Craven County NcArchives Court.....Patrick & Granger, Geo. Lane V. 1819
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 3:49 pm

Source: Nc Reports
Written: 1819

Geo. Lane et al v. Daniel Patrick and Ruffin Granger

From Craven

November Term 1819

Husband and wife being seised of a tract of land in right of the wife, agreed 
to convey the same in fee simple to a purchaser for a fair consideration: and, 
in pursuance of this agreement, they conveyed by deed the tract of land to the 
purchaser, who executed his bond for the purchase money. The husband died, and 
the wife not having been privily examined touching the execution of the deed 
by her during her coverture, availed herself thereof, entered on the land, 
expelled the tenant who held under the purchase, and avoided the estate. The 
purchaser died, and his administrator filed a bill praying to have the payment 
of the purchase money enjoined. Demurrer to the bill overruled; for

The purchaser contracted for the wife's estate of inheritance, not for the 
husband's freehold in her right. He obtained a conveyance, which transferred 
only the husband's estate. To make it good to pass the wife's estate, her 
private examination was necessary.

The nature of the contract, and the transfer in its incipient state, shew, 
that the agreement of the parties was, that a conveyance effectual to pass the 
property agreed to be sold should be made. It is, therefore, unlike the case 
where the parties have done what they stipulated to do; as where the agreement 
was, that the transfer should be without warranty, and such transfer was made, 
and the title proved defective; the purchaser could not complain that the 
vendor had not done what, he had promised to do. 

The Court will therefore apply that, universal principle of Equity, which 
forbids one party to take the benefit of a contract, whilst he withholds 
performance on his own part; and will arrest the money until he shall have 
performed it.

The deed must be considered as unexecuted for the purpose of having the effect 
intended; as an instrument sealed, but not delivered, where individuals under 
no incapacity to contract are the parties. For as the Common Law has declared 
a delivery necessary to constitute a deed between such parties, the General 
Assembly have declared a private examination of a married woman necessary to 
make her deed effectual to pass her lands.

This was a bill filed in the Court of Equity for Craven by George Lane, 
administrator of the estate of Charles Jones, deceased, and by Lewis Jones and 
others, heirs at law of the said Charles. The bill charged that George W. 
Daniel and Sarah his wife, being seised in the right, of said Sarah of a tract 
of land situate in the county of Lenoir, and containing 75 acres, agreed to 
convey the same in fee simple to one Charles Jones, in consideration of $400, 
one half of which was to be secured to one Silas Jones, an illegitimate son of 
the said Sarah Daniel, and the other half to the said George W. Daniel. That 
in pursuance of this agreement, George W. Daniel and Sarah his wife, by deed 
conveyed to the said Charles Jones the tract of land in fee simple; and the 
said Charles Jones executed two obligations with Tally Moseley, his surety 
each for the sum of $200; one payable to George W. Daniel, and the other to 
Daniel Patrick, guardian of the said Silas Jones. That Charles Jones soon 
after died intestate, leaving the complainants, Lewis Jones and others, his 
heirs at law and next of kin; and administration upon his estate was granted 
to the complainant, George Lane. That the obligation given to G. W. Daniel had 
been paid by the said administrator, who, being desirous of closing his 
administration, and not doubting that the other obligation given to Patrick 
for the benefit, of said Silas Jones was to be paid out, of the assets of his 
intestate, gave his own bond, with Tally Moseley his surety, to the said 
Patrick as guardian for Silas Jones, in lieu of the obligation of his 
intestate, which was thereupon given up to the administrator, and the amount 
thereof charged by him to the account of his administration, and the 
distributive shares of the next of kin thereby diminished.

The bill then charged that George W. Daniel died, leaving the said Sarah, his 
widow, surviving him; and that she, never having been privily examined 
touching the execution of the said deed by her during her coverture, availed 
herself thereof, and entered on the said tract of land, and expelled the 
tenant, who held under the said Charles Jones, and avoided the estate, and 
continued possessed thereof until her death: whereupon the same descended to 
her heirs at law.

That Silas Jones, being apprised of the circumstances, disclaimed any right to 
enforce the payment of the administrator's bond; but died soon after arriving 
at age, and administration upon his estate was granted to Ruffin Granger, who 
had instituted suit upon tho bond, and recovered a judgment in the name of 
Daniel Patrick, to whom the bond was made payable. The bill prayed for an 
injunction, which was granted; and the Defendants filed a general demurrer to 
the bill. The presiding Judge sent the question arising on this demurrer to 
this Court; and the Judges here were divided in their opinions. Henderson and 
Hall being of opinion that the demurrer should be overruled; Taylor, Chief 
Justice, contra.

Henderson, Judge: The purchaser contracted for the wife's estate of 
inheritance, not for the husband's freehold in her right, and has obtained a 
conveyance which (to make the most of it in its present form) transferred only 
the husband's estate; but might, by the private examination of the wife, have 
passed also her interest. And no doubt can exist, but that the agreement, of 
the parties was, that a conveyance effectual to pass the property agreed to he 
sold should be made. This is evidenced not only by the nature of the contract, 
but by the transfer in its incipient state. It is therefore, entirely unlike 
the case where the parties have done what they stipulated to do: As in the 
case of a sale of lands where the vendor has made a transfer: Although he may 
have transferred a defective title, the vendee cannot complain that the vendor 
has not done what he promised to do. If there was to be no warranty, the 
vendee has got what he contracted for, and it was his fault or misfortune not 
to take one. If he was to have a warranty and has one, still he cannot 
complain that the contract had not been executed, although the vendor's title 
was not good. I feel bound, therefore, to apply that universal principle of 
Equity, which forbids one party to take the benefit   of a contract, whilst he 
entirely withholds performance on his own part; and to arrest the money until 
he shall have performed it. For I look upon the deed in its present dress, as 
unexecuted for the purpose of having the effect intended; as an instrument 
sealed, but not delivered, where individuals under no incapacity to contract, 
are the parties. For as the Common Law has declared a delivery necessary to 
constitute a deed between them, the General Assembly have declared a private 
examination necessary to make a deed, or an effectual deed (which is the same 
thing) from a married woman, to pass her lands. The rule in each case flows 
from the same source, the legislative will, although evidenced in a different 
manner.

As to the bond being payable to the wife's son, or in trust for him, it makes 
no difference. He is a mere volunteer, and must stand in place of the vendor. 
The renewal of the bond by the administrator of the purchaser to the same 
person, docs not alter its original nature. In Equity it is the same: each 
given upon the same consideration, and liable to the same rules of Equity. The 
demurrer must be overruled, and the Defendants answer.

Taylor, Chief Justice, contra; I regret my inability to concur in the opinion 
of my brothers; because it best accords with my private sentiments of natural 
justice, that a purchaser should be relieved against the payment of the price 
of the land, from which he has been evicted through a defect of title. But not 
being able to arrive at such a conclusion by my views of the law, the wisdom 
of which I am bound to consider superior to any man's wisdom, I will state 
concisely the grounds of my dissent.

An injunction has been granted in the case, to stay a judgment of law, 
recovered under the following circumstances. Daniel and his wife executed to 
Charles Jones a deed for a tract, of land, of which the wife was seised in 
fee, for the price of $400; to secure which sum, two bonds were given by 
Jones, with Moseley his security, each for $200; one payable to Daniel 
Patrick, guardian of Silas Jones, a natural son of Daniel's wife, for the 
benefit of said Silas; and soon afterwards. Charles Jones, the purchaser, 
died. The bond given to Daniel has been taken up by Lane, the Complainant, who 
administered upon Charles Jones' effects. Lane gave his own bond to Patrick, 
in lieu of the intestates' bond; and upon that bond, suit has been instituted 
against Lane, by the administrator of Silas Jones, who died soon after 
arriving at full age. Upon the death of Daniel, his widow never having been 
privily examined according to the act of 1751, entered upon the land, so sold 
by her husband and herself, expelled the tenant placed on it by Charles Jones, 
and soon afterwards died seised: whereby the land descended upon her heirs. 
The consideration of the bond having thus failed. Lane, the administrator of 
Charles Jones, together with the heirs at law of the latter, seek to be 
relieved from judgment. The Defendants have demurred to the bill.

No doubt can exist as to the legal operation of the deed from Daniel and wife. 
He acquired by the marriage, a freehold interest in the land during the joint 
lives of himself and his wife; and the only effect of the deed was to convey 
to Charles Jones, such estate as Daniel had. The execution of the deed by the 
wife was a nullity in respect to her right, unless the course, which the law 
has prescribed, had been pursued, to ascertain her consent. Though Daniel's 
right only was in reality conveyed by the deed, yet it purported to operate, 
upon the fee simple of the wife, whilst Daniel endeavored to convey as much as 
by law he could do. This was the subject of the contract, and it is to be 
presumed that the purchaser was aware of the ulterior steps necessary, to 
render the deed obligatory upon the wife. Without even looking into the title, 
there were plain and notorious facts, sufficient to satisfy any purchaser, 
that Daniel was about to sell his wife's land: the deed was drawn in the name 
of the husband and wife; she was called upon to execute it, and one half of 
the purchase money was made, payable to her natural child. Here, then, was a 
full disclosure of the title which Daniel was about to sell; and fair notice 
given to the purchaser of what, was necessary to its confirmation. There is 
not the slightest ground to impute to the seller, either fraud, 
misrepresentation or concealment.

Under this statement of facts, I apprehend that, the purchaser could have had 
no remedy at Law. He had a right to ask for a warranty, or for covenants 
against all persons claiming title to the land: and if he chose to take, a 
deed without that safeguard, the rule of caveat emptor must prevail. The case 
of Bree v. Holbeck in Douglas, 654, shews, that where there is no fraud, the 
purchaser is without remedy at Law, unless his covenants provide it; and in 
Cripps v. RBeade, 6 Term 606, the distinction is taken between those cases, 
Where money paid on a consideration which has failed, may be recovered back, 
and where it cannot, excluding the cases where a regular conveyance has been 
made, to which other covenants were not to be added. With the exception of a 
vendor or his agent suppressing an incumbrance or a defect in the title, it 
seems clear that a purchaser cannot obtain any relief for any incumbrance or 
defect to which his covenants do not extend: and, therefore, if a purchaser 
neglect to have the title investigated, or his counsel overlook any defect in 
it, he is without a remedy. It has ever been held, that if one sells another's 
estate without covenant or warranty for the enjoyment it is at the peril of 
the purchaser; because he might have looked into the title; and there is no 
reason he should have an action by the law, when he did not provide for 
himself." Sugden Vendors, 35.

The privy examination is substituted for a fine, in which also the wife is 
privily examined touching her consent; and where a husband conveys his wife's 
estate in England, it is the ordinary form of the conveyance, to contain a 
covenant on his part that the wife shall pass a line.

The proper covenant here would be, that the wife shall submit to a privy 
examination. It was once the practice of the Court of Equity to decree, a 
specific execution of a covenant to levy a line; but it was very absurd to 
compel a married woman to levy a fine, when the efficacy of the conveyance is 
derived from her having clone it voluntarily. Such a practice is therefore 
abandoned; but the purchaser has still a remedy at Law, by an action of 
covenant against the husband. 1 Bos. and Pull 267.

It is also laid down in the authorities that Equity proceeds on the same 
principle with the Law, unless there be fraud in concealing the defect of the 
title. In proof of this, the strong case of Urmston v. Pale is cited, in 3 
Cruise, 91. In the more recent case of Wakeman v. Rutland, in 3 Ves. Junr. 
234, the Lord Chancellor observes, "As to the extent, of the covenants, there 
was a case about three years ago. An estate was bought; as to one moiety, 
there was a clear defect of title, which the covenant of the purchaser had 
overlooked. He was evicted of one moiety. He filed a bill in Equity, asserting 
a claim to be repaid a moiety of the purchase money, he had taken his 
conveyance with the common covenants: the eviction was not within the 
covenants. I felt the hardship, but thought I could not raise an Equity, where 
there was no covenant to warrant the title." It is held that the possession of 
the land is no evidence of title, and no person in his senses would take an 
offer of purchase from a man merely because he stood upon the ground. The 
purchaser must look to his title, and if he do not, it will be gross 
negligence. 13 Vcs. 114. 

To sustain the bill, is, in my apprehension, to alter and extend the agreement 
of the panics, not to enforce it, and to sanction a principle which goes the 
whole length of permitting the recovery back of the money which has been paid 
in the case, and in every other, where the contract has been executed.


File at: http://files.usgwarchives.net/nc/craven/court/patrickg840wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 15.2 Kb