Childs v. McChesney

Dillon, J. i. pbacSlrécSfdl I. The plaintiff claims that the Bird, Brown & Co. judgment, which is the foundation of the .defendant’s title, is void, because the entry or record thereof was never signed by the judge as prescribed by the statute. Rev., §§ 2664,-2665. The objection is true in point of fact, but unsound in point of law. The judg [435] ment was rendered when Judge Lowe was upon the/bench of the District Court at his last term. It not being practicable to have the entries all prepared at the term, the judge could not sign them. The statute provides that they may be signed at the next term, but such delay shall not prevent execution issuing and other proceedings talcing place as usual. The provision in relation to signing the records is directory merely. 2. conveyeee: coveestoppel, 3_hus_ wifen:destodppeI' II. Defendant acquired title under Mary Bras, who, as the wife of Thomas Bras, had previously united with her husband in a conveyance by warranty to Sarah Carter, under whom the plaintiff claims. The plaintiff claims that the defendant is estopped to set up the title which he acquired from Mary Bras. The defendant is in privity of estate with Mary Bras, and the plaintiff with Sarah Carter. It will simplify the question if we inquire whether Mary Bras as against Sarah Carter, acquired by the purchase of the sheriff’s certificate and the execution of the sheriff’s deed to her, a title which would not inure to the benefit of the said Sarah? It is very plain, both upon general principles (Rawle on Cov., chap. 9), and by the statute (Rev., § 2210), that ^ the husband had acquired a title subsequent to his conveyance with warranty to Sarah Carter, that title would have inured to her benefit. In other words, the husband would have been estopped to set it up, against his prior grantee in fee, or with warranty. His prior deed with warranty would transfer the new title by an estoppel working a grant. Jfo what extent a married woman is thus estopped, is a question upon which, in other States, the decisions are by no means accordant. Aside from statute, a married woman is not liable in damages upon covenants in a deed of her own land, much less liable when she simply unites in a covenant in a deed of her husband's land. So far the authorities all agree. This [436] non-liability of the wife is based upon her common law incapacity of binding herself by contract. 2 Kent Com., 167, 168. Whether in this State, under the statutory provisions, which, as respects the conveyance of real estate of married women, removes substantially all of the restraints of coverture, a feme covert would be liable in damages for a breach of covenant in a conveyance of her own land, or whether, by such a conveyance with warranty, she would be estopped to set up against her grantee, an after acquired estate, are questions, highly important, if not difficult, and upon which (as it is not necessary to do so) we express no opinion. See Morris v. Harris, 9 Gill. (Md.), 19; Den v. Demarest, 1 Zabr., 541; Simms v. Hervey, 19 Iowa, 272, and authorities infra. While many authorities hold that a wife who conveys her own land with warranty, will be estopped to set up a subsequent title (Hill's Lessee v. West, 8 Ohio, 222, 227 (1837), materially misquoted in Rawle on Cov. Title (2d ed.), 429, note, using the words conveyance of 11 his land,” instead of 11 her land,” as in the original; Nash v. Spofford, 10 Metc., 192 (1845); Fowler v. Shearer, 7 Mass., 14 (1810); arguendo by Parsons, Ch. J.; Colcord v. Swan, Id., 21 (1811); Doane v. Wilcut, 5 Gray, 332 (1855), per Shaw, Ch. J.; but see and compare Wright v. Shaw, 5 Cush., 56, 66 (1849), where previous cases (except 10 Metc., 192, supra), are reviewed, and estoppel of wife doubted; Den v. Demarest, 1 Zabr., N. J., 525 (1848); Fletcher v. Coleman, 2 Head. (Tenn.), 384 (1859); Pentz v. Simonson, 13 N. J., 234; Morrison v. Wilson, 13 Cal., 494 (1859); Massie v. Sebastian, 4 Bibb. (Ky.), 436 (1816); 2 Wash. Real Prop., 485, pl. 43; 586, pl. 23), yet few, if any of them hold that she is thus estopped where she unites in a conveyance of her husband’s real estate, though she joins in a covenant. Jackson v. Vanderheyden, 17 Johns., 167 (1819), directly in point; Groat v. Townsend, 2 Hill, N. Y., 554 (1842); Mar [437] tin v. Develly, 6 Wend., 9; Dominick v. Michael, 4 Sandf. S. C., 424; 2 Kent Com., 167; Carpenter v. Shermerham, 2 Barb. Ch., 314; Wadleigh v. Gluris, 6 N. H., 17 (1832); Lowell v. Daniels, 2 Gray, 161 (1857). That she is not barred of an after acquired title, by a covenant in a deed intended to convey her husband’s land,** would seem to have been the opinion of the court in Schaffner v. Grutzmacher, 6 Iowa, 137, although that case did not alone rest, as it did in part, upon this ground. So in the circumstances of this case, we see no reason for holding Mary Bras disabled from acquiring for herself with her own means, the sheriff’s certificate of sale, and the sheriff’s deed which it authorized to be made to her. She bought this with her own money, with money upon which neither her husband or his creditors, or covenantee had any claim. She made the purchase on the last day for the redemption, when her husband, Wood & Baker, the second lien holders, and Sarah Carter the grantee, had all failed to redeem, and when, if Mrs. Bras had not purchased the certificate, the title would have passed to Cobb¿ and forever away from Wood & Baker and Sarah Carter. They were not injured or affected by her purchase. They had the same rights after her purchase as they had against Cobb, her assignor. Wood & Baker were not, as argued by appellant, enjoined from redeeming from Cobb’s sale. The covenant of. Mrs. Bras in the deed of her husband’s land, did not bind her personally, and, in our opinion, it did not have •the effect to make the subsequent title, which she acquired in the way stated, inure to Sarah Carter, the former purchaser from her husband. III. Plaintiff next claims that the sale under the Bird, Brown & Co. judgment, was void, because it was made after the lapse of more than seventy days from the test of the execution. The execution was issued January 7,1860. [438] objection to evidence, The sale was made April 16, 1860, more than seventy days. The sheriff’s deed is silent as to whether an alias ft. fa. or a vendi. exponas was issued. The record does not show that the plaintiff objected to the introduc^011 ^ sheriff’s deed on this ground, and the statute requires Ihe ground of the objection to appear. Rev., § 3107. This is one answer. s pius ssSrf! 4ale' Again: the presumption is in favor of the regularity of the sheriff’s ¡sale. Rev., § 3356. This is not rebutted by the silence of the sheriff’s deed upon the point whether there was an alias writ or a vendi. exponas, and no evidence, aliunde, upon the point was offered by the plaintiff. 6 SHE* Itolguia5: ity: time. Again: the objection, if true in point of fact, would probably be an irregularity simply, not a matter which would render the sale utterly void. Stein v. Chambless & Banford, 18 Iowa, 474; Butterfield v. Walsh, 21 Iowa. Upon an examination of the whole case we are of opinion that the District Court properly adjudged the cause for the defendant. The judgment, therefore, stands Affirmed.