44 S.E. 643 | N.C. | 1903
Lead Opinion
This is a petition to rehear the above entitled case which was decided at February term, 1902, and is reported in 130 N. C., 100. On the 21st day of January, 1818, the plaintiff being the owner of the land in controversy, which is situated in this State, joined with her husband in the execution of an unsealed paper-writing by which they professed to convey the said land for a consideration received by her to one Lindsay Hursey who afterwards conveyed to the defendant A. Leach. The other defendants claim their shares in the land by mesne conveyances from Leach.
At the time of executing the paper-writing to Hursey the plaintiff and her husband were citizens of the State of South Carolina and were domiciled in that State and Hursey was a citizen of this State and domiciled therein. The paper-writing was proved by witnesses, there being no acknowledgement of it or privy examination of the wife. There was a general covenant of warranty in the deed. By the Constitution and Laws of South Carolina, in force at the time the paper-writing was executed, a married woman could purchase and convey real property as if she were unmarried, and her deed to the same could be proved by witnesses without privy examination and when thus proved and registered was binding upon her. The plaintiff’s husband died since this suit was brought.
It may be assumed that if the lands bad been situated in South Carolina the paper-writing executed by the plaintiff to Lindsay Hursey was valid and effectual for the purpose
There is a marked difference between the validity of a covenant of warranty where the question is whether the cov-enantor is liable in damages for a breach of the covenant, treated as a mere personal contract, and its validity for the purpose of creating an estoppel against the covenantor to claim the land which he had sold and conveyed and the title to which he has warranted. In the one case, the remedy is by an action on the covenant which sounds only in damages, and in the other the covenant is considered, not as passing the estate, if we speak with technical accuracy, but as concluding the party, who has affirmed that he had the title at the time of the conveyance and has agreed to warrant and defend it, from afterwards disputing that fact, or from asserting a title in opposition to the one he professed to convey, but while the estoppel may not have the legal effect of transferring the title to the covenantor, it indirectly accomplishes that result. Whatever may be the rule with reference to the law governing the validity of a covenant considered as a personal contract, for the breach of which damages may be recovered, whether it is the law of the place where the property with reference to which tire covenant is made is situated, or the law of the place of the contract, we need not decide in this
If the question of estoppel is to be decided by the law of this State, as we hold it must necessarily be, it follows that it cannot have the effect, either directly by passing the estate or indirectly by concluding the plaintiff of preventing her recovery in this case. A ruling which would give to the covenant the force and effect the defendants contend it should have, would be in flagrant violation of the spirit and letter of our law in regard to the transfer of real property by married women. We will always in comity enforce the laws of another State, when the-rights of the parties should be determined according to the place where the contract was made, or where the transactions, out. of which those rights arose, took place; but we cannot enforce the laws of a foreign jurisdiction when they conflict with our own laws in a matter concerning property situated in this State. If we should say that the covenant works an estoppel which concludes the plaintiff and thereby divests her of the title to the property, we would decide in effect that she had done indirectly what she could
The defendants cannot avail themselves of the covenant, because it was not made directly with them but with Hursey and there has been no assignment of the covenant by him to them. It is true that a covenant of warranty is in the nature of a real covenant and runs with the land, even though the word “assigns” is not mentioned therein. Wiggins v. Pender, at this term. But the defendants can take nothing by this principle as the deed of the plaintiff was absolutely void and the land, or more properly speaking the title or estate, did not pass and, of course the covenant cannot be said to have passed to the defendant with the land. The covenant of warranty is incident to the estate and as the defendants acquired no estate it follows that they derived no advantage in any way from the covenant. Kercheval v. Triplett, 1 Marsh. (Ky.), 493. If it is a binding covenant at all it is nothing more than a covenant in gross or one detached from the land and could not have passed to the defendants except by an assignment. When the deed of a married woman fails as a conveyance because of the non-joinder of her husband or for any other reason, it is ineffectual for all purposes and cannot be relied upon as an estoppel or ground for recovery
The defendants further contend that plaintiff is estopped by her act in permitting Hursey and the defendant to take possession of the land and make valuable improvements thereon. We have not been able to find anything in the record upon which they can base this contention, but if there were facts sufficient for that purpose, we would be unable to agree with the defendant. A married woman is no more estopped by her acts in pais than by her covenant of warranty. This court has said that no one can reasonably rely upon the acts and representations of a married woman, at least those which are contractual in their nature, as he must know that she is not bound thereby, and “it is only in the case of a pure tort, altogether disconnected with the contract, that an estoppel against her can operate.” Towles v. Fisher, 77 N. C., 438; Scott v. Battle, 85 N. C., 184; 39 Am. Rep., 694; Williams v. Walker, 111 N. C., 604; Railroad v. McCaskill, 94 N. C., 746.
We have examined with care the authorities to which our attention has been called and do not think that they support the contention of the petitioner as to the estoppel arising from the covenant of warranty. We make special reference to two of them. In the case of Railroad v. Conklin, 29 N. Y., 587, the question as to the valid execution of the deed was not raised, but the point was whether the words of the deed were sufficient to. operate as a conveyance of the property and the court held that if they were not resort could be had to the
We have given this case most anxious thought and consideration not only because of the interesting and important questions involved, but because of the. great hardship and apparent injustice the defendants may suffer as the result of our decision based upon the application of fixed legal principles to their case.
Whether the defendants can have equitable relief is a question not now before us for adjudication. Such relief has been granted in a case closely resembling this in its facts and circumstances. In that case the court fully recognized the invalidity of a deed executed by a married woman and based its decision upon the ground that the right to- equitable relief or to compensation for improvements to the extent that they had enhanced the value of the land did not involve the enforcement of a contract either directly or indirectly, but simply denied to- her the use and enjoyment of property for which she had paid nothing and which she acquired by the repudiation of her deed. Preston v. Brown, 35 Ohio St., 18. Whether this is a correct principle and the case just cited and others of a like tenor are in accord with our decisions and should be followed by us is a question which if it should ever arise we will leave open for future consideration and entirely free from any expression or even intimation of opinion by us.
However much we may regret the unfortunate situation of the defendants we can not grant them any relief as the matter is now presented without abrogating well settled principles and violating the plain provisions of our statute, the enforce
Petition Dismissed.
Dissenting Opinion
dissenting. Refers, without repeating them, to the views expressed in the dissenting opinion at the former hearing, Smith v. Ingram, 130 N. C., 108-115, and to the opinion of the court in Wood v. Wheeler, 111 N. C., 231, and Taylor v. Sharp, 108 N. C., 377. Also to what is said in the concurring opinion in Vann v. Edwards, 128 N. C., pp. 425-435, and the dissent (concurred in by two members of the court) in Williams v. Walker, 111 N. C., p. 613. There are some decisions of this court as to the rights of married women which are hard to be reconciled with the liberal provisions of Section 6, Article X, of the Constitution, which has been owing doubtless to the fact that the judges who occupied this bench in the years first succeeding its adoption, had been' thoroughly imbued with the common law ideas as to the incapacity of married women and the failure of the Legislature to change the language of one or two provisions in statutes which had been passed in conformity with the former Constitution, but which are repugnant both to the spirit and the letter of the present Constitution. This has not escaped the notice of the court in Bank v. Howell, 118 N. C., 273; Finger v. Hunter, 130 N. C., 529, and other cases, and has been discussed in the dissenting opinion in Weathers v. Borders, 124 N. C., 615-619, and Walton v. Bristol, 125 N. C., pp. 426, 432, to which reference is made without repeating what is there said.
By Chapter 78, Laws 1899, the General Assembly took married women out of the class of incompetents and from the companionship of “infants, idiots, lunatics and convicts,” in which they had been placed by the Statute of-Limitations
The majority of the court being of opinion that the plaintiff should recover back this land it would seem elementary justice and equity that she should pay for the betterments placed thereon, Thurber v. LaRoque, 105 N. C., 301, and indeed should render compensation for the enhanced value of the land, Railroad v. McCaskill, 98 N. C., 526; Preston v. Brown, 35 Ohio St., 18, though these matters are not now before us. Certainly this should be so here, for the plaintiff received the money for the land under a contract made while residing in a State where she was sui juris, and liable upon her contracts as if a feme sole. Upon her repudiation of the conveyance, she should not profit by her breach of contract, but should be held liable for the damage caused thereby, like all others who are sui juris.
She sold the land living where she had the unrestricted right to sell it, and received the agreed price, $130, her husband joining in the deed. She now wishes to recover the town of Star which has been built upon the land, with all the houses and other improvements placed upon it and bene-fitting further by the enhanced value given to the land, upon the technical ground that her privy examination was not taken when as a matter of fact, the sale was her free act and deed and she has acquiesced in such sale since 1878, when it was made. There is not a tittle of evidence nor any suggestion even that she did not understandingly and wittingly
Lead Opinion
CLARK, C. J., dissenting.
This is a petition to rehear the above-entitled case, which was decided at February Term, 1902, and is reported in
At the time of executing the paper-writing to Hursey the plaintiff and her husband were citizens of the State of South Carolina and were domiciled in that State, and Hursey was a citizen of this State and domiciled therein. The paper-writing was proved by witnesses, there being no acknowledgment of it or privy examination of the wife. There was a general covenant of warranty in the deed. By the Constitution and laws of South Carolina in force at the time the paper-writing was executed a married woman could purchase and convey real property as if she were unmarried, and her deed to the same could be proved by witnesses without privy examination, and *676 when thus proved and registered was binding upon her. The plaintiff's husband died since this suit was brought.
It may be assumed that if the land had been situated in South Carolina the paper-writing executed by the plaintiff to Lindsay Hursey was valid and effectual for the purpose of passing the (961) land to the latter, and further, that the plaintiff, according to the laws of that State, would be bound by the covenant of warranty. But as the land is situated in this State, the transfer of it must be governed by our law. It seems to be conceded that the title to the land did not pass by the mere force and operation of the deed as a conveyance; but the defendants contend that the plaintiff is estopped by the deed, and especially by the covenant of warranty, to claim the land, as her covenant is valid and binding on her under the laws of South Carolina where she resided and had her domicile at the time she entered into it.
There is a marked difference between the validity of a covenant of warranty where the question is whether the covenantor is liable in damages for a breach of the covenant, treated as a mere personal contract, and its validity for the purpose of creating an estoppel against the covenantor to claim the land which he had sold and conveyed and the title to which he has warranted. In the one case the remedy is by an action on the covenant which sounds only in damages, and in the other the covenant is considered, not as passing the estate, if we speak with technical accuracy, but as concluding the party, who has affirmed that he had the title at the time of the conveyance and has agreed to warrant and defend it, from afterwards disputing that fact, or from asserting a title in opposition to the one he professed to convey; but while the estoppel may not have the legal effect of transferring the title to the covenantor, it indirectly accomplishes that result. Whatever may be the rule with reference to the law governing the validity of a covenant, considered as a personal contract, for the breach of which damages may be recovered, whether it is the law of the place where the property with reference to which the covenant is made is situated, or the law of the place of the contract, we need not decide in this case, for it is sufficient for (962) the purpose of this appeal to hold, as we must, that if the covenant is to be regarded as an estoppel affecting the title, it must be governed by the law of the State where the property is situated, and in this case by the law of this State. Minor's Conflict of Laws, sec. 185; Riley v. Burroughs,
If the question of estoppel is to be decided by the law of this State, as we hold it must necessarily be, it follows that it cannot have the effect, either directly by passing the estate or indirectly by concluding the plaintiff, of preventing her recovery in this case. A ruling which would give to the covenant the force and effect the defendants contend it should have, would be in flagrant violation of the spirit and letter of our law in regard to the transfer of real property by married women. We will always in comity enforce the laws of another State, when the rights of the parties should be determined according to the place where the contract was made, or where the transactions out of which those rights arose took place; but we cannot enforce the laws of a foreign jurisdiction when they conflict with our own laws in a matter concerning property situated in this State. If we should say that the covenant works an estoppel which concludes the plaintiff and thereby divests her of the title to the property, we would decide in effect that she had done indirectly what she could not do directly. "The wife cannot subject her (963) separate real estate or any interest therein to any lien except by deed in which the husband joins, with privy examination as prescribed by law; and she will not be allowed to do indirectly what the law prohibits her doing directly." Thurber v. LaRoque,
The defendants cannot avail themselves of the covenant, because it was not made directly with them, but with Hursey, and there has been no assignment of the covenant by him to them. It is true that a covenant of warranty is in the nature of a real covenant and runs with the land, even though the word "assigns" is not mentioned therein. Wiggins v. Pender,ante, 628. But the defendants can take nothing by this principle, as the deed of the plaintiff was absolutely void and the land, or, more properly speaking, the title or estate, did not pass, and, of course, the covenant cannot be said to have *678
passed to the defendant with the land. The covenant of warranty is incident to the estate, and as the defendants acquired no estate, it follows that they derived no advantage in any way from the covenant.Kercheval v. Triplett, 1 March (Ky.), 493. If it is a binding covenant at all, it is nothing more than a covenant in gross or one detached from the land, and could not have passed to the defendants except by an assignment. When the deed of a married woman fails as a conveyance because of the nonjoinder of her husband or for any other reason, it is ineffectual for all purposes and cannot be relied upon as an estoppel or ground for recovery in any subsequent (964) controversy. Herman on Estoppel, sec. 581. In Lowell v. Daniels,
The defendants further contend that plaintiff is estopped by her act in permitting Hursey and the defendant to take possession of the land and make valuable improvements thereon. We have not been able to find anything in the record upon which they can base this contention; but if there were facts sufficient for that purpose we would be unable to agree with the defendant. A married woman is no more estopped by her acts in pais than by her covenant of warranty. This Court has said that no one can reasonably rely upon the acts and representations of a married woman, at least those which are contractual in their nature, as he must know that she is not bound thereby, and "it is only in the case of a pure tort, altogether disconnected with the contract, that an estoppel against her can operate."Towles v. Fisher,
We have examined with care the authorities to which our attention has been called, and do not think that they support the contention of the petitioner as to the estoppel arising from the covenant of warranty. We make special reference to two of them. In R. R. v.Conklin,
We have given this case most anxious thought and consideration, not only because of the interesting and important questions involved, but because of the great hardship and apparent injustice the defendants may suffer as the result of our decision based upon the application of fixed legal principles to their case.
Whether the defendants can have equitable relief is a question not now before us for adjudication. Such relief has been granted in a case closely resembling this in its facts and circumstances. In that case the Court fully recognized the invalidity of a deed executed by a *680
married woman, and based its decision upon the ground that the right to equitable relief or to compensation for improvements to the extent that they had enhanced the value of the land did not involve the enforcement of a contract either directly or indirectly, but simply denied to her the use and enjoyment of property for which she had paid nothing and which she acquired by the repudiation of her deed. Preston v. Brown,
However much we may regret the unfortunate situation of the defendants, we cannot grant them any relief, as the matter is now presented, without abrogating well-settled principles and violating the plain provisions of our statute, the enforcement of which is obligatory upon us. After careful examination of the case, we (967) can find no error in the former decision of this Court.
Petition dismissed.