(after stating the facts). The exceptions to be considered on the appeal are to the rulings that,
1. There is no evidence that the defendant, who became himself a party to the Hen bond, had authority from the feme defendant, bis wife, to enter into such obligation or to bind hеr thereby.
2. Neither any act nor declaration of hers, superinducing the plaintiff’s action, estops her from asserting, as оwner and lessor of the land, her superior lien upon the crops for rent.
I. There is not only no ground furnished in the testimony to sustain the first exception,but the contrary is shown: Both defendants, on their examination as witnesses, say that the husband had no such authority, and his agency was limited to the renting out. of the premises, and, indeed, that the wife herself was present at the making and gave аssent to the contract, as made with the lessee when this occurred. The husband states, that at that time, Hemby expressed a wish to have some cotton-seed that were on the premises, when she replied that “ she was willing to sell the seed, if he wоuld pay for them,” and that the lessee said “he had made arrangements to get his supplies.” This arrangement about the advances was mаde between the plaintiff and the two others, on the same day, afterwards, at Kinston, on the lessee’s assurance that hе could not obtain the credit, unless the said S. T. Crossland would sign the bond; and this he did, not in the presence of his wife, and with her express disavowal of his authority, as soon as she knew what had been done.
*83 The plaintiff does not himself pretend that he had any cоmmunication with the feme defendant on the subject, and says that she did not notify him of her dissent to her husband’s action, nor does he say that when she was in his store in the Fall, he made any inquiry as to her consent to the terms on which his advances were made. The fact is vеry apparent, that the plaintiff acted on the belief that the husband owned the land, but it is not shown that the wife did or said anything to сreate the impression, or that any means were used — not even the husband asked, in whom was the title, to correct that еrroneous impression.
II. As to the .estoppel.
“A right can only be lost or forfeited,” remarks Pearson, J., in
Devereux
v. Burgwyn,
The requisites of an operative estoppel
in pais,
are said by Reads, J.; in
Holmes
v.
Crowell,
1. That the defendant knows of his title.
2. That the plaintiffs did not know, and relied on the defendant’s representations.
3. That the plaintiffs were deceived.
And he adds that some authorities require further “that the dеfendant intended to deceive.”
The proposition is repeated by Settle, J., speaking for the Court in
Exum
v.
Cogdell,
This is the doctrine applied to transaсtions in which the actors are sui juris and are under no legal incapacities. The rule is *84 more stringent when to be enforced against a married woman, whose contracts, exсept as permitted by law, are inoperative, and as they do not bind, do not create an estoppel producing the same result.
We shall not pursue the inquiry, since the subject is examined in the case of
Boyd
v.
Turpin,
delivered at the present term. Coverture is no protection against responsibility for positive acts of fraud,- or torts, when voluntary and not committed undеr the coercion, actual or presumed, of the husband.
Burnett
v. Nicholson,
But where can be detected any fraud in the feme defendant, any false representation in words or conduct, which was intended or even calculated to mislead the plaintiff in making his advances to the lessee? Her declaration made to him, “I suppose the plaintiff must have his pay first,” merely shows her misapprehension of the law in respect to the priority of the conflicting liens — nothing more — as is immediately explained.
The difficulty is, that the plaintiff supposed the husband owned the land, and without inquiring of him or any one else, agreed with the tenant to give him the limited credit, provided the husband would unite with him in exеcuting the bond to create the statutory lien. It was his own mistake, negligently fallen into, under which he made the advances, and fоr which the feme cannot be held responsible.
The argument here undertook to separate the seal from the instrument, and give it operation as a mere written contract, and convert it into a contract as if made by the wife herself. In answer to this these suggestions will readily occur to the legal mind:
1. The contract is the personal covenant of the husband and, as such, binds him.
2. If divested of the seal, and wе know of no principle upon which this can be done by others than the parties to it, it would remain in form and effect the сontract of the same parties.
*85 3. The husband had no authority, nor did he undertake to exercise any, as conferred by his wifе, in entering into the contract.
4. All the parties understood it to be his own personal act, and binding him only, as such.
The case in our own court, Blacknall v. Parrish, 6 Jones’ Eq., 70, and the citations from Story’s Agency, are not repugnant to the views expressed, nor appropriate to the facts of the present case. In the ease referred to, a paper, signed and sealed by the owner of land, with blanks for the name of the bargainee, was placed in the hands of an agent, with parol authority to fill the blanks with the name of the purchaser and price. This he did, and it was held that the instrument, though not operative as a covenant, was operative as a contract within the statute of frauds, and could be specifically enforced. But the contract purported to be that of the principal, and remained unchanged by disregarding the presence of a seal, which was not necеssary to give it efficacy. It furnishes no support to the present endeavor to get rid of a seal, rightfully put there by the party himself, and thus not only to change the nature of the instrument, but to make it the contract of another and different person, in opposition to its express terms and to the original understanding of all the parties to it.
We discover no error in the rulings, and the judgment must be affirmed.
It is so ordered.
No error. Affirmed.