| N.C. | May 5, 1819
The bill then charged that George W. Daniel died, leaving the said Sarah, his widow, surviving him; and that she, never having been privily examined touching the execution of the said deed by her during her coverture, availed herself thereof, and entered on the said tract of land, and expelled the tenant, who held under the said Charles Jones, and avoided the estate, and continued possessed thereof until her death: whereupon the same descended to her heirs at law.
That Silas Jones, being apprised of the circumstances, disclaimed any right to enforce the payment (475) of the administrator's bond; but died soon after arriving at age, and administration upon his estate was granted to Ruffin Granger, who had instituted suit upon the bond, and recovered a judgment in the name of Daniel Patrick, to whom the bond was made payable. The bill prayed for an injunction, which was granted; and the Defendants filed a general demurrer to the bill. The presiding Judge sent the question arising on this demurrer to this Court; and the Judges here were divided in their opinions. HENDERSON and HALL being of opinion that the demurrer should be overruled; TAYLOR, Chief Justice, contra. The purchaser contracted for the wife's estate of inheritance, not for the husband's freehold in her right, and has obtained a conveyance which (to make the most of it in its present form) transferred only the husband's estate; but might, by the private examination of the wife, have passed also her interest. And no doubt can exist, but that the agreement of the parties was, that a conveyance effectual to pass the property agreed to be sold should be made. This is evidenced not only by the nature of the contract, but by the transfer in its incipient state. It is therefore, entirely unlike the case where the parties have done what they stipulated to do: — As in the case of a sale of lands where the vendor has made a transfer: Although he may have transferred a defective title, the vendee cannot complain that the vendor has not done what he promised to do. If there was to be no warranty, the vendee has got what he contracted for, and it was his fault or misfortune not to take one. If he was to have a warranty and has one, still he cannot complain that the contract had not been executed, although the vendor's title was not good. I feel bound, therefore, to apply that universal principle of Equity, *288 which forbids one party to take the benefit of a contract, whilst he entirely withholds performance on his own part; and to arrest the money until he shall have (476) performed it. For I look upon the deed in its present dress, as unexecuted for the purpose of having the effect intended; as an instrument sealed, but not delivered, where individuals under no incapacity to contract, are the parties. For as the Common Law has declared a delivery necessary to constitute a deed between them, the General Assembly have declared a private examination necessary to make a deed, or an effectual deed (which is the same thing) from a married woman, to pass her lands. The rule in each case flows from the same source, the legislative will, although evidenced in a different manner.
As to the bond being payable to the wife's son, or in trust for him, it makes no difference. He is a mere volunteer, and must stand in place of the vendor. The renewal of the bond by the administrator of the purchaser to the same person, does not alter its original nature. In Equity it is the same: each given upon the same consideration, and liable to the same rules of Equity. The demurrer must be overruled, and the Defendants answer.