad built railroad tracks and houses thereon, and relying on adverse possession from the date of the deed to Huntington; and that Laidley when he took his deed had full knowledge of the deed from Pennybacker to Huntington, and from Huntington to the land company, and of the sales of said lots. Said Land Company further alleged, that in 1872 Mrs. Pennybacker brought a chancery suit against her husband and others, in which she stated, that she had on payment to her of $11,000.00 consideration conveyed the land to Huntington, that it Avas her separate estate, and that her husband had agreed to invest the money in other land for hеr, but' had wrongfully invested it in his own name in two farms, and Avhich farms she sought to have declared her separate estate and conveyed to her; and that a decree had been rendered in said suit declaring her entitled to one of those farms, — the Noel farms — by reason of the investment therein of money arising from said sale of her land to Huntington; that she and her husband had made a deed to onе Parsons, duly acknowledged, conveying one acre, Avhich in the deed to Huntington she had reserved, and that in the deed to said Parsons she recognized the'Hunting
The bill contended, that by reason of said deeds and the plaintiff’s claim and possession оf said land and the claim of Mrs. Pennybaeker through said chancery suit and decree therein, recognizing said sale to Huntington and obtaining the benefit of its proceeds, and her recognition of the conveyance to Huntington in her deed to Parsons, and the knowledge on the part of Laidley of all the rights of all these parties, when he took his deed, the said land company bad good title, which was beclouded and disquieted by Laidley’s claim and action of ejectment.
It appeared, that Mrs. Pennybaeker had later suffered losses and was insolvent, and her husband’s estate likewise, and not good for the warranty in said deed.
The bill claimed, that Laidley held under his conveyance from Mrs. Pennybaeker as trustee for the Land Company and others owning parcels of the land under it; and.it prayed that he be required fo convey said lands to them, and be-enjoined from prosecuting said action of ejectment and other actions, which Laidley had instituted' against vendees of said company; or, if such relief could not be had, that Laidley be required to refund the $11,000.00, which Huntington had paid Mrs. Pennybaeker for the land, and that the land be charged with it.
Laidley filed an answer maintaining, that by the deed from Pennybaeker and wife John M. Pennybaeker passed only a life-estate to Huntington, as the deed from Everett to Mrs. Pennybaeker invested him with a life-estate and her with a remainder in fee: and that Mrs."Pennybaeker by the deed to Huntington did not convey her estate to him, and denying that she received the $11,000.00 consideration from Huntington, and averring that her husband received and squandеred it. He denies, that he represented to her, that she had only a dower, and avers told her her deed to Huntington was void, and she could recover a.fee-simple. He denies all right of the plaintiff, and contends that he (Laid-ley) is not to be deemed a trustee holding the title for the com
The plaintiff filed an amended and supplemental hill setting up the sales of other parcels of land to other parties, and stating that since the filing of the original hill said writ of error had been determined, reversing said judgment in ejectment, and granting a new trial, and alleging again substantially the facts stated in the original bill, claiming that the plaintiff had superior equity, while Laidley held the legal title, and praying the same relief as was prayed for in the original bill.
Laidley answered contesting the plaintiff’s case from first to last, alleging that the deed to Huntington had been held void by the Supreme Court, asserting his title and insisting that the plaintiff’s title was void.
Mrs. Pennybacker filed demurrers to both bills, assigning various grounds. Laidley also filed demurrers to both bills, specifying various grounds. Yoluminous depositions were taken by both sides. On the hearing the bills were dismissed ; and plaintiff took the appeal, which we now decide.
This is a very important cause involving the right to a large part of the growing city of Huntington. The deed from Pennybacker and wife to Huntington has been held by this court void as to the fee because of defects in the certificate of the examination and acknowledgment of Mrs. Pennybacker. We must in deciding this cause start on оur road with that fact settled, and follow the logical, legal sequences, lead where they may. A line of decisons by this court holds, that a married woman’s deed with such defective certificate is not merely voidable but utterly void ah initio. Ho power can now change this rule but that of the legislature. This paper, though it has the form and semblance of a deed, is no deed in law as to Mrs. Pennybacker and as to her passed no title whatever, — not a shadow of title either legal or equitable — to Huntington; and in the language of the Maryland court in Johns v. Reardon,
In the case of a married woman’s void conveyance, (Mattox v. Hightshue.,
That case logically by analogy rules this case. An infant’s conveyance is not void but voidable, whereas a married woman’s deed without proper certificate is void at the start. If a man may. purchase the infant’s land, after he becomes of age, with notice of a prior sale to another during infancy' vesting the first purchaser with title until avoided, and the second purchaser takes a better title than the first and can call on equity to enforce his right by taking from the first purchaser his legal title acquired, after the infant obtained his majority, pursuant to his sale in infancy, why can not much more a second purchaser from a married woman acquire a better title than one, who took from her a deed not voidable but void at the instant of its execution ? As Judge Agnew said in Glidden v. Strupler, 52 Pa. St. 402, in speaking of a married woman’s void deed: “Equity can not breathe life into a legal nonentity.” 1 Story, Eq. Jur. § 177, says of married women’s void acts: “Equity must follow the law, be the consideration ever so meritorious.” Such void deed can not be void in a court of law and valid in a court of equity, for the statute binds both. “What immunity or protection would a woman have from her incapacity to alienate her property, if it could be removed by changing the form of action from law to equity ?” asks Judge Agnew in Glidden v. Strupler, cited above. And so the plaintiff’s appeal to a court of equity from a court of law must be vain; for the iron rule of the statute in quеstion binds both courts with its imperious power.
Another point is made by the able counsel of the plaintiff based on the idea of estoppel; the argument being, that, as she received the money under the sale to Huntington and used it, and some of it was paid for a farm in her husband’s ñamé, which she followed up by suit and secured and now enjoys, she cannot repudiate her conveyance to Huntingtоn.
The statute was meant for her protection. Were she herself suing for her land, would any one question her right to recover ? To forbid her would be a virtual repeal of the
Again, it is said, that in the suit of Pennybacker against her husband and others, wherein she referred to the deed to Huntington and claimed the money as her separate estate and sought its proceeds, and by her reference in her deed to Parsons to the deed to Huntington she recognizes that deed and ratifies it. So it was contended in Leftwich v. Neal,
The claim of plaintiff to compel Laidley by a charge on the land to repay the $11,000.00 purchase-money paid by Huntington can not be sustained. Laidley was not a party to the deed from the Penuybackers to Huntington, and the clаim is purely a personal demand and only against the husband of Mrs. Pennybacker; and as Huntington’s deed wras void, and he thereby acquired no interest in or concerning the land, his payment does not attach to the land or follow it into Laidley’s hands. Mustard v. Wohlford,
In Scott v. Battle,
As to the claim of adversary possession under the statute of limitations, this Court held, that the deed from Pеnny-backer and wife to Huntington having been made prior to the enactment of the Code of 1868, containing section 3 of chapter 66, did not confer on Mrs. Pennybaeker a separate estate, but conferred ou her husband a freehold estate, which would continue during the joint lives of husband and wife, with remainder to her. Huntington by the deed to him became vested with the freehold life-estate of the husband of Mrs. Pennybaeker, and he and his vendees had right to possession, as long as her husband lived, and she or Laidley had no right to that possession until his death ; which occurred May 5, 1881. Thus her right of action did not accrue until then, and the ejectment was brought 28th March, 1882. The action is not barred. Bolling v. Teel,
The case of Shivers v. Simmons,
. The case of Warner v. Sickles, Wright, 81, is also urged.by the appellant, wherein there was a sale of land by a married woman, who afterwards conveyed it to a third person with notice of the first sale, and the second purchaser was held to hold for the first purchaser and was decreed to convey to him. The court thought the title-bond of the feme void, and that it could not be enforced against her or her heirs, yet said she had no interest to protect but had сonveyed to a third person, and for that reason held that third person a trustee: How the instrument could be utterly void as to the feme and her heirs and not enforceable against them, and yet valid against one who purchased from her by proper deed and became vested with her estate, I cannot see. . The conclusion seems illogical.
We do not think these cases propound the law correctly, 'and we can not follow-them.
As to the charge that Laidley obtained his deed by misrepresentation and fraud and for inadquate price we express no opinion for the Central Land Company having no interest in the estate by reason of the void deed can not avail itself of such misrepresentation, fráud and inadequacy, if that allegation were ever so well sustained.
The decree of the Circuit Court of Summers county is affirmed with costs to appellee.
Affirmed.