79 W. Va. 639 | W. Va. | 1917
From a decree partitioning a small tract of land among George T. French, the plaintiff, Burnette McMillion and the infant children of Floyd McMillion, deceased, the defendant Burnette McMillion has appealed, denying plaintiff’s title to any interest in the land. •
The tract was formerly owned by Sarah Daniel and contained SS1/? acres. She conveyed away two small lots out of the tract, 1.24 acres to Amanda Clay and 1.75 acres to Victoria McMillion, which are not here involved. She, later, also conveyed a lot of 2 acres to Ellen McMillion, which was not partitioned, but title to which is involved, the court below holding plaintiff to be entitled to the entire lot.
Sarah Daniel was twice married. By her first husband she had two sons, Burnette McMillion and Floyd McMillion. The last named died in her lifetime leaving seven children, all of whom are infants. Sarah Daniels died in 1912 leaving the
Although it is not directly proven the deed to Ellen Mc-Million was made in pursuance of the contract with her husband, still it is a fact fairly and properly inferable, we think, from the facts proven, as shown by the record in the suit brought by Sarah Daniel to avoid the deed. A copy of that record is made a part of the record in this proceeding. Floyd McMillion and his wife were both parties defendant to that suit, and it appears that the fraud for which the deed was set aside was committed by Floyd himself. Mr. J. W. Mc-Creery, who prepared the deed, testified in. that ease, and it appears from his deposition that Sarah Daniel, Floyd Mc-
On the 24th of December, 1906, after the aforesaid deed had been cancelled, plaintiff received a deed from Floyd Mc-Million and wife for the aforesaid half interest, the deed specifically referring to the contract of August 30, 1905, for description of the land intended to be conveyed. But in view of the merger of the contract in the deed to Floyd’s wife, and the cancellation of the deed, he took nothing by that deed. Neither Floyd nor his wife was then seised of any interest in the land. In his amended and supplemental bill plaintiff avers that -Floyd McMillion held a title bond from his mother for a one-half interest in the land, which was acknowledged on the 3rd of November, 1905, but the only contract exhibited in the record is the one of August 30, 1905. Moreover, defendant Burnette McMillion denies that any such title bond, as is described in the amended bill, ever existed, and no proof was taken to establish that fact.
But regardless of the merger of the contract and deed, plaintiff must fail, because of the lack of proof of a complete equity in Floyd McMillion. The consideration for the contract with his mother was one dollar -and other valuable considerations, and it is not proven what they were or that they have been performed. Plaintiff acquired no higher right by his deed from Floyd McMillion and wife than his grantor had. In order to prevail he must show that his grantor had fully performed his contract, and was in position to demand a deed from Sarah Daniel. He has not even attempted to do so.
But it is further contended that plaintiff’s title has become
After the conveyance to Ellen McMillion for the one-half interest had been set aside, Sarah Daniel, on 3rd December, 1907, granted to her two acres out of the 39% acre tract. The court adjudged plaintiff to be the owner of this two acres. There being no other conveyance from Floyd McMillion and wife to plaintiff than the one heretofore mentioned, we are unable to perceive any ground for the holding, unless the chancellor was of the opinion that Ellen McMillion, although a married woman, was estopped by her deed or covenant of warranty to assert an after-acquired title to the same land, and that such estoppel would operate likewise upon her heirs. Even if the doctrine of estoppel by deed applied to a married woman, her deed did not purport to grant more than the undivided half of the land, and neither she nor her heirs would be thereby estopped to claim title to the other moiety. But, under the law' of this state, a married woman is not estopped by her deed or any covenant of warranty therein from asserting an after-acquired title to the land conveyed. Counsel for plaintiff insist that Buford v. Adair, 43 W. Va. 211, holds otherwise. We do not so interpret that decision. Mrs. Buford’s heirs were held to be estopped by her covenants of general warranty because at the time she executed the deed her husband was living separate and apart from her and in another state, which the court held effected a restoration of her rights as a feme sole, and made her covenants as binding as if she had been unmarried. The facta here are different.. Mrs. McMillion was living with her husband and he joined in the execution of her deed. At the common law a married woman was incapable of contracting, and it is essential to estoppel
There is much conflict in the decisions by the courts of the various states respecting the doctrine of estoppel by deed, as applied to married women. By statute in some of the states their covenants, respecting their separate estates, are made obligatory. But, according to the weight of authority, a statute simply authorizing a married woman to convey her real estate and to contract for the sale thereof, in conjunction with her husband, does- not, by implication, empower her to make a covenant for title, which is personally binding on her. 2 Herman on Estoppel, Sec. 582; 13 R. C. L., Sec. 362, and numerous eases cited in Note 10. Jackson v. Vanderheyden, 17 Johns. 167, 8 Am. Dec. 378, is a leading case on this
Her covenant of warranty being inoperative, Ellen McMil-lion would not have been estopped to set up her after-acquired title to the two acres, nor are her heirs estopped to assert the title which they have inherited from her. Notwithstanding her warranty, her deed had no" greater effect than to ’ pass such interest as she then had in the land, and she had the legal right to acquire, thereafter, another and better title to the same land and assert it against those claiming under her.
These observations lead to a reversal of the decree and a dismissal of plaintiff’s bill, and such will be the order of this court. Reversed, and hill dismissed.