Aldridge v. Burlison

Blackford, J. Aldridge brought an action of covenant against Burlison and his wife. The declaration avers that Burlison and his wife by an indenture, in consideration of 200 dollars, gave, granted, bargained, and sold, unto Aldridge certain real estate; and covenanted with him that they were lawfully seized in fee of the premises, and had good right to sell and convey the same to him. The declaration also avers, that Burlison and his wife were not lawfully seized in fee of the premises or of any part thereof, and that they had not any right whatever to convey the premises to Aldridge; but that on the contrary, A, J. M’Faddin were lawfully seized in fee of the premises, who had the exclusive right to sell and convey them. It also avers, that A. o-' J- M'Faddin had and still have lawful right to, and possession of the premises; and that they have, from thence hitherto, kept out and still do keep out Aldridge from the possession, contrary to the covenant of Burlison and his wife. The defendants pleaded two pleas, — 1st, actio non, because the defendants were, on, &c. lawfully seized, &c.; and that A. cV J. M’Fadclin were not, at, &c. lawfully seized, &c.; 2dly, that the action ought not to be further maintained, because A. & J. JiPFaddin, since the last continuance, have relinquished their title to the defendants. Replication to the lirst plea, and issue. Demurrer to the second plea, and judgment on the demurrer for the defendants. Although the second plea be considered bad, as contended for by the plaintiif, still the judgment of the Circuit Court against him is correct. The declaration is substantially defective. The action is against a husband and his wife, founded on a personal covenant averred to have been made by them jointly. Such an action cannot be sustained. A feme covert can enter [202] into no such covenant. She may, by virtue of our statute, join with her husband in the execution of a conveyance of real estate; but she cannot join with him in any of the covenants contained in the deed. The action here is against two persons on a joint covenant, which covenant, as shown by the declaration, is not binding on one of the defendants. The declaration is, therefore, bad on general demurrer. 1 Chitt. Pl. 32 (1). R. Crawford, for the plaintiff. C. I. Battell, for the defendants. Per Curiam. The judgment is affirmed with costs. Footnotes [(1)] The following caso is in point: — Wadleigh sued Glines and Polly his wife in covenant. The declaration alleged that the defendants conveyed to the plaintiff a certain tract of land, which they claimed in right of the said Polly; that the defendants, by the said deed, covenanted with the plaintiff that they were lawful owners of the premises, &c., that they would warrant, &c. Breach, &c. Demurrer to the declaration and judgment for the defendants. Per Curiam. — “It is well settled, that upon a mere personal contract, made by a wife, during the coverture, she can in no case be sued. 16 Johns. 281, Edwards v. Davis.—17 ditto, 167, Jackson v. Vanderheyden.—15 ditto, 483, Whitbeck v. Cook.—1 Binn. 575.—1 Chitt. Pl. 43. “ But, at common law, covenant on a warranty in a fine, or on a covenant, running with the land of the wife, demised by her during the coverture, might be supported against her. 1 Chitt. Pl. 43.—3 Saund. 177, Wotton v. Hele.—Ibid, 180, note 9. “In this state a married woman may, by joining with her husband in a deed, convey her lands; and her deed, thus made, will estop her and her heirs from setting up, against the grantee, any title she may have had when the deed was made. “ But she has never been considered as bound by any covenant of warranty in the deed. 7 Mass. Rep. 291, Colcord v. Swan et ux. “Nor is she estopped, by sucha covenant, from setting up a subsequently acquired title. 17 Johns. 167.”—Wadleigh v. Glines et ux., 6 N. Hamp. 17.