Hallyburton v. Slagle
| Decision Date | 11 June 1903 |
| Citation | 44 S.E. 655,132 N.C. 947 |
| Parties | HALLYBURTON et ux. v. SLAGLE. |
| Court | North Carolina Supreme Court |
On rehearing. Petition dismissed.
For former opinion, see 41 S.E. 877.
A landowner, with intent to defraud his creditors, gave a deed with warranty of title, in trust for the benefit of his wife for life, and her children after her death. Subsequently he was adjudged a voluntary bankrupt, and purchased the land from one claiming under a sale thereof by the assignee in bankruptcy. Held that, as against the children of his deceased wife, he was estopped from claiming title under the deed to him from the one claiming under the assignee's deed.
Merrimon & Merrimon and Shepherd & Shepherd, for appellant.
Chas A. Moore, Zeb Weaver, and Locke Craig, for appellees.
This is a petition to rehear the above-entitled case, which was decided at the February term, 1902, and is reported in 130 N.C. 482, 41 S.E. 877.
The assignment of error in regard to the defendant's claim for an estate by the curtesy in tract No. 2, known as the "Chunn Land," cannot be sustained. As the parties were married before 1868, and the land was acquired in 1877 the defendant was entitled to an estate by the curtesy at the death of his wife, provided she had died intestate, or had not disposed of the property by her will to some one else. Tiddy v. Graves, 126 N.C. 620, 36 S.E. 127. It appears in this case that Mrs. Slagle died, leaving a will, in which she devised the said property to the plaintiff. When a marriage has taken place prior to the dower act of 1867 (Laws 1866-67, p. 71, c. 54), and the husband has acquired land after its passage, the wife is entitled to dower, because, as soon as the land is acquired, the right of dower attaches to it. O'Kelly v. Williams, 84 N.C. 281. So, when the marriage has taken place before the date of the ratification of the Constitution of 1868, and the wife has acquired property after that date, the provisions of the Constitution in regard to the separate estate of the wife and her power to devise her property immediately become operative, and affect all of the rights in the property thus acquired; and the husband's estate by the curtesy, unlike that which existed prior to August, 1868, only becomes consummate upon the death of the wife intestate. Holliday v. McMillan, 79 N.C. 315; Morris v. Morris, 94 N.C. 613; Kirkman v. Bank, 77 N.C. 394. By the marriage before August, 1868, the husband acquired no such vested right in the future acquisitions of the wife as to prevent the application of the provisions of the Constitution and statutes to his right of curtesy. A mere expectancy or possibility of future acquisitions is not a vested right. Holliday v. McMillan, supra. Property is always acquired subject to the laws existing and in force at the time. O'Kelly v. Williams, supra.
The principal question in the case, and, indeed, the only one discussed before us, relates to the estoppel which plaintiff alleges arose out of a deed to Mr. Woodfin, and was fed by the title acquired by the defendant under the deed of Reynolds, assignee in bankruptcy, to him, whereby the plaintiff's title to the land was made good and perfect as against the defendant. The defendant, for a nominal consideration, and with intent to defraud his creditors, made a deed for the land to Mr. Woodfin in trust for the use and benefit of his wife for life, and after her death for the use and benefit of her children; and in May, 1868, upon his own petition, he was adjudged a bankrupt. His assignee sold the land, and it was bought by one Lang for the defendant, and the assignee afterwards conveyed it to the latter with the consent of Lang. Defendant's counsel contend that there was no estoppel arising out of the deed, because (1) plaintiffs cannot maintain an action upon the warranty in the deed to Woodfin; and (2) because by the acts of the assignee the land has been devoted to the satisfaction of the claims of creditors to whom it rightfully belonged, the covenant being "void and of no effect" as to them.
While the deed of Slagle to Woodfin was void as to creditors and as to their representative, the assignee in bankruptcy, if either of them should seek to set it aside, it was yet good and valid as between the parties to it; and the title to the land passed to Woodfin, as trustee, subject to be divested by any creditors who might seek to subject it to the payment of their claims. The defect in the title to the land was caused by the defendant's own wrongful act in making the deed with a fraudulent intent, and it would be strange indeed if the law should permit him afterwards to acquire a title through the creditors or their representative, the assignee in bankruptcy, and hold it in hostility to the one he conveyed and warranted. We do not think that the law will permit him to do so. It is not denied that, when a good and indefeasible title is transferred by deed, the vendor may afterwards acquire an independent title--such, for example, as a title by adverse possession under color--and hold it against his vendee, but the title so acquired must be consistent with the provisions of his own deed, and his covenants therein contained. Cuthrell v. Hawkins, 98 N.C. 203, 3 S.E. 672; Johnson v. Farlow, 35 N.C. 84; Eddleman v. Carpenter, 52 N.C. 616. But when by his deed the grantor conveys without any of the usual covenants of title, or when by the form or nature of the conveyance he affirms, either expressly or impliedly, that he has a good and perfect title to the land, though in fact he has a defective or imperfect title, and he subsequently acquires a good title thereto, such after-acquired title will inure to the benefit of his grantee by estoppel. Van Rensselaer v. Kearney, 11 How. 297, 13 L.Ed. 703; Ryan v. U. S., 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447; 11 Am. & Eng. Enc. (2d Ed.) p. 403; Hagensick v. Castor, 53 Neb. 495, 73 N.W. 932; French v. Spencer, 21 How. 240, 16 L.Ed. 97. In Van Rensselaer v. Kearney it is said: "If the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded on that footing between the parties, then, although it may not contain any covenants of title, in the technical sense of the term, still the legal operation and effect of the instrument will be binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted, at least so far as to estop them from ever afterwards denying that he was seised of the particular estate at the time of the conveyance." The proposition may be stated another way: Smith v. Williams, 44 Mich. 240, 6 N.W. 662. The general rule is that, when the deed contains no covenant of warranty, or other covenant sufficient to estop him, the grantor can set up an after-acquired title, unless he has either expressly or impliedly affirmed in the deed that he has a good title, in which case he will be estopped to set up the after-acquired title. This rule accords with common honesty and fair dealing. The covenant of warranty works an estoppel not only to prevent the circuity of action, which is sometimes given as the reason for it, but for other good and valid reasons. The grantor should not be permitted to impeach and nullify his solemn deed and act by alleging his own fraud and iniquity, as by claiming and setting up a title against his grantee which could not have existed but for his own fraudulent act and intent. It would be contrary to equity and good morals to allow him to take any advantage from the newly acquired title in such a way. Reynolds v. Cook, 83 Va. 817, 3 S.E. 710, 5 Am. St. Rep. 317. The principle would seem to be so clear and just as not to require a further discussion or citation of authority.
In this case it is apparent, we think, upon the face of the deed that the defendant intended to affirm, impliedly, at least, that he had a good title to the land. It was his purpose to convey the fee, which should be held by Woodfin for the use, benefit, and enjoyment of his wife and children; and this could not well be done, unless the title was not only good at the time he...
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