Towles v. . Fisher , 77 N.C. 437 ( 1877 )

^* READE, J., did not sit on the hearing of this case. The case is sufficiently stated by Mr. Justice Rodman in delivering the opinion of this Court. Upon issues submitted, and under the instructions of his Honor, there was a verdict for the plaintiffs. Judgment. Appeal by the defendant. This action is to recover a piece of land in Raleigh in the shape of a parallelogram, 3 feet wide on Fayeteville Street and of like width on Wilmington Street, the other sides being parallel. It is admitted that as to James Callum, one of the two parties plaintiff, the action is barred by the statute of limitations, so that it is in effect an action to recover an undivided half of the parallelogram.

The plaintiffs claim under the will of William Shaw, who died in 1827. By the sixth clause of that will he devises the land in controversy to his wife, Priscilla, for life; and by the seventh clause he devises to James Callum and Mary Callum (now Mrs. Towles), the plaintiffs in this action, "on the death of my wife, Priscilla, all the property, real and personal, belonging to my estate, which may be in her possession at the time of her decease, to be equally divided between (439) them," etc. In the same clause are found these words: "When I said above that my wife, Priscilla, should have, hold, and use the property to her bequeathed during her lifetime for her own comfort and convenience, it was not intended to preclude her from making donations to charitable or religious objects as she may think proper." The testator appoints Joseph Gales, his wife, Priscilla, and two others, his executors. Gales and the widow alone qualified.

By a codicil he devised that his wife, with the consent and advice of his executors, or a majority of them, should have power to sell and dispose of any part of the land left to her for life, whenever it should appear to her and them that such sale was proper and for her convenience and for the general interest of his estate, and that his wife and any two of his executors might make the deed.

In June, 1833, Priscilla, the widow, for a valuable consideration, conveyed to Primrose in fee the land in question. The deed does not profess to be made by virtue of any power in her under the will. Upon these facts the plaintiff Mrs. Towles contends that upon the death of Priscilla in 1847 she and James Callum were entitled to the possession of the land in question. The defendant denies this, and contends:

1. That as the land was not in the possession of Priscilla at her death by the terms of the will, it did not pass to the devisees in remainder. We do not think that by the use of these words, "which may be in her possession," the testator intended to give his widow an unlimited power to sell his land, which would be the result of the construction contended for. Such power is inconsistent with the very limited power given to her to make donations for religious and charitable objects, by which he probably meant nothing more than such moderate and reasonable donations of money as he had been in the habit of making; and it is especially inconsistent with the power given to her by the codicil to sell any part of the land with the consent of the executors.

(440) 2. We think it clear that the deed to Primrose was not in execution of the power given to the widow by the codicil. It may be, and probably is true, that the sale was proper for her convenience and for the general interest of the estate. But that is immaterial. The consent of a majority of the executors, or at least of those who qualified, was a condition precedent to the exercise of the power, and that consent did not exist. It was a condition which the testator had a right to prescribe. That Gales, who with the widow alone qualified as executors, had removed from the State, did not authorize her to sell without his consent. And no court can now substitute its judgment on the propriety of the sale for the consent which testator required to procede or accompany the sale.

In addition to this, when the donee of a power to sell has an estate or her own in the property affected by the power, and makes a conveyance of the property without reference to the power, the construction established by the decisions is that she intends to convey only what she might rightfully convey without the power. These doctrines are so generally accepted that we think no reference to the authorities in necessary. They may be found cited in the brief of the counsel for the plaintiff. The deed to Primrose conveyed only the life estate of Priscilla Shaw.

3. The defendant also contends that the plaintiff Mrs. Towles (for it is agreed by the parties that the estate of her husband need not be considered) is estopped by her acts in pais from asserting a claim to the land in question.

On this part of the case we have had considerable doubt. As to what actsin pais will estop a feme covert from alleging a title to land, it is difficult to state any general rule which will not be too general to be useful; and it is even more difficult to apply the general rule to the facts of the particular case. The undisputed facts seem to be these:

Mrs. Towles' estate accrued in possession at the death of Mrs. (441) Shaw in 1847, What was done on the premises by Primrose prior to that time was done under the estate for the life of Mrs. Shaw. It is not contended that any act of omission of Mrs. Towels before that time is of any significance.

From 1847 to 1874 the land remained in the possession of Primrose and his heirs. On 30 April, 1874, it, with some adjoining land, was sold by the heirs of Primrose at public sale, and bought by Fisher. Up to, at, or about the time of this sale the case was simply that of an adverse possession submitted to by Mrs. Towles, and it does not alter the effect of such possession whether he knew of her rights to the land so possessed or not. She was, during all that time, under a disability, which still continues, and the statute of limitations did not run against her. It is in evidence that she did not know of the sale by Primrose until after it was made. At all events, it is not alleged that she was present at the sale, and knowing that the land now in question was being sold, and knowing of her title or claim thereto, willfully concealed the same.

In August, 1874, after Fisher had paid $5,000 on the price of the land bought by him of Primrose, which included this land, he was first informed of the claim of Mrs. Towles to it. The heirs of Primrose procured a release of the land in question, to be drawn for execution by Towles and wife, which, on 1 September, 1874, was shown to Towles, and on the next day it was returned to W. S. Primrose, one of the heirs, unexecuted. The defendant then offered to prove that Towles, on returning the deed, said that his wife refused to sign it because it embraced half the wall on Wilmington Street; that she claimed the whole wall, but nothing beyond it. The judge excluded this evidence. We think (442) it was properly excluded, if for no other reason, because it was not offered to be proven that in fact Mrs. Towles had authorized her husband to deliver such a message, and a husband is not juremariti the agent of his wife competent to estop her by representations concerning her claims to land. For the same reason, the evidence of Fisher as to his conversation with Towels concerning his wife's claims was properly excluded. If he relied on them, as probably he did, he was guilty of negligence. We must assume that he knew that Mrs. Towles had refused to execute the release which Primrose had tendered to her, and that she claimed the whole parallelogram now in question. If he supposed that her refusal to sign the release was only because it included one-half of the wall on Wilmington Street, and he was willing to forego any title to that, common prudence demanded that he should procure her release for the rest of the parallelogram. It was negligence to proceed without it. If Mrs. Towles had personally told Fisher what it was offered to be proved that her husband told him as coming from her, it would have informed him of her claim and of her refusal to release it. And if she had assigned a reason for her refusal which reached only a small part of the land claimed, but did not offer to execute a release which would have avoided her objection, it ought to have put him on his guard. At all events, he cannot reasonably be supposed to have acted on the belief that Mrs. Towels informally and by a mere declaration released a claim which he knew that she refused to release by a binding instrument. That she assigned a partial or insufficient or even a false reason for her refusal did not annul the refusal as to the part that did not come within the reason; and she cannot fairly be considered as having done the greater part of what she was requested and refused to do, because the reason which she assigned for her refusal applied only to a small part of it. Besides, if Mrs. Towels had then and there said to Fisher, "I claim title to this parallelogram of land, but I promise to convey it to (443) you, and I will never set up my claim to it against you," is it not clear that by reason of her disability she would not have been estopped by such promise? Supposing that there had been a consideration for her promise, which in this case there was not, it would be the case of a purchaser from a woman whom the purchaser knows is married, but who contents himself with a deed to which she is not privily examined, or with a mere parol conveyance. All the cases say that she is not estopped by such a conveyance.

We have examined with care many of the cases cited in Biglow on Estoppel, 485, 492, and they all concur that a married woman who is under a disability to contract cannot be estopped by anything in the nature of a contract. To estop a married woman from alleging a claim to land, there must be some positive act of fraud, or something done upon which a person dealing with her, or in a matter affecting her rights, mightreasonably rely, and upon which he did rely, and was thereby injured. No one can reasonably rely upon the contract of a married woman, or on a representation of her intentions, which at best is in the nature of a contract, and by which he must be presumed to know that she is not legally bound.

In January, 1875, Fisher completed his purchase from Primrose by paying the residue of the purchase money and taking a deed which included the land in question. He says he held the land without objection from Mrs. Towles from that time until August or September, 1875, when he began to build, and had made considerable progress in building when he was notified of plaintiffs' claim to the land in question. But it has been seen that he was informed of Mrs. Tawles' claim in or about August, 1874. Probably he means only to say that he was formally notified of the claim in August or September, 1875, and not that he was then first informed of the claim of Mrs. Towles.

No doubt the defendant supposed that he had a good title to the premises, and was therein mistaken. But that he was deceived by anything that can in law be called a tort or fraud on the part of Mrs. (444) Towles, even supposing that she had personally said to him what he offered to prove that her husband said as coming from her, we see in the case no evidence to establish. Having notice of Mrs. Towles' claim to the title in August, 1874, and knowing that she had not released it in the only way in which she could by law do so, it was his negligence to proceed as if it had been released. In reversing the judgment, as we are bound to do, and remanding the case, it may be remarked that we have not been called on to consider, and have not considered, any claims or equities of the defendant arising out of the increase in value of the land by reason of his improvements. Any questions of that sort can be presented by an amendment of the pleadings in the Superior Court. This opinion and judgment applies to both the appeals in the case.

PER CURIAM. Reversed.

Cited: Scott v. Battle, 85 N.C. 191; Boyd v. Turpin, 94 N.C. 141;Hodges v. Powell, 96 N.C. 69; Weathersbee v. Farrar, 97 N.C. 111;Walker v. Brooks, 99 N.C. 210; Thurber v. LaRoque, 105 N.C. 313;Farthing v. Shields, 106 N.C. 300; Fort v. Allen, 110 N.C. 192;Williams v. Walker, 111 N.C. 609; Wells v. Batts, 112 N.C. 289; Exum v.Baker, 118 N.C. 547; Bizzell v. McKinnon, 121 N.C. 189; Strother v. R.R., 123 N.C. 199; Smith v. Ingram, 130 N.C. 106; s. c., 132 N.C. 964,965; Cameron v. Hicks, 141 N.C. 28; Rich v. Morisey, 149 N.C. 45;Herring v. Williams, 158 N.C. 9, 12, 23.

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