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SMITH V. INGRAM.

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in any subsequent controversy. Herman on Estoppel, Sec. 581. In Lowell v. Daniels, 68 Mass., 168; 61 Am. Dec., 448, the court, discussing this question, says: make no valid contract in relation to her estate. rate deed of it is absolutely void. Any covenants in suca separate deed would be likewise void. If she were to covenant that she was sole, was seized in her own right and had full power to convey, such covenant would avail the grantee nothing. She could neither be sued upon them nor estopped by them. The law has rendered her incapable of such contract, and she finds in her incapacity her protection; her safety in her weakness. Her most solemn acts, done in good faith and for full consideration can not affect her interest in the estate or that of the husband and children." See also Pierce v. Chase, 108 Mass., 254. In Harden v. Darwin, 77 Ala., 481, it is said by the court: "It has been uniformly held that a married woman is not estopped from asserting the invalidity of a conveyance of her property, not executed in the mode required by the statute, though she has received a valuable consideration, and her vendee has been let into possession; and that a court of equity will not enforce it against her, as an agreement to convey." Railroad v. Stephens, 96 Ky., 401; 49 Am. St. Rep., 303. The covenant binds the covenantor to warrant and defend the title which passes by the deed and to answer in damages if the title fail or proves defective. It relates to the title or estate of the covenantor, which he undertakes to convey and not to the validity of the deed by which it is transferred. The purchaser is presumed to know that a married woman is not bound by a deed without her privy examination, and if he takes a conveyance imperfectly executed or acknowledged by her, it is his own misfortune if not his fault. Towles v. Fisher, 77 N. C., 437. We think the principles laid down in this court in Williams v. Walker, 111 N. C., 604, are conclusive against the defend

SMITH V. INGRAM.

ants in this case. While the precise question we are discussing was not involved in that case, it affords a perfect analogy for our guidance and is sufficient in all respects to sustain our decision on this rehearing. In the case of Collins v. Benbury, 25 N. C., 285; 38 Am. Dec., 722, it was held by this court, that a conveyance which failed to pass the land and was merely void could not operate as an estoppel, and this must needs be so.

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

SMITH v. INGRAM.

covenant of warranty as containing sufficient words for that purpose. The grantor was sui juris. In Basford v. Pearson, 89 Mass., 504, there was no reference to an estoppel as the action was brought to recover damages for a breach of the covenant. The question in our case is not whether Mrs. Smith is liable for damages upon the covenant, but whether she is estopped from claiming the land.

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

SMITH V. INGRAM.

ment of which is obligatory upon us. After careful examination of the case we can find no error in the former decision of this court.

Petition Dismissed.

CLARK, C. J., 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 Word. Wheeler, 111 N. C., 231, and Taylor v. Sharp, 108 N. C., 577. Also to what is said in the concurring opinion in Vann v. Edwards, 128 N. C., pp. 425435, 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

SMITH V. INGRAM.

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(The Code, Secs. 148 and 163), and a further approximation to the Constitution was made by Chap. 617, Laws 1901. Finger v. Hunter, 130 N. C., 529. The Constitution, Article X, Section 6, in its terms would take them out of the class of those non sui juris in all respects, as has been done in England (where the conception of these disabilities first arose) and in so many of the States of this Union, among them our neighboring States, Virginia and South Carolina, in which last this contract was me le.

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 benefitting 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

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