20 Iowa 431 | Iowa | 1866
While many authorities hold that a wife who conveys her own land with warranty, will be estopped to set up a subsequent title (Hill's Lessee v. West, 8 Ohio, 222, 227 (1837), materially misquoted in Rawle on Cov. Title (2d ed.), 429, note, using the words conveyance of 11 his land,” instead of 11 her land,” as in the original; Nash v. Spofford, 10 Metc., 192 (1845); Fowler v. Shearer, 7 Mass., 14 (1810); arguendo by Parsons, Ch. J.; Colcord v. Swan, Id., 21 (1811); Doane v. Wilcut, 5 Gray, 332 (1855), per Shaw, Ch. J.; but see and compare Wright v. Shaw, 5 Cush., 56, 66 (1849), where previous cases (except 10 Metc., 192, supra), are reviewed, and estoppel of wife doubted; Den v. Demarest, 1 Zabr., N. J., 525 (1848); Fletcher v. Coleman, 2 Head. (Tenn.), 384 (1859); Pentz v. Simonson, 13 N. J., 234; Morrison v. Wilson, 13 Cal., 494 (1859); Massie v. Sebastian, 4 Bibb. (Ky.), 436 (1816); 2 Wash. Real Prop., 485, pl. 43; 586, pl. 23), yet few, if any of them hold that she is thus estopped where she unites in a conveyance of her husband’s real estate, though she joins in a covenant. Jackson v. Vanderheyden, 17 Johns., 167 (1819), directly in point; Groat v. Townsend, 2 Hill, N. Y., 554 (1842); Mar
That she is not barred of an after acquired title, by a covenant in a deed intended to convey her husband’s land,** would seem to have been the opinion of the court in Schaffner v. Grutzmacher, 6 Iowa, 137, although that case did not alone rest, as it did in part, upon this ground.
So in the circumstances of this case, we see no reason for holding Mary Bras disabled from acquiring for herself with her own means, the sheriff’s certificate of sale, and the sheriff’s deed which it authorized to be made to her. She bought this with her own money, with money upon which neither her husband or his creditors, or covenantee had any claim. She made the purchase on the last day for the redemption, when her husband, Wood & Baker, the second lien holders, and Sarah Carter the grantee, had all failed to redeem, and when, if Mrs. Bras had not purchased the certificate, the title would have passed to Cobb¿ and forever away from Wood & Baker and Sarah Carter. They were not injured or affected by her purchase.
They had the same rights after her purchase as they had against Cobb, her assignor.
Wood & Baker were not, as argued by appellant, enjoined from redeeming from Cobb’s sale. The covenant of. Mrs. Bras in the deed of her husband’s land, did not bind her personally, and, in our opinion, it did not have •the effect to make the subsequent title, which she acquired in the way stated, inure to Sarah Carter, the former purchaser from her husband.
III. Plaintiff next claims that the sale under the Bird, Brown & Co. judgment, was void, because it was made after the lapse of more than seventy days from the test of the execution. The execution was issued January 7,1860.
Upon an examination of the whole case we are of opinion that the District Court properly adjudged the cause for the defendant.
The judgment, therefore, stands
Affirmed.