Prior v. Loeb & Bro.

Prior v. Loeb & Bro. Statutory Action of Ejectment. 1. Estoppel of married woman; warranty. — A covenant of warranty in tbe .ioint deed of husband and wife to lands as tbe property of tbe husband, when neither has any interest in the lands, is not binding upon the wife, so as to pass her after acquired title. Appeal from Pike Circuit Court. Tried before Hon. J. M. Carmichael. The bill of exceptions describes the conveyance upon which the appellant, defendant below, relies as passing the after acquired title of the wife, by way of estoppel under her covenants of warranty, as follows: “On the 19th 'day of December, 1889, J. T. Prior and Ella Prior executed a deed to W. W. Prior to the land in controversy, reciting a consideration of four hundred dollars to them in hand paid by W. W. Prior, and with the following covenants of warranty, to-wit: ‘And we do covenant with the said W. W. Prior, his heirs and assigns, that we are lawfully seized in fee of the aforesaid premises ; that it is free from all incumbrances; that we have a good right to sell and convey the same to the said W. W. Prior, his heirs and assigns, and that we will warrant and defend said premises to the said W. W. Prior, his heirs and assigns forever against the lawful claims of all persons. In witness whereof, the said J. T. Prior and Ella Prior have hereunto set their hands and seals this the 19th day of December, 1889. (Signed) J. T. Prior, Ella Prior.’ ” The other facts are stated in the opinion. The court gave the general affirmative charge for plaintiff and refused a like charge requested in writing by defendant. These rulings of the court are assigned as error. Worthy, Foster & Carroll, for appellant. The deed under which appellant claims is the joint deed of husband and wife, neither having title to the lands, and not the deed of the husband to his lands in which the wife joins, and is not within the statute on covenants. Before tlie present married woman’s law her covenant of warranty was void because she had no poAver to bind herself by a covenant. — 49 Ala. 260; 89 Ala. 416. Not so under the present married woman’s law. — Code 1886, 2346. In all cases AAdiere a party is bound by the covenant in a deed, that party is bound by. the principle of estoppel by deed. — Doolittle v. Robertson, 19 So. 851; Oglesby Goal Go. v. Paseo, 79 111. 164-169; 1893 Amer. Annual Digest, p. 1835-24; 1892 lb. p.. 1843-24; Waclhins v. Watson, 21 S. W. 138; Sanchoich Mfg. G.o. v. Pellener, 21 N. W. 379; Knight v. Thayer, 125 Mass. 25; Nash v. Syofford, 43 Amer. Dec. 425. Section 2348, Code of 1886 does not impair the effect of covenants entered into under Sec. 2346. — Knox v. Ghildersburg, 86 Ala. 182-183. R. L. Harmon, contra. The case of Gonmles v. Huhil, 49 Ala. 260, is directly in point. The principle by which subsequently acquired title inures to the benefit of a former grantee with covenants of warranty in his deed, is a mere fiction of the law enforced to promote justice and right and Avill never be made use of to promote dishonesty and Avrong. A deed from parties, therefore, of third parties having no notice at the time of acquiring their rights. — -Bigelow on Estoppel, (5th Ed.) pp. 44, 441; Wade on Notice, 288 and 296; 91 Ala. 18; 71 Ala. 91; 68 Ala. 248; 75 Ala. 229. [MAJORITY — COLEMAN, J.] COLEMAN, J. The appellees instituted the statutory action of ejectment. J. T. Prior OAvned the lands in controversy, and he and his wife, on the 27th day of April, 1880, executed a mortgage with covenants of warranty, to G. C. Collier & Son. This mortgage was regularly foreclosed by a decree of the chancery court in November, 1888, and at the sale G. C. Collier became the purchaser and acquired the title. On December 5th, 1890, G. C. Collier and wife executed a mortgage on the ■same lands to The Troy Fertilizer Company, Avhich mortgage by apt words to convey the legal title, Avas transferred to J. Loeb & Bro., plaintiffs. In December, 1889, J. T. Prior and his wife Elia Prior conveyed the same lands to the defendant, W. W. Prior, with covenants of Avarranty. It will be seen from the foregoing statement of facts that at the time of the execution of the deed by J. T. Prior and Ella Prior, his wife, to W. W. Prior, neither of the grantors owned any interest in the land. In June, 1896, J. Loeb & Bro., who by foreclosure of the mortgage transferred to them had become invested with the legal title to the land, executed a conveyance with covenants of warranty to Ella Prior, wife of J. T. Prior, and subsequently and before the bringing of the suit, she reconveyed the lands to J. Loeb & Bro. We have stated the titles of both plaintiffs and defendant. The only ground of contention is, that the deed by J. T. Prior and Ella Prior executed in 1889 to W. W. Prior, the defendant, being a deed with covenants of warranty, the subsequent deed of J. Loeb & Brother to Ella Prior enured to the benefit of their vendee, W. W. Prior. Section 1514 of the Code of 1896 is as follows r “Neither the wife individually, nor her separate estate is bound by the covenant of warranty contained in any deed conveying land belonging to the husband, executed by such wife in connection with her husband; but such deed shall have the effect only of a relinquishment of dower, unless there be in such deed a special covenant of the wife, expressing her intention to bind her separate estate.” This section was construed in Curry v. Land Mortgage Co., 107 Ala. 429, in which the case of Gonzales v. Hukil, 49 Ala. 260, was quoted from and cited with approval. We fail to discover any distinction in the principle declared in these cases and the one applicable in the present case. Although the present married woman’s law was not in existence at the rendition of the first opinion, the statute limiting and regulating-the legal effect of the covenants of warranty of a married woman, who joins Avith her husband in the execution of such a deed, was the same. The principle declared in tli e Gonzales case, is directly applicable to the facts of the present case. We find no error in the record.