Bank v. Beard's Ex'r

• Decision Date: 20 November 1902
• Citation: 100 Va. 687,42 S.E. 694
• Parties: AUGUSTA NAT. BANK et al. v. BEARD'S EX'R et al.
• Court: Virginia Supreme Court

42 S.E. 694

100 Va. 687

AUGUSTA NAT. BANK et al.

v.BEARD'S EX'R et al.

Supreme Court of Appeals of Virginia.

Nov. 20, 1902.

HUSBAND AND WIFE—DEEDS—COVENANTS OF WARRANTY—WIFE'S SEPARATE ESTATE—INVENTION — CONSTRUCTION — OPERATION — STATUTES—REPEAL—IMPLICATION.

1. Code, § 2502 (amended Act March 6, 1890), provides that a writing by husband and wife, purporting to convey land, shall convey the wife's dower, but shall not affect the wife by any covenant of warranty contained therein which is not made with reference to her separate estate. Held that, where a husband and wife joined in a deed containing covenants of general warranty, conveying his land to a trustee to secure debts owing to the wife by the husband, the wife, by joining the husband in a subsequent similar deed of the same land to plaintiff, was not bound by the covenants of warranty in the last deed, and the first deed was not postponed to the second, there being no reference to her separate estate.

2. Under the statute there could be no implied promise to charge her estate by the covenant of warranty.

3. Where a husband and wife joined in a deed with covenants of warranty conveying his land in trust for her to secure his indebtedness to the wife, a second similar conveyance by them of the same land to secure debts to plaintiff could not be construed as a release of her interest in the land as conferred on her by the first deed, there being no intimation of such intention in the deed to plaintiff.

4. The married woman's act of 1900 (section 2), providing that married women may contract and be contracted with in the same manner as if single, does not by implication repeal Code, § 2502.

Appeal from circuit court, Augusta county.

Proceedings by the Augusta National Bank and others against Catherine Beard's executor and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Patrick & Gordon, for appellants.

Queries & Pilson, for appellees.

CARDWELL, J. The facts of this case are

as follows:

E. A. Fulcher owned in his own right certain lands situated in Augusta county, and on the 28th of April, 1883, he executed to Geo. M. Cochran, Jr., trustee, a deed, in which his wife, Emma A. Fulcher, united, conveying said lands with general warranty of title, in trust to secure the payment of two bonds, —one executed by E. A. Fulcher "to C. Beard, trustee for Emma A. Fulcher and her children under the will of Peter Engleman, deceased, " for $1,487.77, bearing even date with the deed, and payable one year after date, with interest from date; and the other executed by E. A. Fulcher to Catherine J. Beard, for $1,550, bearing even date with the deed, and payable one year after date, with interest from date. Under the will of Peter Engleman, deceased, Emma A. Fulcher is entitled during her life to the interest on the first-named bond, and at her death the principal belongs to her children absolutely.

After the execution of the deed to Geo. M. Cochran, Jr., trustee, to wit, on the 3d day of July, 1897, E. A. Fulcher and Emma A., his wife, executed another deed to John B. Cochran, trustee, conveying with general warranty the same lands, to secure the payment of certain debts of E. A. Fulcher due the Augusta National Bank, J. B. O'Connell, and others.

The question presented is, what is the effect of Mrs. Fulcher uniting with her husband in the second deed? Counsel for appellants contend that the effect of the union of Mrs. Fulcher in the deed of trust of 1807 is to postpone the deed of 1883 to the trust deed of 1897 so far as the accumulated interest on the bond for $1,487.77 is concerned. It is claimed that this results from (1) the operation of section 2502 of the Code, as amended, on the deed of 1897; (2) from the interpretation of the deed of 1897 as a release from Mrs. Fulcher of the accrued interest on the bond of $1,487.77; and (3) from the effect of the married woman's act of March 7, 1900, on the warranty in the deed of 1897.

The first act in Virgiuia that prescribed how femes covert could "make good acknowledgments of sales of lands" was passed in 1G74 (Henning's St. 317); and in Nelson v. Harwood, 3 Call, 394, decided in May, 1803, the question was whether or not, under this statute, as amended from time to time (the amendments making no substantial changes), providing for acknowledgments of husband and wife and the privy examination of the wife, and declaring that this mode should be as effective to convey land as if the same had been done by fine and recovery, or any way whatsoever, the wife was bound by the covenants in the deed contained. The court held that the wife was bound by such covenants. And then followed the act of 1814, which provided "that no covenant or warranty contained in any deed hereafter by any feme covert shall in any manner operate upon her or her heirs further than to convey effectually from such feme covert and her heirs any right of dower or other interestswhich the said feme covert may be entitled to at the date of such deed."

In Rorer's Heirs v. Bank, 83 Va. 625, 4 S. E. 820, that act came under review, and the court held that it clearly exempted a married woman from liability on covenants in a deed made by her and her husband. The opinion says: "By this act the effect of a married woman's deed is limited so as to pass what estate she had at the date of the deed in the land conveyed. * * * The conveyance thus operating to pass only the estate or interest held at the date of the deed, no covenant therein contained could bind a married woman, except to the extent of making valid the conveyance as to the estate or interest actually conveyed. Therefore no estoppel could arise as to the feme."

"Doubtless, the provision in the act of 1814 that no covenant or warranty in any deed thereafter made by a feme covert should in any way operate upon her and her heirs except to convey effectually from such feme and her heirs any right of dower or other interest in the real estate conveyed which such feme may be entitled to at the date of the deed, was prompted in the decision of Nelson v. Harwood, supra, in which the wife was held bound by the covenants, and which was doubtless considered an innovation upon the spirit, if not the letter, of, our legislative policy. Hence, at the first opportunity, the legislature corrected it."

The legislation in respect to this subject, after the passage of the act of 1814, differed in verbiage from the present statute. Section 2502 of the Code, as amended by the act of March 6, 1890, which, so far as it has any bearing upon the question in this case, is as follows:

"When a husband and his wife have signed a writing purporting or contracting to convey any estate, real or personal, * * * it shall operate to convey from the wife her right of dower in the real estate embraced therein, and pass from her and her representatives all right, title and interest of whatever nature, which at the date of such writing she may have in any estate conveyed or embraced therein as effectually as if she were at the date an unmarried woman. Such writing shall not operate any further upon the wife or her representatives by means of any covenant or warranty contained therein which is not made with reference to her separate estate as a source of credit, or which, if it related to her said right of dower or to any estate or interest conveyed other than her own, is not made with reference to her separate estate as a source of credit."

No other interpretation can be given to this statute than that which frees the wife from liability on the covenant or warranty contained in the conveyance as completely as did the prior statute, except when made with reference to her separate estate as a source of credit No reference being made in a deed to her separate estate, it is as if there were no covenant or warranty therein contained, so far as the wife is concerned.

Section 2295 of the Code, as amended by Acts 1805-96, provided that every contract thereafter made by a married woman which she has the power to make shall be deemed to be made with reference to her estate, which is made her separate estate by this chapter as a source of credit; and every such contract shall be deemed as intended to be made with reference to her equitable separate estate, also, if any she has, as a source of credit to the extent of her power over the same, unless the contrary intention is expressed in the contract; and in the enforcement of every such contract against her equitable separate estate a court of equity may in any case subject to the extent of her power over the same and of her interest therein the corpus of any real estate as well as the corpus of any personal estate settled to her separate use, but the corpus of such real estate shall not be subjected by a sale of the same, or any part thereof, unless it is admitted, or be made to appear, that the rents and profits of such real estate will not be sufficient to discharge the liabilities of such estate within five years; provided that, if the contract be a covenant of warranty in such writing as is mentioned in section 2502, it shall be subject to the provisions of such section.

It would clearly appear from the proviso in that statute that it was not intended to repeal, qualify, or limit that portion of section 2502 which declares that such "writing [deed] shall not operate any further upon the wife or her representatives by means of any covenant or warranty contained therein which is not made with reference to her separate estate as a source of credit, " etc.

The wife, therefore, is clearly not bound by any covenant or warranty in the deed unless made with reference to her separate estate as a source of credit The general warranty in the trust deed of 1897 was not made with reference to Mrs. Fulcher's separate estate, either expressly or constructively. The estate or interest in the land conveyed had none of the qualities or attributes of separate estate in Mrs. Fulcher. Hence she is manifestly...