CLARK, J., dissenting.
On 21 January, 1878, the plaintiff was the owner of the land in controversy, lying and being in Montgomery County,
North Carolina, containing 133 acres, which she agreed to sell to one Lindsay Hursey for $130. The plaintiff, Christian Smith, was at that time a married woman, being the wife of J. L. Smith, and has so remained the wife of said J. L. Smith until since (101) the commencement of this action; that in pursuance of said contract and agreement to sell, she and her said husband made and executed a deed sufficient in form to convey said land to said Hursey in fee simple, with a covenant of warranty of title to said Hursey, but not to his heirs,nor to his assigns; that the said Hursey thereafter took possession of said land and claimed to hold the same under this deed from the plaintiff and her husband, J. L. Smith, and the defendants claim under and by mesne
conveyances from the said Lindsay Hursey.
The plaintiff and her said husband were residents and citizens of the State of South Carolina at and before the date of said transaction, and the plaintiff is still a resident and citizen of said State. That said deed was probated according to the laws of South Carolina, but not according to the laws of this State, in that no privy examination of the plaintiff was ever taken.
It was shown and admitted that under the laws of South Carolina at that time a married woman might sell and convey her own land by and with the consent of her husband, without privy examination. And it is admitted and the deed shows that the husband joined the plaintiff in making and executing said deed.
This action was commenced on 16 September, 1895, for possession of said land and for damages for the wrongful detention thereof; and defendants answer and deny the plaintiff's right to recover, admit they are in possession of said land, and plead the deed of the plaintiff and her said husband, of 21 January, 1878, to the said Lindsay Hursey, under whom they claim title, as an estoppel. And defendants contend that by reason of this deed and the covenant of warranty therein contained, the plaintiff is estopped to claim title to said land, and that she can not maintain this action. Defendants say that as the plaintiff could convey her land under the laws of South Carolina, and as she was a resident and citizen of South Carolina, and as the contract (102) of sale and deed to Hursey were made in South Carolina, it was a South Carolina contract and the deed conveyed the land to Hursey; or, if this is not true, that the warranty is a personal contract that the plaintiff was authorized to make by the laws of South Carolina, that it is binding upon her, and might be enforced there and will be enforced here; that this being so, the plaintiff is estopped and can not maintain this action.
But upon a careful examination of authorities, we find that neither of the contentions of the defendants can be sustained.
Lord Coke says warranty is a covenant real, attached to the land, and runs with the estate, whereby the grantee, upon being ousted by title paramount, may vouch the grantor and compel him to render other lands of equal value. 2 Coke upon Littleton, ch. 13, sec. 697 et seq.
In Southerland v. Stout, 68 N.C. 446, the grantor conveyed to McQuenn with general warranty, "which warranty the plaintiff acquired as incident to the estate derived from him — a covenant which runs with the estate." Thus it appears that where there is a general warranty to the grantee, his heirs and assigns, it is attached to the land and runs withthe estate, and the heirs or assignee may vouch. But it is a covenant real
and extends no further than the terms of the covenant carries it. My LordCoke again says: "If a man doth warrant land to another without this word (heirs), his heirs shall not vouch; and regularly if he warrant land to a man and his heirs, without naming assigns, his assigns shall not vouch." 384b and 385b.
So it is seen that if the estate had passed to Hursey under the deed of plaintiff and her husband, the defendants, who are the assigns of Hursey, would have no interest in it, and could not have vouched the plaintiff.
Warranties are now treated as personal covenants. This is so under the statute of Anne, the Revised Code, ch. 43, sec. 10, and sec. (103) 1334 of the Code, and was made so by these statutes and judicial construction, because real actions had been abolished and actions of ejectment had been substituted in their stead and there was no one to vouch. But the action of covenant can only be had where the party could have vouched under an action real. Southerland v. Stout, 68 N.C. 446;Rickets v. Dickens, 5 N.C. star page 343 (4 Am. Dec., 555). And when suits are brought on such covenant and the grantee had been evicted from the whole of the land, the measure of damage was the amount paid for the land. Williams v. Beeman, 13 N.C. 483, approved in Markland v. Crump,18 N.C. 94; 27 Am. Dec., 230; Nichols v. Freeman, 33 N.C. 99, and many other cases. The defendants having no right to vouch if this had been an action real, they have no right to sue on the covenant, and no right to defend under it. They have no privity or connection with the warranty, which was to Hursey alone; they have no interest in it, and can take no benefit under it, even if Hursey could have done so.
And we now propose to show that this transaction was absolutely void and no estate passed to Hursey under the deed of 21 January, 1878, and that the plaintiff incurred no obligation that can be enforced in law or equity.
The general rule is that executory contracts are governed by the
law of the jurisdiction where they are to be executed; and if they are repugnant to the established policy of that jurisdiction, they can not be enforced. An executory contract may be made in this State to be executed in New York, and it will be considered a New York contract and subject to the laws of that State. But if such executory contract is made here, and no place named as to where it shall be executed, it is presumed that it was to be executed here — a North Carolina contract. And this doctrine applies only to executory contracts, and not to property.
But there are well-known exceptions to that rule. There (104) are contracts which are localized by the subject-matter of the contract, as this one is. All contracts and deeds for the sale and conveyance of land are local and belong to the jurisdiction where the land lies, and will not be enforced when they are in violation of the laws and settled policy of this State. In other words, such contracts and conveyances are made, by the law, contracts and conveyances of the State where the land is. The law of constructive jurisdiction, or contractual jurisdiction, has never applied to contracts for or conveyances of land. And when the plaintiff made this sale and conveyance to Hursey, she made it as a citizen of North Carolina, that is, she was as much subject to the laws of this State as if she had been living here, and made it here. Hursey was as much bound to take notice of the fact that she was a married woman, as if she had been living here. This doctrine is well stated in Story Conflict of Laws (8 Ed.), secs. 38 and 474, and note A; Wharton Conflict of Laws, secs. 278, 305, 331, and sustained by Meroney v.B. L. Association, 116 N.C. 882 (47 Am.
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CLARK, J., dissenting.
On 21 January, 1878, the plaintiff was the owner of the land in controversy, lying and being in Montgomery County,
North Carolina, containing 133 acres, which she agreed to sell to one Lindsay Hursey for $130. The plaintiff, Christian Smith, was at that time a married woman, being the wife of J. L. Smith, and has so remained the wife of said J. L. Smith until since (101) the commencement of this action; that in pursuance of said contract and agreement to sell, she and her said husband made and executed a deed sufficient in form to convey said land to said Hursey in fee simple, with a covenant of warranty of title to said Hursey, but not to his heirs,nor to his assigns; that the said Hursey thereafter took possession of said land and claimed to hold the same under this deed from the plaintiff and her husband, J. L. Smith, and the defendants claim under and by mesne
conveyances from the said Lindsay Hursey.
The plaintiff and her said husband were residents and citizens of the State of South Carolina at and before the date of said transaction, and the plaintiff is still a resident and citizen of said State. That said deed was probated according to the laws of South Carolina, but not according to the laws of this State, in that no privy examination of the plaintiff was ever taken.
It was shown and admitted that under the laws of South Carolina at that time a married woman might sell and convey her own land by and with the consent of her husband, without privy examination. And it is admitted and the deed shows that the husband joined the plaintiff in making and executing said deed.
This action was commenced on 16 September, 1895, for possession of said land and for damages for the wrongful detention thereof; and defendants answer and deny the plaintiff's right to recover, admit they are in possession of said land, and plead the deed of the plaintiff and her said husband, of 21 January, 1878, to the said Lindsay Hursey, under whom they claim title, as an estoppel. And defendants contend that by reason of this deed and the covenant of warranty therein contained, the plaintiff is estopped to claim title to said land, and that she can not maintain this action. Defendants say that as the plaintiff could convey her land under the laws of South Carolina, and as she was a resident and citizen of South Carolina, and as the contract (102) of sale and deed to Hursey were made in South Carolina, it was a South Carolina contract and the deed conveyed the land to Hursey; or, if this is not true, that the warranty is a personal contract that the plaintiff was authorized to make by the laws of South Carolina, that it is binding upon her, and might be enforced there and will be enforced here; that this being so, the plaintiff is estopped and can not maintain this action.
But upon a careful examination of authorities, we find that neither of the contentions of the defendants can be sustained.
Lord Coke says warranty is a covenant real, attached to the land, and runs with the estate, whereby the grantee, upon being ousted by title paramount, may vouch the grantor and compel him to render other lands of equal value. 2 Coke upon Littleton, ch. 13, sec. 697 et seq.
In Southerland v. Stout, 68 N.C. 446, the grantor conveyed to McQuenn with general warranty, "which warranty the plaintiff acquired as incident to the estate derived from him — a covenant which runs with the estate." Thus it appears that where there is a general warranty to the grantee, his heirs and assigns, it is attached to the land and runs withthe estate, and the heirs or assignee may vouch. But it is a covenant real
and extends no further than the terms of the covenant carries it. My LordCoke again says: "If a man doth warrant land to another without this word (heirs), his heirs shall not vouch; and regularly if he warrant land to a man and his heirs, without naming assigns, his assigns shall not vouch." 384b and 385b.
So it is seen that if the estate had passed to Hursey under the deed of plaintiff and her husband, the defendants, who are the assigns of Hursey, would have no interest in it, and could not have vouched the plaintiff.
Warranties are now treated as personal covenants. This is so under the statute of Anne, the Revised Code, ch. 43, sec. 10, and sec. (103) 1334 of the Code, and was made so by these statutes and judicial construction, because real actions had been abolished and actions of ejectment had been substituted in their stead and there was no one to vouch. But the action of covenant can only be had where the party could have vouched under an action real. Southerland v. Stout, 68 N.C. 446;Rickets v. Dickens, 5 N.C. star page 343 (4 Am. Dec., 555). And when suits are brought on such covenant and the grantee had been evicted from the whole of the land, the measure of damage was the amount paid for the land. Williams v. Beeman, 13 N.C. 483, approved in Markland v. Crump,18 N.C. 94; 27 Am. Dec., 230; Nichols v. Freeman, 33 N.C. 99, and many other cases. The defendants having no right to vouch if this had been an action real, they have no right to sue on the covenant, and no right to defend under it. They have no privity or connection with the warranty, which was to Hursey alone; they have no interest in it, and can take no benefit under it, even if Hursey could have done so.
And we now propose to show that this transaction was absolutely void and no estate passed to Hursey under the deed of 21 January, 1878, and that the plaintiff incurred no obligation that can be enforced in law or equity.
The general rule is that executory contracts are governed by the
law of the jurisdiction where they are to be executed; and if they are repugnant to the established policy of that jurisdiction, they can not be enforced. An executory contract may be made in this State to be executed in New York, and it will be considered a New York contract and subject to the laws of that State. But if such executory contract is made here, and no place named as to where it shall be executed, it is presumed that it was to be executed here — a North Carolina contract. And this doctrine applies only to executory contracts, and not to property.
But there are well-known exceptions to that rule. There (104) are contracts which are localized by the subject-matter of the contract, as this one is. All contracts and deeds for the sale and conveyance of land are local and belong to the jurisdiction where the land lies, and will not be enforced when they are in violation of the laws and settled policy of this State. In other words, such contracts and conveyances are made, by the law, contracts and conveyances of the State where the land is. The law of constructive jurisdiction, or contractual jurisdiction, has never applied to contracts for or conveyances of land. And when the plaintiff made this sale and conveyance to Hursey, she made it as a citizen of North Carolina, that is, she was as much subject to the laws of this State as if she had been living here, and made it here. Hursey was as much bound to take notice of the fact that she was a married woman, as if she had been living here. This doctrine is well stated in Story Conflict of Laws (8 Ed.), secs. 38 and 474, and note A; Wharton Conflict of Laws, secs. 278, 305, 331, and sustained by Meroney v.B. L. Association, 116 N.C. 882 (47 Am. St., 841), and Armstrongv. Best, 112 N.C. 59; 25 L.R.A., 188; 34 Am. St., 473, and in TheKensington, U.S., decided January, 1902. But the direct question has been passed upon, and it seems to us settled by this Court in Jones v.Gerock, 59 N.C. 190. It seems to us this question is settled, treating, as we must, under the authorities cited and many others, and is a North Carolina transaction, unless we overrule the statute (Code, sec. 1256) and the many decisions of this State with regard to the execution of deeds by married women, and that the defendants can take no benefit under the transaction of plaintiff with Hursey. In Clayton v. Rose,87 N.C. 106, the Court uses this language: "In Scott v. Battle, 85 N.C. 184, 39 Am. Rep., 694, it is held that a feme covert's deed, not executed in the prescribed mode, is wholly inoperative. Abiding these decisions, we do not propose to reopen the question." The case ofScott v. Battle, which has been cited with approval in more (105) cases, in all probability, than any other case since it was filed in 1881, is so full and complete in support of this opinion that we can hardly undertake to quote from it without doing injustice to the learned
judge who wrote it. But it holds that, at common law, there was but one way by which a married woman could convey her land, and that was by fine and recovery. That our statute has provided another way, more simple and less expensive — by deed, in which the husband joins, and by privy examination of the wife. "But unless the terms prescribed in the statute are strictly complied with, she stands as at common law, and the deed is absolutely void." It is not claimed that this statute has been complied with or attempted to be complied with in this case, and it is, therefore, absolutely void. And it would seem "that the same reasoning must be a full answer to the defendant's demand upon the plaintiff for the restoration of the purchase money, which she has received and used." And "in no case will the law imply a promise on her part, and every one who deals with her is held to do so with a knowledge of her disability." The Court then disposes of the case of Daniel v.Crumpler, 75 N.C. 184, and in effect overrules it; and then proceeds to quote from Askew v. Daniel, 40 N.C. 321, as follows: "That a deed of a feme covert, until she is privily examined by the proper authorities is mere blank paper, so utterly void that even if it contains a stipulation in her own behalf, she can not have the benefit thereof." In Green v.Branton, 16 N.C. 504, the Court says that a feme covert can be bound as to her land in only two ways; first, by her deed executed jointly with her husband with her privy examination thereto, and, secondly, by the judgment of a competent court, and if her deed is not executed as required by law, it is an absolute nullity, under which no equity
(106) whatever can be set up."
Again the Court says: "Upon principle, too, it seems impossible to conceive that the law will ever permit that to be done indirectly which it forbids to be done directly, or that it will give its countenance to a doctrine which must subvert its whole theory in regard to the contracts of married women. To do so would be equivalent to saying that afeme covert, by express deed, without being privately examined thereto, can not convey or charge her lands, and yet, by a mere contract to sell and the acceptance of the purchase money, create such a lien upon it as the courtsof equity will enforce by a sale against her will."
In Towles v. Fisher, 77 N.C. 437, the Court says: "No one can reasonably rely upon the contract of a married woman, or on a representation which at best is in the nature of a contract, and by which he must be presumed to know that she is not legally bound, and it is only in the case of a pure tort, altogether disconnected with a contract, thatany estoppel against her can operate."
Wood v. Wheeler, 111 N.C. 231, is a case in our own Court directly in point as to the invalidity of the deed from plaintiff to Hursey. The
defendant in that case was a married woman and a resident and citizen of South Carolina. She made a mortgage to a citizen of North Carolina upon lands in North Carolina. The mortgage was executed in South Carolina, where she lived, and was probated according to the laws of that State, as this deed was, and this Court held that it was utterly void.
Having shown that this deed is utterly void, it can not be used as an estoppel; and, in addition to the authorities already cited, we cite the following from 11 A. E. Enc. (2 Ed.), p. 393: "No question of estoppel by deed can arise where the instrument is absolutely void." And in note 1 to this text, it is shown that this is the law in England, Alabama, Arkansas, California, District of Columbia, Indiana, Kentucky, Massachusetts, Minnesota, Missouri, North Carolina, (107) Washington and Wisconsin. And Miller v. Bumgardner,109 N.C. 412, is cited in this note, showing that this is the law in North Carolina. There, the deed of a married woman, properly executed by her and her husband except the fact that she had never been privily examined thereto, was offered as an estoppel, and this Court held that it was no estoppel against her. Again, on the same page of 11 A. E. Enc., it is held: "Where the deed is void, the mere fact that it contains covenants of warranty will not make it operative by way of estoppel, for, to make a warranty binding, there must be some estate conveyed to which the warranty may be annexed.
"A deed void, as being given in contravention of a statute, works no estoppel. Thus, a married woman will not be estopped by a deed not executed in the mode provided by statute." But "if the feme covert retain and have actually in hand the money paid her as the consideration for her imperfect and disaffirmed contract, her vendee would be permitted to recover the same at law, or if she had converted it into other property, so as to be traceable, he might pursue it in its new shape by a proceeding in rem, and subject it to the satisfaction of his demand. But if she has consumed it, as it is admitted the plaintiff has in this case, the party paying it is without remedy; and this because of the policy of the law, which forbids all dealings with femes covert, unless conducted in the manner prescribed by the statute, and which throws the risk in every such case upon the party that deals with her."
We hold, therefore, that the plaintiff is not personally liable to a charge for the money paid her by (Hursey), nor is her land in controversy subject to a lien thereon.
It seems to us that the judgment of the court below is fully sustained, and it is
Affirmed.