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SMITH V. INGRAM.

his claim for the value of the improvements. Merritt v. Scott, 81 N. C., 385; Johnston v. Pate, 95 N. C., 68.

We do not think, upon a careful review and consideration of the facts, as disclosed by the record, that the defendant was such a bona fide "holder of the premises under a color of title believed by him to be good" within the meaning of the provisions of the statute or within any equitable principle, as entitles him to the aid of the court in the manner now invoked by him. He bought with full knowledge of the rights of his wife and children, and if he made any improvements with his own funds on the land, which alleged fact is stoutly contested by the plaintiffs, he must, under the facts and circumstances of this case, bear the consequent loss.

We find no error in the judgment of the court below.
No Error.

SMITH v. INGRAM.

(Filed June 11, 1903.)

1. WARRANTY-Covenants-Real Estate-Lex Rei Sita-Estoppel. Where a covenant for title is regarded as an estoppel affecting the title, it must be governed by the law of the state in which the property is situated.

2. WARRANTY-Covenants-Assignments.

A covenant of warranty in a void deed is of no avail to a remote grantee, there being no assignment thereof to him.

3. HUSBAND AND WIFE-Estoppel-Warranty-Improvements.

A married woman who permits a grantee and subsequent grantees under a void deed from her to take possession of the land and make improvements thereon is not estopped thereby from recovering such land.

CLARK, C. J., dissenting.

SMITH INGRAM.

PETITION to rehear this case, reported in 130 N. C., 100. Petition dismissed.

Adams, Jerome & Armfield, for the petitioner.

McIver & Spence, Douglas & Simms, and J. A. Spence, in opposition.

WALKER, J. 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, 1878, 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 paperwriting 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 had been situated in South Carolina the paper-writing executed by the plaintiff to Lindsay Hursey was valid and effectual for the purpose

SMITH V. INGRAM.

of passing the 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

Vol. 132-61

SMITH. INGRAM

case, for it is sufficient for 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, 41 Neb., 296; Hill v. Shannon, 68 Ind., 470; Tillotson v. Pritchard, (Vt.), 6 Am. St. Rep., 95. Referring to this very question of the effect of a covenant of warranty, the court, in Succession of Larendon, 39 La. Ann., 952, says: "The rights and obligations arising under acts passed in one State to be executed in another, respecting the transfer of real estate in the latter, are regulated in point of form, substance and validity, by the laws of the State in which such acts are to have effect." The rule is said by the court to apply also to the determination of liability upon the covenant for damages.

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

SMITH V. INGRAM.

not do directly. "The wife cannot subject her 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, 105 N. C., 301. In Drewry v. Foster, 2 Wallace, 34, the court says, "To permit an estoppel to operate against her (a married woman) would be a virtual repeal of the statute which extends to her this protection, and also a denial of the disability of the common law that forbids the conveyance of her real estate by procuration. It would introduce into the law an entirely new system of conveyance of the real property of feme coverts."

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

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