51 S.E. 909 | N.C. | 1905
This case was before the court at Spring Term, 1904, and is reported in 134 N.C. at page 517. The facts are fully stated (216) in the opinion of Mr. Justice Connor. It is a matter of surprise that the interesting question of estoppel discussed upon this bearing should not have been presented upon the former hearing. It is decisive of the case and bars a recovery by plaintiff of any part of the land conveyed in the deed from Esther Weeks and seven of her children, on 1 June, 1863, to Brittain A. Edwards. The deed was never signed or executed by Betsy Ann Raynor, the remaining child, nor was the privy examination of the three married women, Susan Williford, Pherebe Williford and Mary J. Jones, ever taken. During *189 1899 all the children of Esther Weeks, including said married women, executed a deed to the plaintiff, Samson Weeks, for the same land. We are of opinion that the plaintiff is estopped from setting up the outstanding title thus acquired against the defendants who claim under the deed to Brittain Edwards. The husbands of the married women did not sign this latter deed and no privy examination was taken. The deed is void as to them and is to be treated just as if neither of the femes covert HAD signed it. As to Samson Weeks, the deed has been adjudged in this cause to be a valid and binding conveyance; and it is sufficient in form to estop plaintiff from setting up against those claiming under it the outstanding title thus acquired.
An ordinary quitclaim, or release deed, containing no covenant whatever, vests in the grantee only such title as the grantor was seized of at the time of the execution of the deed. If such grantor subsequently acquires an outstanding title, it does not inure to his grantee in the quitclaim deed. The deed of 1 June, 1863, is not in form a quitclaim or release. It is a bargain and sale for the joint consideration of $1,000, and purports to convey to the grantee in fee a good and indefeasible title to the entire 208 acres therein described. It makes no mention of the individual interest of the grantors, but it is a joint conveyance of the entire body of land, in which each grantor undertakes to convey the entire land in fee to the grantee. The deed contains a clause of warranty wherein the grantor jointly, as well as severally, warrant and (217) defend to the grantee. his heirs, etc., the "above bargained land and premises from the lawful claims of any and all persons whatsoever." At the time Samson Weeks executed the deed of 1 June, 1863, he was a minor, but this Court has held that his deed was voidable and not void, and that consequently his failure to disaffirm during the thirty-six years between 1 June, 1863, and 1 June, 1899, made the deed a valid and binding conveyance on his part. It may be possible that the minority of plaintiff, if pleaded, would bar a recovery in an action upon the contract of warranty for damages for an ouster, but, if that be true, it would not prevent the operation of the entire deed as an estoppel. A rebutter arises from a warranty. Estoppels arise in cases where there may be no warranty. While it might be that a personal recovery can not be had upon this warranty, yet it is a part of the instrument and may be considered as showing the real intent and purpose of the parties in respect to the land conveyed. As between the parties to a deed of bargain and sale, the seizin is to be considered in law as passing because the bargainor is estopped from showing that he was not seized of the title which the deed purports to convey, and if he was actually seized of such estate it was transferred by the statute of uses. As Judge Henderson tersely *190
says, in Taylor v. Shufford,
Reversed.
Cited: Scott v. Henderson,
(219)
