Smith v. Ingram
| Citation | 40 S.E. 984,130 N.C. 100 |
| Parties | SMITH v. INGRAM et al. |
| Decision Date | 25 March 1902 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, Montgomery county; Coble, Judge.
Action by Christian Smith against H. C. Ingram and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.
Adams & Jerome, for appellants.
McIver & Spence and Douglass & Simms, for appellee.
On the 21st of January, 1878, the plaintiff was the owner of the land in controversy, lying and being in Montgomery county, N C., containing 133 acres, which she agreed to sell to one Lindsay Hursey for $130. The plaintiff, Christian Smith, was at that time a married woman, being the wife of J. L. Smith and has so remained the wife of said J. L. Smith until since the commencement of this action. In pursuance of said contract and agreement to sell, she and her said husband made and executed a deed sufficient in form to convey said land to said Hursey in fee simple, with a covenant of warranty of title to said Hursey, but not to his heirs, nor to his assigns. The said Hursey thereafter took possession of said land, and claimed to hold the same under this deed from the plaintiff and her husband, J. L. Smith, and the defendants claim under and by mesne conveyances from the said Lindsay Hursey. The plaintiff and her said husband were residents and citizens of the state of South Carolina at and before the date of said transaction, and the plaintiff is still a resident and citizen of said state. Said deed was probated according to the laws of South Carolina, but not according to the laws of this state, in that no privy examination of the plaintiff was ever taken. It was shown and admitted that under the laws of South Carolina at that time a married woman might sell and convey her own land, by and with the consent of her husband, without privy examination. And it is admitted, and the deed shows, that the husband joined the plaintiff in making and executing said deed. This action was commenced on the 16th day of September, 1895, for possession of said land, and for damages for the wrongful detention thereof; and defendants answer, and deny the plaintiff's right to recover, admit they are in possession of said land and plead the deed of the plaintiff and her said husband, of the 21st of January, 1878, to the said Lindsay Hursey, under whom they claim title, as an estoppel. And defendants contend that by reason of this deed, and the covenant of warranty therein contained, the plaintiff is estopped to claim title to said land, and that she cannot maintain this action. Defendants say that as the plaintiff could convey her land under the laws of South Carolina, and as she was a resident and citizen of South Carolina, and as the contract of sale and deed to Hursey were made in South Carolina, it was a South Carolina contract, and the deed conveyed the land to Hursey; or, if this is not true, that the warranty is a personal contract that the plaintiff was authorized to make by the laws of South Carolina; that it is binding upon her, and might be enforced there, and will be enforced here; that, this being so, the plaintiff is estopped, and cannot maintain this action. But upon a careful examination of authorities, we find that neither of the contentions of the defendants can be sustained.
Lord Coke says warranty is a covenant real, attached to the land, and runs with the estate, whereby the grantee, upon being ousted by title paramount, may vouch the grantor, and compel him to render other lands of equal value. 2 Co. Litt. c. 13, § 697 et seq. In Southerland v. Stout, 68 N.C. 446, the grantor conveyed to McQueen with general warranty, "which warranty the plaintiff acquired as incident to the estate derived from him,--a covenant which runs with the estate." Thus it appears that where there is a general warranty to the grantee, his heirs and assigns, it is attached to the land, and runs with the estate, and the heir or assignee may vouch. But it is a covenant real, and extends no further than the terms of the covenant carries it. My Lord Coke again says: "If a man doth warrant land to another without this word [[heirs], his heirs shall not vouch; and regularly if he warrant land to a man and his heirs, without naming assigns, his assigns shall not vouch." Co. Litt. 384b, 385b. So it is seen that, if the estate had passed to Hursey under the deed of plaintiff and her husband, the defendants, who are the assigns of Hursey, would have no interest in it, and could not have vouched the plaintiff. Warranties are now treated as personal covenants. This is so under the statute of Anne, the Revised Code (c. 43, § 10), and section 1334 of the Code, and was made so by these statutes and judicial construction, because real actions had been abolished, and actions of ejectment had been substituted in their stead, and there was no one to vouch. But the action of covenant can only be had where the party could have vouched under an action real. Southerland v. Stout, 68 N.C. 446; Rickets v. Dickens, 5 N.C. *343, 4 Am. Dec. 555. And when suits are brought on such covenant, and the grantee had been evicted from the whole of the land, the measure of damage was the amount paid for the land. Williams v. Beaman, 13 N.C. 483, approved in Markland v. Crump, 18 N.C. 94, 27 Am. Dec. 230; Nichols v. Freeman, 33 N.C. 99; and many other cases. The defendants having no right to vouch if this had been an action real, they have no right to sue on the covenant, and no right to defend under it. They have no privity or connection with the warranty, which was to Hursey alone. They have no interest in it, and can take no benefit under it, even if Hursey could have done so. And we now propose to show that this transaction was absolutely void, and no estate passed to Hursey under the deed of the 21st of January, 1878, and that the plaintiff incurred no obligation that can be enforced in law or equity.
The general rule is that executory contracts are governed by the law of the jurisdiction where they are to be executed, and if they are repugnant to the established policy of that jurisdiction, they cannot be enforced. An executory contract may be made in this state to be executed in New York, and it will be considered a New York contract, and subject to the laws of that state. But if such executory contract is made here, and no place is named as to where it shall be executed, it is presumed that it was to be executed here,--a North Carolina contract. And this doctrine applies only to executory contracts, and not to property. But there are well-known exceptions to that rule. There are contracts which are localized by the subject-matter of the contract, as this one is. All contracts and deeds for the sale and conveyance of land are local, and belong to the jurisdiction where the land lies, and will not be enforced when they are in violation of the laws and settled policy of this state. In other words, such contracts and conveyances are made by the law contracts and conveyances of the state where the land is. The law of constructive jurisdiction or contractual jurisdiction has never applied to contracts for or conveyances of land. And when the plaintiff made this sale and conveyance to Hursey, she made it as a citizen of North Carolina; that is, she was as much subject to the laws of this state as if she had been living here and made it here. Hursey was as much bound to take notice of the fact that she was a married woman as if she had been living here. This doctrine is well stated in Story, Confl. Laws (8th Ed.) §§ 38, 474, note "a"; Whart. Confl. Laws, §§ 278, 305, 331,--and sustained by Meroney v. Association, 116 N.C. 882, 21 S.E. 924, 47 Am. St. Rep. 841, and Armstrong v. Best, 112 N.C. 59, 17 S.E. 14, 25 L. R. A. 188, 34 Am. St. Rep. 473, and in The Kensington (decided Jan., 1902) 22 S.Ct. 102, 46 L.Ed. 190. But the direct question has been passed upon, and, it seems to us, settled, by this court, in Jones v. Gerock, 59 N.C. 190. It seems to us this question is settled, treating it as we must, under the authorities cited and many others; and it is a North Carolina transaction, unless we overrule the statute (Code, § 1256) and the many decisions of this state with regard to the execution of deeds by married women, and that the defendants can take no benefit under the transaction of plaintiff with Hursey. In Clayton v. Bose, 87 N.C. 106, the court uses this language: The case of Scott v. Battle, which has been cited with approval in more cases, in all probability, than any other case since it was filed, in 1881, is so full and complete in support of this opinion that we can hardly undertake to quote from it without doing injustice to the learned judge who wrote it. But it holds that at common law there was but one way by which a married woman could convey her land, and that was by fine and recovery; that our statute has provided another way,--more simple and less expensive,--by deed, in which the husband joins, and by privy examination of the wife. "But unless the terms prescribed in the statute are strictly complied with, she stands as at common law, and the deed is absolutely void." It is not claimed that this statute has been complied with, or attempted to be complied with, in this case, and it is therefore absolutely void. And it would seem "that the same reasoning must be a full answer to the defendants' demand upon the plaintiff for the restoration of the purchase money, which she has received and used." And "in no case will the law imply a promise on her part, and...
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