Clayton v. Rose

• Decision Date: 31 October 1882
• Court: North Carolina Supreme Court
• Parties: SUSAN J. CLAYTON v. SAMUEL W. ROSE, and others.

87 N.C. 106

SUSAN J. CLAYTON

v.SAMUEL W. ROSE, and others.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

EJECTMENT tried at Fall Term, 1881, of HYDE Superior Court, before Bennett, J.

Appeal by plaintiff.

Mr. Geo. H. Brown, Jr., for plaintiff .

Mr. W. B. Rodman, for defendants .

SMITH, C. J.

On November 2nd, 1855, Allen Burrus conveyed the land in dispute to Thomas S. Burrus in trust “for the sole use and benefit” of the plaintiff then the wife of William P. Clayton, “during her natural life, and that after her death the trustee shall hold and possess the land and premises aforesaid for the sole benefit and advantage of the heirs of her body begotten by her present husband, to be conveyed to her said heirs when the youngest shall have arrived at the age of twenty-one years provided the said Susan be then dead,” and in case there shall be no such heirs, then the remainder to be conveyed to say William, if living, and if not to his heirs.

On January 1, 1868, William P. Clayton and his wife executed a deed undertaking to convey the said land to the defendant Mahala, then a feme sole and since intermarried with the defendant, Samuel W. Rose, for the consideration of one thousand four hundred dollars, which with the assent of said Susan, and by direction of her husband, was paid to one Saunderson in discharge of a debt theretofore contracted by the husband in the purchase of other land. This deed was proved on November 12, 1879, by the subscribing witness and registered without any privy examination of the feme bargainor. The land passed into the possession of Clayton and wife soon after the making of the deed from Allen Burrus, and so remained until their deed to Mahala, since which she and her tenants have continued in uninterrupted occupation. Thomas Burrus, the trustee, died in 1866, leaving several children, all of whom are minors except the eldest, Allen, who arrived at full age in 1879. William Clayton died in November, 1878, leaving issue of the said Susan who are still living.

Before paying the money to Saunderson which was on January 1st, 1868, the said Mahala, in the presence of the plaintiff, asked her husband, the said William Clayton, if he was making her a good title, “and he replied that he had a good title if ever there was one.” The plaintiff herself was silent.

The action was begun on May 13th, 1879, against the defendants, Samuel W. Rose and William Jones, and at spring term, 1881, an amendment was allowed making said Mahala a party defendant, and a summons was thereafter issued and served on her on July 19th, 1881.

Upon these facts found by the judge, a jury trial being waived, the court was of opinion and so ruled that the deed from Clayton and wife did not convey the estate of the said Susan, because there had been no privy examination of her under the requirements of the statute.

2. That the statute of limitations under the findings was no bar to her recovery; and

3. That there was no estoppel produced by the declaration of said William as to the title, in the presence and hearing of the plaintiff, and to which she made no answer, nor by her direction of the payment of the purchase money to Saunderson. From the judgment rendered for the recovery of the land the defendants appeal.

The brief of the appellants exhibiting much research and learning, places the defence upon several grounds which we proceed to consider.

1. It is urged that an equitable estate in special tail converted into a fee under the act of 1784, for the separate use of the plaintiff, passes under the deed of Allen Burrus, and that her deed of January, 1868, without a privy examination is sufficient to convey an equitable estate for her life. We do not give our assent to the proposition that equitable estates in land vested in a married woman in the absence of a power in the instrument creating the trust, pointing out and authorizing a different mode, can be transferred without conforming to the statutory regulations applicable to legal estates. The act in force when the deed was executed declares that all conveyances in writing and sealed by husband and wife, for any lands, and duly proved or by them personally acknowledged before one of the judges of the supreme or superior courts, or in the court of the county where the land lieth, the wife being first privily examined before said judge or some member of the county court, appointed by the court for that purpose, whether she doth voluntarily assent thereto, and duly registered, shall be valid in law to convey all the estate, right and title which such wife may have in the said lands, tenements and hereditaments. Rev. Code, ch. 37, § 8.

The statute admits no distinction between legal and equitable interests and embraces every “estate, right and title,” which the married woman may possess in land, and such is the construction put upon it by the court. Thus RUFFIN, C. J., says: “But that (the exclusion of the husband from the wife's land) does not enable the wife to dispose of it as a feme sole, which she can only do when she has a power to that effect.” Newlin v. Freeman, 4 Ired. Eq., 312. Near the conclusion he adds in the same opinion: “As there was therefore no power in the marriage articles which comprised after-purchased lands, and no power of devising it reserved to the wife, in the deed which she took to her trustee, we can only look to this, as to any other ordinary trust of real property for a married woman, and she can convey the land only by the...