Wallin v. . Rice , 170 N.C. 417 ( 1915 )

CLARK, C.J., dissenting. Civil action. Plaintiffs are six of the heirs at law of Emily A. Rice, wife of defendant, who died without issue 8 April, 1915. On 3 May, 1913, she executed a deed in fee to defendant, describing the land in controversy, for the recited consideration of $1,000, containing full covenants of warranty. This deed was not executed in accordance with sec. 2107 of the Revisal, in that the justice of the peace did not find and certify in his certificate of probate that at the time of her privy examination the contract or deed was not unreasonable or injurious to her. The failure to observe the requirements of the statute makes the deed absolutely void.Singleton v. Cherry, 168 N.C. 404; Butler v. Butler, 169 N.C. 584.

The position that plaintiffs are estopped from claiming the land by the covenant of warranty in the deed is untenable. If the deed is void for noncompliance with the statute, the covenant of warranty is likewise void, as it is a contract between husband and wife materially affecting her estate.

Where the deed is void the mere fact that it contains a covenant (418) of warranty will not make it operative by way of estoppel, for, to make a warranty binding, there must be some estate conveyed to which the warranty may be annexed. A deed void as being given in contravention of a statute works no estoppel. Thus, a married woman will not be estopped by a deed not executed in the mode provided by statute.Green v. Branton, 16 N.C. 504; Smith v. Ingram, 130 N.C. 106; Scottv. Battle, 85 N.C. 184.

As the contract is void, the defendant cannot recover damages from his wife's estate for its breach, and that is especially true in this case, as the jury have found that defendant paid no consideration for the land.

No error.