Tripp v. . Langston

Babnhill, J. Plaintiff’s intestate was a party to the covenants contained in the deed dated 3 January, 1933, executed by her and her husband to the defendant C. E. Langston. She thereby covenanted that the premises in controversy were free from encumbrances. At the time she not only owned an inchoate right of dower but as mortgagee she owned the legal title coupled with an interest. Thus, she was the grantor of a substantial estate in the land and “a grantor of land with full covenants of warranty is estopped to claim any interest in the granted premises. And where he holds a prior mortgage on the premises he can assert no rights as mortgagee against his grantee.” 10 R. C. L., 677; Bechtel v. Bohannon, 198 N. C., 730, 153 S. E., 316; Bank v. Johnson, 205 N. C., 180, 170 S. E., 658; 19 Am. Jur., 607. In this State the common law disabilities of a married woman to contract, with certain exceptions, have been removed and she is bound by an estoppel the same as any other person. The plaintiff’s contention that his intestate joined in the deed for the mere purpose of releasing her inchoate right of dower cannot be sustained. The deed is general in its terms. There is nothing therein to restrict her joinder to her dower interest any more than there is to restrict it to her interest as mortgagee. Furthermore, the equitable doctrine of feeding an estoppel through an after-acquired title has no application. The court correctly adjudged that the plaintiff is estopped from asserting any claim of right, title, interest or estate in or to the lands in controversy by reason of the covenants contained in the deed to the defendant C. E. Langston. But the court went further. It adjudged that the plaintiff recover nothing of the defendants. In so doing it apparently overlooked plaintiff’s first cause of action. There was no waiver of a jury trial and no agreement to submit the issue of indebtedness to the court. The covenant was against encumbrances. It does not -estop plaintiff from asserting the debt as an unsecured claim or discharge the liability, if any, of defendants on their note, the execution of which they admit. *298 It follows that so much of the judgment as attempts to adjudicate the issues raised on plaintiff’s first cause of action was erroneous. The court was without authority to enter final judgment thereon or to dismiss plaintiff’s first cause of action. The judgment below will be modified accordingly. Modified and affirmed.