Dean v. Shelly & Wife

The opinion of the court was delivered, by Sharswood, J.

Had the transaction between these parties been an exchange, there would have been a warranty in law incident to it; a condition to give the party a re-entry and a warranty to enable him to vouch and recover over in value: Sheppard’s Touchstone 290. The plaintiff could have maintained ejectment not only against Shelly, but any one claiming from him; for although an assignee cannot re-enter nor vouch, but only use the warranty to rebut, yet the exchangee may re-enter upon an alienee: Noy’s Maxims 61. But exchanges have fallen into disuse in modern conveyancing. To make an assurance of that character, it is indispensable that the word exeambiwm — exchange—should be employed, which, as Lord Coke says, is so individually requisite as that it cannot be supplied by any other word or described by any circumlocution: Co. Litt. 51, b. The transaction between these parties was a mutual bargain and sale. The plaintiff took only the personal covenant of warranty of the defendants, who were husband and wife. This is an action of covenant on that warranty, and nothing is clearer than that it cannot be maintained against the wife: Chambers v. Spencer, 5 Watts 406 . It has not been contended by the able counsel of the plaintiff in error that he is entitled to a-judgment which will personally bind her. He asks for a special judgment, which shall restrict its execution to the property which was conveyed by him to the wife as the consideration for the land, the title to which he avers to have failed. He has urged that this case is within the reason of Patterson v. Robinson, 1 Casey 82. There it was held that a bond and warrant of attorney executed by a married woman to secure the purchase-money of a tract of land conveyed to her could be enforced *428 by a special judgment and execution against the land so conveyed. But there is a broad distinction between that case and this. The bond and warrant of attorney were given and accepted as a security for the purchase-money. The judgment was intended to be a lien. A mortgage by the wife duly acknowledged would have undoubtedly been effectual. This court held that under the Act of' 1848 the power of the wife to purchase “ gives her a right to contract for the payment of the consideration-money, so far as to charge the property with such encumbrances as may be agreed upon to secure its payment.” There was nothing of the kind here. The conveyance to Mrs. Shelly by her husband’s direction, as the consideration had passed from him, was in effect a settlement by him upon her, open to be attacked by his creditors upon the grounds upon which such settlements may always be impeached. The covenant of warranty was not given to secure the consideration. It was not and could not have been intended to be a lien. It is a bald case of the personal obligation of a married woman, which we are asked to enforce against her property. If Shelly had taken the conveyance to himself, and then sold it, and with the proceeds settled another property on his wife, there would be no color to levy the execution upon that. That it is the same farm which the plaintiff conveyed in consideration of the western tract, is a mere accidental circumstance, which gives the case an appearance of hardship, like that which carried the court in Patterson v. Robinson. It may be very unjust, and perhaps unlawful, in Mrs. 'Shelly to hold it against the plaintiff, but that question ought to be heard in a case in which it can be fairly considered and decided under all its circumstances, not as is proposed here by a short cut, which would preclude her from any hearing.

Judgment affirmed.