Fitzgerald v. Allen

Estoppel. "Warranty deed held to estop wife and her heirs from asserting interest subsequently acquired by inheritance. Since an outstanding paramount title acquired by a warrantor can-, not be used to defeat the title of the warrantee, but will inure to the behefit of the warrantee, a warranty deed purporting to convey the fee in lands not a homestead, and in which. the wife joins the husband, will estop the wife and her heirs from asserting against the warrantees any interest in such lands which she may have subsequently acquired by inheritance.

Appeal from chancery court of Coahoma county. Hon. F. E. Williams, Chancellor. Bill by F. H. Fitzgerald and others against Henry Thomas Allen and others. From a decree of dismissal, complainants appeal. Mrs. Lula Faye Cammack, by joining in a deed with her husband, which purported to convey a fee simple title to lands in which he had only a life estate, and which she acknowledged as a wife, only, was not estopped' to set up her title subsequently acquired through the true owner of the fee, Leonard Cammack, the remainderman. McDonald et al. v: Rothgeb et al, 112 Va. 749, 72 S. E. 692; Ann. Cases 1916B, page 63; Ghilds v. McChesney, 89 Am. Dec. 549; Jackson v. Vanderhaden, 8, Am. Dec. 378; Sanford v. Kane, 133 111. 199; Menard v. Gabble, Ann. Cases, 1916A, 802; Ogre v. Street, Ann. Cases, 1916E, 518; Griffin v. Sheffield, 38 Miss. 359; Strawn v. Strawn, 50 111. 33; Danbrant v. Va. G. & I. Go., 23 L. Ed. (U. S.) 927; 18 Corpus. Juris. 155. In Bull v. Beiseker, 16 N. D. 290, 113 N. W. 870, 14 L. B.. A. (N. S.) 514, it was held, that where a covenanter has neither title nor possession, the covenants do not run with the land, so as to transfer the cause of action for the breach thereof, to remote grantees by operation of assumed conveyances of the property by the execution and delivery of deeds purporting to convey the same. The -court declares that the foregoing principle is supported by the overwhelming weight of authority, and cites a number of cases to sustain it. Among the citations will be found the leading case of Mygatt v. Coe, 152 N. Y. 457, 46 N. E. 949, 57 Am. St. Rep. 521, which is strongly in point. Nisodorf v. Blaunt, 111 Ya. 127, 68 S. E. 258. We most earnestly submit that the above opinion cor rectly pronounces the law to govern the case at bar. We have carefully studied it from every angle and are at a loss to distinguish it. A married woman, who unites with her husband in a warranty deed of his land, merely to enable him to pass the title free from her inchoate right of dower is not estopped from asserting in her own favor an after-acquired title to such land. , Bafford v. Kane, 133 111. 199, 23 A. L. R. 602, affirming Sanford v. Kane, 24 111. App. 504; Raymond v. Holden, 2 Cush. 264; 10 Ruling Case Law, par. 58, note 3. In Menard v. Campbell, supra, among other things, the court said: “In Arthur v. Coverly; 98 Mich. 82, 56 N. W. 1102, it was held that a married woman uniting with her husband in a warranty deed of her property is liable on the covenant when she obtains all the consideration, which in that case was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband’s interest being simply a life estate. The burden was upon the complainant to show for what purpose she joined in the. instrument and to prove it clearly and to show that she had brought herself within the rule, above set forth. Mutual Benefit Life Ins. Co. v. Wayne Co. Ba-v. Bank, 68 Mich. 116, 35 N. W. 853. This the complainant has failed to do, and it necessarily follows that the wife’s signature to the instrument was a nullity, and did not bind her subsequently acquired title. Childs v. McChensey, 20 Iowa 431, 89 Am. Dec. 545; Soho finer v. Grutsmaoher, 6 Iowa 137; Erickson v. Johnson (la.), 152 N. W. 575. We are not unmindful qf the fact that some of the cases referred to are based in whole or in part upon certain enabling statutes, as has been said before, and are not to be understood as citing them to be exactly in point, but only to the extent of the principle involved. Mississippi Cases. The following are cases decided by the supreme court of this state which bear upon the question of after acquired title: Torrey v. Minor, S. & M., Ch. 489; Bush v. Cooper, 26 Miss. 599; Clark v. Slaughter,. 34 Miss. 65; Wrightmcm v. Doe, 24 Miss. 675; Andrews v. Andrews, 16 S. W. 346; Kyser v. Earhart, 64 Miss. 492; Griffin v. Sheffield, 38 Miss. 359. The raison d’etre of estoppel in regard to after-acquired title is to prevent circuity of action. This being so, would Mr. Allen have had a right of action against Mrs. Cam-mack? Could he have gone into equity against her — would it lie in his mouth to say he was imposed upon directly or indirectly by her? He knew his rights fully, being advised thereon by eminent counsel. He knew the limited interest the husband had in the land, or is- charged under the law with notice; he was cognizant of what interest, she, the wife, had in the property. It would ill become him to assume an air of injured innocence under the circumstances of this case. Had the rights of a third party intervened, a different aspect might appear. But here Allen still has the property and no one but himself can be damaged by what has occured. The Code, section 2300, Hemingway’s (section 2799, Code of-1906) prescribes the form for a married woman’s acknoAvledgment. It is there set out that when a married woman unites with her husband in the execution of an instrument and acknowledges the same in one of the forms above sanctioned, she should be described in the acknowledgment as his wife; in all other respects, and when she executes any instrument affecting her separate property, real or perse - \ her acknowledgment shall be taken and certified as if she were sole; etc. Mrs_. Cammack had no interest in the land in question, other than the veto right of a homestead, and this Mr. Allen knew full well. Everybody connected with the transaction knew that she was only connected with the matter to that extent; and she signed and acknowledged the deed according to the requirements of the statute. In the body of the deed it is recited: Lula Faye Cammack, his wife, and in the acknowledgment, that the within named John S. Cammack and Lula Faye Cammack, husband and wife. From this it is plain- to see that no one was deceived. Section 2287 of Hemingway’s Code (section 2774, Code of 1906) reads as follows: “All alienations or warranties of land purporting to convey or pass a greater estate than the grantor may lawfully convey or pass, shall operate as alienation or warranties of so much of the right and estate in such lands as the grantor could lawfully convey, but shall not pass or bar the right to the residue of the estate purported to be conveyed; nor shall the alienation of any particular estate upon which a remainder may depend, whether such alienation be by will or other writing or union of such particular estate with the inheritance by purchase or by descent, so operate by merger or otherwise as to defeat, impair or in any way affect such remainder. The son of Mr. and Mrs. Cammack, Leonard, was the remainderman, who was to succeed to the property upon the death of his father. Lula Faye Cammack, the wife and mother, had no estate in the property which she could convey or pass. It was not within her power to1 do anything with the property in any manner whatsoever. This was known by all as a matter of law. Conclusion. We submit that first, Mrs. Lula Faye Cammack had a homestead interest in .the property which is a mere veto power; second, that she could not have been sued for breach of any convenant by the grantee, Mr. Allen; third, that she acknowledged the instrument as wife merely, and did not participate in the transaction further than to sign the instrument; fourth, that Mrs. Lula Faye Cammack did not know of the proposition of Campbell to give a deed to her and her husband, and that she did not accept or agree to same; fifth, that Mrs. Cammack had no right coupled with an interest to any estate of the remainderman; sixth, that the equities are equal and Allen knew he was borrowing-trouble when he bought this land with its defective title. It is a pure proposition of law, there is no question of intention involved except the intention of Mrs. Cammack to sign as a life tenant, and no presumptions are to be indulged in, in view of the fact that all parties to the transaction were fully advised that she neither owned nor asserted any interest in the land under the will. Would Mrs. Lula Faye Cammack have been estopped to assert the after acquired title? If so, upon what ground — fraud, misrepresentation, expediency, or public policy? The first two are untenable, and the second two are not sufficient for laying-down a rule of property. We contend that the authorities justify one in saying that she is not so estopped. In view of the foregoing, the decree of the chancellor was manifestly erroneous and should be reversed and the relief asked for in the original bill of complaint should be granted. We stated at the outset, that the facts in this case were simple, but an accurate statement of them has required sometime. So far as the legal phase of the case is concerned, we think that they can be restated with great brevity as follows; On June 10, 1907, John S. Cammack and Lula Faye Cammack, executed a deed of trust containing general covenants of warranty of title, to E. B. Maxey, Trustee, for the benefit of W. S. Campbell. W. S. Campbell afterwards acquired the title to the pi*operty conveyed by foreclosure proceedings, and subsequently conveyed that title to the said John S. Cammack and Luir Faye Cammack. Thereafter, on December 19,1908, John S. Cammack and Lula Faye Cammack, sold th¿ property for value to appellees and then executed their warranty deed conveying the property to the appellees. Thereafter, the said John S. Cammack, died and according to appellant’s claims, his life estate fell in, and the remainder of the property became vested in his son, Leonard Cammack. Leonard Cam-mack died childless, leaving Lula Faye Cammack as his only heir at law. The question thus clearly presents itself, did the title acquired by Lula Faye Cammack through inheritance from her son, pass by virtue of her express warranty? We are almost tempted to say, ás this court said in the case of - Saw Mill' Company v. Douglass, 107 Miss. 678: “When the warrantor acquires an outstanding paramount title, it cannot be used to defeat the title of the warrantee, but will inure to the benefit of the Avarrantee. This is a familiar principle of law and needs no citation of authorities.” Our court has laid down this principle in a great number of cases, and we are unable to see how it can now be questioned. The cases which we find where the court has dealt with this very simple proposition of law, we list as follows: Fletcher v. Wilson, Sm. & Marshall Chancery, 376; Lotcrey V. Minor, Sm. & Marshall Chancery 489; Wightman v. Reynolds, 24 Miss. 675; Bush v. Cooper, 26 Miss. 599; darken V. Slaughter, 34 Miss. 65; Kyser v. Erhart, “64 Miss. 492; Mclnnis V. Pickett, 65 Miss. 354; Anderson v. Anderson, 16 So. 346; Bramlett v. Roberts, 68 Miss. 325; Edtoards v. Hillerf 70 Miss. 803-; Allen v. Leflore County, 80 Miss. 298; Anderson v. Wilder, 83 Miss. 606; Harris v. Byers, 73 So. 614; Miss. ■Saw Mill Co. v. Douglass, 107 Miss. 678; Code of 1906, sections 2817 and 2767. These cases all hold that under the Mississippi statutes even a quitclaim deed purporting to convey the whole title will and does convey an after-acquired title: The brief of counsel for appellants is largely an interesting discourse upon the attitude of other states with reference to after acquired titles. It is sought by appellants here to escape the force of the unbroken line of authorities to which we have just referred, upon the theory that Mrs. Cammack was a married womqn on the dates of the execution of the deeds by-her, and for that reason she is not bound by her covenants of warranty. Such an argument is in direct conflict with our statute abolishing the disabilities of coverture. Section 2517 of the Code of 1906, and 2051 of Hemingway’s Code, provides as follows: “Disabilities of Coverture Abolished — Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on the rights of property of the Avife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property Avhich she could laAvfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy, and to make any contract in reference to it, and to bind herself personally and to sue and to be sued, with all the rights and liabilities incident thereto, as if she were not married.” Reference is made1 as we have said in the brief of counsel for appellants, to a number of cases decided by the courts of this country upon the -question of a married woman being bound by her covenants of warranty. Although we do not feel that these cases can have any persuasive effect in this case, because of the force of our statute abolishing the disabilities of coverture, we shall refer to a few of them, in order to make it clear to the court that all these cases have been decided upon the statutes of the states where they have arisen. In a note to the case of Watkins v. Watson, 22 L. E. A. 779, we find the following at the bottom of page 781: “She' is estopped by her covenants from procuring all, or taking a superior title in her husband’s land, or her own where the statute authorizes her to contract as a femme sole” Sandwich Mfg. Co. v. Zelhner, 48 Minn. 408; Graham v. Meek, 1 Orr. 325; Yerkes v. Hadley, 22 L. E. A. 363; Guertin v, Mornbleau, 144 111. 32; Knight v. Thayer, 125 Mass. 25; Little v. Holland, 6 N. E. 647. See, also, Note in 57 A. S. E. 171; 8 Euling Casé Law, 1058-9. The rule is laid down in 13 Euling Case Law, page 1326, as follows: “If a married woman is given full power to contract as if she were a femme sole, there seems to be no reason why her covenants of warranty in her duly executed deed conveying her own land should not operate to pass her after-acquired title and it has been so held. Citing among others, the authorities above mentioned. After a somewhat exhaustive examination of the authorities cited by counsel for appellants, as well as the other authorities we have cited, we are conducted to the conclusion that the states of the Union group themselves naturally,' under several different classes, upon the question as to whether or not a warranty deed by a married woman will pass her after-acquired estate. These classes are as follows : 1. Those states whose courts have held that a married woman is estopped by her warranty deed to claim any after-acquired title. States in this group have statutes similar to ours abolishing the disabilities of coverture, and we ask the court to examine the cases which we now cite, so that it may be seen that this is correct. (A) Dakota: Yerkes v. Hadley, 5 Dak. 324, 2 L. E .A. 363; (B) Georgia: Amos v. Cosby, 74 Ga. 793; (C) Illinois: Guertin v. Mornbleau, 144 111. 32, 33 N. E. 49; Lake Erie, etc., y. Whitthaus, 40 N. E. 1014; (D) Indiana: Little v. Eoagland, 6 N. E. 647; (E) Massachusetts: Knight v. Thayer, 125 Mass. 25. With reference to this case, it is to be noted that the ride prior to the passage of the statute was that,a married woman was not under any circumstances, bound by her covenants of warranty. (F) Minnesota:' Sandwich Mfg. Go. v. Zeller, 51 N. W. 879; (Gr) Oregon: Keady v. Martin, 1916A. Ann. Cas. 796, 69 Ore. 299, 137 Pac. 856. 2. Another group of states is composed of those where statutes have specifically provided that a husband or wife joining in a conveyance of the property of the other, shall not be bound by the covenants in the conveyance, unless it is expressly so stated on the face thereof. We find the following states which we think, fall under this heading: (A) Alabama: Cotízales V. EaMl, 49 Ala. 260, 20 A. K. 282; Prior v. Loeb, 119 Ala. 450, 24 So. 714; (B) Iowa: Childs v. McChensey, 20 Iowa, 431, 89 A. D. 546; O’Neal v. Yanderburg, 25 Iowa, 104; Erickson v. Johnson, 152 N. W. 575; Thompson v. Merrill, 10 N. W. 796. 3. The other group of states would be those where married woman are still under disabilities of coverture, and therefore unable to contract; and, also, those where married woman have been by statute emancipated in so far as their separate property is concerned, but have not been authorized to contract generally. Among these states are: (A) Arkansas: Jefferson v. Edrington, 53 Ark. 545, 14 S. W. 99; (B) Michigan: Menard V. Campbell, 186 Mich. 583; 1916A, Ann. Cas. 802; .(C) New York: Jackson v. Yanderhaden, 17 John. 167; 8 A. D. 378; Witham v. Schaclc, 11 N. E. 649; (D) Vermont: Goodenough v. Fellow, 53 Vt. 102. Under this classification of cases would fall the case of Griffin v. Sheffeld, 38 Miss. 389, decided at a period in the history of the state when our statute abolishing the disabilities of coverture had not been passed, and married women were not allowed to make contracts. It would, therefore, appear to be clear, that where the disabilities of coverture had been removed, a married woman is as free to contract as a married man, and that the courts have so held, and that where it appears that the courts of any of the states have announced a limitation upon the right of a married woman to contract and to be bound by the general covenants of warranty in a deed executed by her, such decisions rest for their reason upon the peculiar statutes of the particular state which may so have rendered any such decision. The decisions of courts contrary to our contention are only of those states where the legislature has failed to enact statutes removing the disabilities of coverture, or rest upon the particular and peculiar language of the statute of the state where the disabilities have been removed partially and to a limited extent only. There is no such question to be considered in Mississippi, where the legislature has emancipated the married woman without.restriction of any sort, and where she has been expressly granted , the power to contract as though a femme sole. We earnestly contend, therefore, that on this record and under the great, and indeed unbroken weight of authority in our favor, the judgment of the lower court should be affirmed.