Colcord v. Swan

Where a wife joins with her husband in the conveyance of her lands with covenants of warranty, the lands pass by the deed, and the wife is estopped by her covenants; but she is not answerable in damages for any breach of them.

This was an action of covenant broken, brought upon covenants of warranty contained in a deed, executed by the defendants, and conveying the lands of the wife. When the action was stated, the Court observed that it could not be maintained against the wife. Her executing the deed operates the conveyance of the land; but, although she is estopped by her covenants, she is not answerable in damages for any breach of them. The husband alone is liable. * The plaintiffs’ counsel then moved for leave to strike [ * 292 ] her name out of the writ and declaration, and to proceed against the husband alone. The defendants’ counsel suggested that they had not known per mission granted to strike out the names of defendants, except in actions for torts; and they observed that it would be singular that a fault, which would render the plaintiffs ’ judgment void, and which need not even be pleaded in abatement of the action, should be cured merely upon motion.