Shepherd, J.:
1. As the plaintiffs have abandoned their allegation that the contract of sale was obtained by fraud, and as they are now seeking to enforce the same by collecting the balance of the purchase-money, it is necessary to inquire whether they, as the heirs at law of John Dickson, the vendor, can perform the said contract by executing a title to the lands mentioned therein to the defendant Wilcoxon, the vendee. This is important, for if, as is alleged, there is a failure of title as to a part of the land, the judgment of the Court must be so modified that there may be an equitable adjustment between the parties.
The said Dickson in July, 1878, conveyed a part of the land to his daughter, the defendant Elizabeth, who is the wife of the defendant Wilcoxon, and the question is whether, at the time of the execution of the contract of sale she had reconveyed, or in any way surrendered, her estate in the same to her father. The deed had not been registered, and on the morning of her marriage , in January, 1879, she promised her father to reconvey the land and to redeliver the said conveyance. Upon being further advised she declined to perform her promise, and as there is no finding that it is based upon any consideration whatever (the Dog Creek tract not being connected with this transaction), it is entirely clear that it cannot be enforced, and that it did not in the least affect any interest which she had acquired. It appears, however, that after her marriage, in pursuance of the said promise she executed a deed reconveying the land to her father, and also surrendered to' him the deed which he had delivered to her. This was also without consideration, and there was no joinder of her husband in the conveyance, nor was she privily examined as to its execution.
As the agreement made before the marriage was oral and voluntary it could not have been enforced against the wife, and its subsequent performance can, for that reason, derive no support therefrom. Beyond all question the reconveyance without privy examination or the joinder of the husband was void, and the point to be determined is, whether a married woman who is the grantee in an unrecorded deed can, by the sole and independent act of redelivery of the deed, practically convey the interests in land which she has acquired under the same.
If the unrecorded deed conferred upon her an
estate
in the land, either legal or equitable, it is plain that there is but one way by which she can convey it, and that is by deed and privy examination with the joinder of the husband. It is a well recognized principle that the law will not allow that to be done indirectly which it has forbidden to be done directly, and if a married woman can, by the simple redelivery of her unrecorded deeds, practically convey her equitable estates in realty, the very disability which the law has imposed will, to a great extent, be removed, and the safeguards which it has carefully thrown around her be broken down and abrogated.
It is contended, however, that an unrecorded deed confers no estate, and that it amounts to no more than a mere execu-tory contract.
This, in our opinion, is a misconception of the law; for it is well established that such a deed is “a legal conveyance, and, although it cannot be proven in evidence until it be registered, and, therefore, it is not a present legal title, it has, as a. deed, an operation from its delivery.” RurriN, C. J., in
Walker
v.
Caltraine,
6 Ired. Eq., 79. “It may,” says the same high authority, “ be set up in equity, whether voluntary or for value, and by it such an estate is conferred as may be sold under execution, and this even before the act of 1812.”
Prince
v.
Sykes,
1 Hawks, 87. Its owner is a
tenant of the freehold, and a recovery under a
precipe
against him would be good, and his widow may be endowed in the same.
Morris
v.
Ford,
2 Dev. Eq., 412. Such a grantee is also deemed in equity to be seized of an equitable freehold.
Austin
v.
King,
91 N. C., 286.
Elizabeth then having an estate in the land, could not, after her marriage, do any act which would, in effect, divest such estate without privy examination and the joinder of her husband. Such was held to be the law by the Supreme Court of New Jersey in
Wilson
v.
Hill,
2 Beasley, 143, and the decision, we think, is well supported by reason, as well as the general policy of the law as to the disabilities of
femes covert.
In that case, apart from the peculiar circumstances surrounding the transaction, the Court laid down the principle that the voluntary surrender of an unrecorded deed by a married woman, unaccompanied by deed and privy examination, was ineffectual to divest her estate. Such a surrender could have been made by Elizabeth while she was a
feme sole (Austin
v.
King, supra,
and the cases cited), but we are very sure that her capacity to do so ended when the disabilities of coverture attached. It would seem strange indeed, if a
feme covert
could, by her independent act, divest herself of her real property -when she is incapable of assigning her chattels without the written consent of her husband.
It is true that the defendant Elizabeth knew of the contract of sale, and made no objection, but it is well settled that such passive conduct cannot estop a married woman
(Weathersbee
v.
Farrar,
97 N. C., 111), and especially is this so where it appears that she was entirely ignorant of her rights, and where there is nothing to show any fraudulent purpose on her part. We hold, therefore, that Elizabeth has never parted with the estate which she acquired under the deed of her father, and this instrument, being now registered, confers upon her the legal title to the land described therein.
2. As the case must be remanded for an adjustment of the equities growing out of the partial failure of title, and inasmuch as we are not informed whether the defendant desires to rescind the contract, or have it enforced as to the other part of the land, we do not feel warranted in passing upon questions which may contingently arise hereafter. We think, however, that it is proper, in aid of the further proceedings, that we should construe the contract of sale, the terms of which are seriously disputed by the parties.
The true construction, we think, is this: It was at first agreed that Dickson should sell the land to Wilcoxon for §2,300, $1,000 to be paid 1st April, 1882, and the balance by note for $1,300, with interest at six per cent, from April 1st, 1882, and Wilcoxon was to maintain Dickson in the manner prescribed.
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Shepherd, J.:
1. As the plaintiffs have abandoned their allegation that the contract of sale was obtained by fraud, and as they are now seeking to enforce the same by collecting the balance of the purchase-money, it is necessary to inquire whether they, as the heirs at law of John Dickson, the vendor, can perform the said contract by executing a title to the lands mentioned therein to the defendant Wilcoxon, the vendee. This is important, for if, as is alleged, there is a failure of title as to a part of the land, the judgment of the Court must be so modified that there may be an equitable adjustment between the parties.
The said Dickson in July, 1878, conveyed a part of the land to his daughter, the defendant Elizabeth, who is the wife of the defendant Wilcoxon, and the question is whether, at the time of the execution of the contract of sale she had reconveyed, or in any way surrendered, her estate in the same to her father. The deed had not been registered, and on the morning of her marriage , in January, 1879, she promised her father to reconvey the land and to redeliver the said conveyance. Upon being further advised she declined to perform her promise, and as there is no finding that it is based upon any consideration whatever (the Dog Creek tract not being connected with this transaction), it is entirely clear that it cannot be enforced, and that it did not in the least affect any interest which she had acquired. It appears, however, that after her marriage, in pursuance of the said promise she executed a deed reconveying the land to her father, and also surrendered to' him the deed which he had delivered to her. This was also without consideration, and there was no joinder of her husband in the conveyance, nor was she privily examined as to its execution.
As the agreement made before the marriage was oral and voluntary it could not have been enforced against the wife, and its subsequent performance can, for that reason, derive no support therefrom. Beyond all question the reconveyance without privy examination or the joinder of the husband was void, and the point to be determined is, whether a married woman who is the grantee in an unrecorded deed can, by the sole and independent act of redelivery of the deed, practically convey the interests in land which she has acquired under the same.
If the unrecorded deed conferred upon her an
estate
in the land, either legal or equitable, it is plain that there is but one way by which she can convey it, and that is by deed and privy examination with the joinder of the husband. It is a well recognized principle that the law will not allow that to be done indirectly which it has forbidden to be done directly, and if a married woman can, by the simple redelivery of her unrecorded deeds, practically convey her equitable estates in realty, the very disability which the law has imposed will, to a great extent, be removed, and the safeguards which it has carefully thrown around her be broken down and abrogated.
It is contended, however, that an unrecorded deed confers no estate, and that it amounts to no more than a mere execu-tory contract.
This, in our opinion, is a misconception of the law; for it is well established that such a deed is “a legal conveyance, and, although it cannot be proven in evidence until it be registered, and, therefore, it is not a present legal title, it has, as a. deed, an operation from its delivery.” RurriN, C. J., in
Walker
v.
Caltraine,
6 Ired. Eq., 79. “It may,” says the same high authority, “ be set up in equity, whether voluntary or for value, and by it such an estate is conferred as may be sold under execution, and this even before the act of 1812.”
Prince
v.
Sykes,
1 Hawks, 87. Its owner is a
tenant of the freehold, and a recovery under a
precipe
against him would be good, and his widow may be endowed in the same.
Morris
v.
Ford,
2 Dev. Eq., 412. Such a grantee is also deemed in equity to be seized of an equitable freehold.
Austin
v.
King,
91 N. C., 286.
Elizabeth then having an estate in the land, could not, after her marriage, do any act which would, in effect, divest such estate without privy examination and the joinder of her husband. Such was held to be the law by the Supreme Court of New Jersey in
Wilson
v.
Hill,
2 Beasley, 143, and the decision, we think, is well supported by reason, as well as the general policy of the law as to the disabilities of
femes covert.
In that case, apart from the peculiar circumstances surrounding the transaction, the Court laid down the principle that the voluntary surrender of an unrecorded deed by a married woman, unaccompanied by deed and privy examination, was ineffectual to divest her estate. Such a surrender could have been made by Elizabeth while she was a
feme sole (Austin
v.
King, supra,
and the cases cited), but we are very sure that her capacity to do so ended when the disabilities of coverture attached. It would seem strange indeed, if a
feme covert
could, by her independent act, divest herself of her real property -when she is incapable of assigning her chattels without the written consent of her husband.
It is true that the defendant Elizabeth knew of the contract of sale, and made no objection, but it is well settled that such passive conduct cannot estop a married woman
(Weathersbee
v.
Farrar,
97 N. C., 111), and especially is this so where it appears that she was entirely ignorant of her rights, and where there is nothing to show any fraudulent purpose on her part. We hold, therefore, that Elizabeth has never parted with the estate which she acquired under the deed of her father, and this instrument, being now registered, confers upon her the legal title to the land described therein.
2. As the case must be remanded for an adjustment of the equities growing out of the partial failure of title, and inasmuch as we are not informed whether the defendant desires to rescind the contract, or have it enforced as to the other part of the land, we do not feel warranted in passing upon questions which may contingently arise hereafter. We think, however, that it is proper, in aid of the further proceedings, that we should construe the contract of sale, the terms of which are seriously disputed by the parties.
The true construction, we think, is this: It was at first agreed that Dickson should sell the land to Wilcoxon for §2,300, $1,000 to be paid 1st April, 1882, and the balance by note for $1,300, with interest at six per cent, from April 1st, 1882, and Wilcoxon was to maintain Dickson in the manner prescribed. There is nothing ambiguous in this, but it w’as further agreed that Wilcoxon should pay Dickson $138 per annum, it being the interest at six per cent, per annum on the total amount of the purchase-money for said land, in lieu of the maintenance, etc., and this, fairly construed, we think, means that Wilcoxon was to have the land for $2,300, charged with $138 (the annual interest thereon), and that he was to be credited with $138 (equal to the interest), as the measure of the value of the services and charges of Wilcoxon iu the maintenance, etc, of Dickson.
Had there been no failure of title the account should have been so stated as to charge Wilcoxon with $2,300 and $138 annually (the interest thereon), and credit him with $138 annually (the stipulated value of Dickson’s maintenance), and with any sums that may have been paid on the purchase-money, with interest thereon to the death of Dickson, and the amount due Dickson’s estate would have been the balance found to be due at Dickson’s death, with interest at six per cent, from the date of that event.
It is hardly necessary to cite authority in support of the ruling of his Honor rejecting the oral testimony varying the terms of the said contract.
■ The judgment is set aside and the cause remanded, to the end that further proceedings may be had looking to an equitable adjustment of the rights of the parties.
Modified and remanded.