Fitzgerald v. Allen

• Decision Date: 11 July 1921
• Docket Number: 21697
• Court: Mississippi Supreme Court
• Parties: FITZGERALD et al. v. ALLEN et al

89 So. 146

126 Miss. 678

FITZGERALD et al. v. ALLEN et al

No. 21697

Supreme Court of Mississippi

July 11, 1921

ESTOPPEL. Warranty deed held to estop wife and her heirs from asserting interest subsequently acquired by inheritance.

Since an outstanding paramount title acquired by a warrantor cannot be used to defeat the title of the warrantee, but will inure to the benefit of the warrantee, a warranty deed purporting to convey the fee in lands not a homestead, and in which the wife joins the husband, will estop the wife and her heirs from asserting against the warrantees any interest in such lands which she may have subsequently acquired by inheritance.

HON. F E. WILLIAMS, Chancellor.

APPEAL from chancery court of Coahoma county, HON. F. E. WILLIAMS Chancellor.

Bill by F. H. Fitzgerald and others against Henry Thomas Allen and others. From a decree of dismissal, complainants appeal. Affirmed.

Decree affirmed.

Maynard Fitzgerald & Venable, for appellants.

Mrs Lula Faye Cammack, by joining in a deed with her husband which purported to convey a fee simple title to lands in which he had only a life estate, and which she acknowledged as a wife only, was not estopped to set up her title subsequently acquired through the true owner of the fee, Leonard Cammack, the remainderman. McDonald et al. v. Rothgeb et al, 112 Va. 749, 72 S.E. 692; Ann. Cases 1916B, page 63; Childs v. McChesney, 89 Am. Dec. 549; Jackson v. Vanderhaden, 8 Am. Dec. 378; Sanford v. Kane, 133 Ill. 199; Menard v. Cabble, Ann. Cases, 1916A, 802; Ogre v. Street, Ann. Cases, 1916E, 518; Griffin v. Sheffield, 38 Miss. 359; Strawn v. Strawn, 50 Ill. 33; Danbrant v. Va. C. & I. Co., 23 L.Ed. (U.S.) 927; 18 Corpus. Juris. 155.

In Bull v. Beiseker, 16 N.D. 290, 113 N.W. 870, 14 L. R. A. (N. S.) 514, it was held, that where a covenanter has neither title nor possession, the covenants do not run with the land, so as to transfer the cause of action for the breach thereof, to remote grantees by operation of assumed conveyances of the property by the execution and delivery of deeds purporting to convey the same. The court declares that the foregoing principle is supported by the overwhelming weight of authority, and cites a number of cases to sustain it. Among the citations will be found the leading case of Mygatt v. Coe, 152 N.Y. 457, 46 N.E. 949, 57 Am. St. Rep. 521, which is strongly in point. Nixdorf v. Blaunt, 111 Va. 127, 68 S.E. 258.

We most earnestly submit that the above opinion correctly pronounces the law to govern the case at bar. We have carefully studied it from every angle and are at a loss to distinguish it.

A married woman, who unites with her husband in a warranty deed of his land, merely to enable him to pass the title free from her inchoate right of dower is not estopped from asserting in her own favor an after-acquired title to such land. Safford v. Kane, 133 Ill. 199, 23 A. L. R. 602, affirming Sanford v. Kane, 24 Ill.App. 504; Raymond v. Holden, 2 Cush. 264; 10 Ruling Case Law, par. 58, note 3.

In Menard v. Campbell, supra, among other things, the court said: "In Arthur v. Coverly, 98 Mich. 82, 56 N.W. 1102, it was held that a married woman uniting with her husband in a warranty deed of her property is liable on the covenant when she obtains all the consideration, which in that case was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband's interest being simply a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument and to prove it clearly and to show that she had brought herself within the rule, above set forth. Mutual Benefit Life Ins. Co. v. Wayne Co. Sav. Bank, 68 Mich. 116, 35 N.W. 853.

This the complainant has failed to do, and it necessarily follows that the wife's signature to the instrument was a nullity, and did not bind her subsequently acquired title. Childs v. McChensey, 20 Iowa 431, 89 Am. Dec. 545; Schoffner v. Grutzmacher, 6 Iowa 137; Erickson v. Johnson (Ia.), 152 N.W. 575.

We are not unmindful of the fact that some of the cases referred to are based in whole or in part upon certain enabling statutes, as has been said before, and are not to be understood as citing them to be exactly in point, but only to the extent of the principle involved.

Mississippi Cases. The following are cases decided by the supreme court of this state which hear upon the question of after acquired title: Torrey v. Minor, S. & M., Ch. 489; Bush v. Cooper, 26 Miss. 599; Clark v. Slaughter, 34 Miss. 65; Wrightman v. Doe, 24 Miss. 675; Andrews v. Andrews, 16 S.W. 346; Kyser v. Earhart, 64 Miss. 492; Griffin v. Sheffield, 38 Miss. 359.

The raison d'etre of estoppel in regard to after-acquired title is to prevent circuity of action. This being so, would Mr. Allen have had a right of action against Mrs. Cammack? Could he have gone into equity against her--would it lie in his mouth to say he was imposed upon directly or indirectly by her? He knew his rights fully, being advised thereon by eminent counsel. He knew the limited interest the husband had in the land, or is charged under the law with notice; he was cognizant of what interest, she, the wife, had in the property. It would ill become him to assume an air of injured innocence under the circumstances of this case. Had the rights of a third party intervened, a different aspect might appear. But here Allen still has the property and no one but himself can be damaged by what has occured.

The Code, section 2300, Hemingway's (section 2799, Code of 1906) prescribes the form for a married woman's acknowledgment. It is there set out that when a married woman unites with her husband in the execution of an instrument and acknowledges the same in one of the forms above sanctioned, she should be described in the acknowledgment as his wife; in all other respects, and when she executes any instrument affecting her separate property, real or personal, her acknowledgment shall be taken and certified as if she were sole; etc.

Mrs. Cammack had no interest in the land in question, other than the veto right of a homestead, and this Mr. Allen knew full well. Everybody connected with the transaction knew that she was only connected with the matter to that extent; and she signed and acknowledged the deed according to the requirements of the statute. In the body of the deed it is recited: Lula Faye Cammack, his wife, and in the acknowledgment, that the within named John S. Cammack and Lula Faye Cammack, husband and wife. From this it is plain to see that no one was deceived.

Section 2287 of Hemingway's Code (section 2774, Code of 1906) reads as follows: "All alienations or warranties of land purporting to convey or pass a greater estate than the grantor may lawfully convey or pass, shall operate as alienation or warranties of so much of the right and estate in such lands as the grantor could lawfully convey, but shall not pass or bar the right to the residue of the estate purported to be conveyed; nor shall the alienation of any particular estate upon which a remainder may depend, whether such alienation be by will or other writing or union of such particular estate with the inheritance by purchase or by descent, so operate by merger or otherwise as to defeat, impair or in any way affect such remainder.

The son of Mr. and Mrs. Cammack, Leonard, was the remainderman, who was to succeed to the property upon the death of his father. Lula Faye Cammack, the wife and mother, had no estate in the property which she could convey or pass. It was not within her power to do anything with the property in any manner whatsoever. This was known by all as a matter of law.

Conclusion.

We submit that first, Mrs. Lula Faye Cammack had a homestead interest in the property which is a mere veto power; second, that she could not have been sued for breach of any convenant by the grantee, Mr. Allen; third, that she acknowledged the instrument as wife merely, and did not participate in the transaction further than to sign the instrument; fourth, that Mrs. Lula Faye Cammack did not know of the proposition of Campbell to give a deed to her and her husband, and that she did not accept or agree to same; fifth, that Mrs. Cammack had no right coupled with an interest to any estate of the remainderman; sixth, that the equities are equal and Allen knew he was borrowing trouble when he bought this land with its defective title.

It is a pure proposition of law, there is no question of intention involved except the intention of Mrs. Cammack to sign as a life tenant, and no presumptions are to be indulged in, in view of the fact that all parties to the transaction were fully advised that she neither owned nor asserted any interest in the land under the will. Would Mrs. Lula Faye Cammack have been estopped to assert the after acquired title? If so, upon what ground--fraud, misrepresentation, expediency, or public policy? The first two are untenable, and the second two are not sufficient for laying down a rule of property. We contend that the authorities justify one in saying that she is not so estopped.

In view of the foregoing, the decree of the chancellor was manifestly erroneous and should be reversed and the relief asked for in the original bill of complaint should be granted.

J. W. Cutrer, Sam C. Cook, Jr., and J. C. Cutrer, for defendant.

We stated at the outset, that the facts in this case were simple, but an accurate statement of them has required sometime. So far as the legal phase of the case is concerned we think that they can be restated with great brevity as follows; On June 10, 1907, John S. Cammack and Lula Faye Cammack, executed a deed of trust...