Goodenough v. Fellows , 53 Vt. 102 ( 1880 )

The opinion of the court was delivered by

Powers, J.

Mrs. Fellows joined. with her husband in the mortgage deed of April 20, 1870, and in the covenants of warranty contained in said deed. All the interest Mrs. Fellows then had in the granted premises was her inchoate right of homestead.

Since the execution of this mortgage deed Mrs. Fellows has acquired a title to the same premises paramount to the title conveyed by said mortgage, and the defendant Langmaid insists that she is estopped by her former covenant from claiming this latter title to his prejudice. Our statute (No. 17, Acts of 1865) declares that the joining of the wife in a mortgage deed, conveying the homestead, shall have no other effect than to bar her claim to such homestead against such mortgage.

Sec. 2, chap. 65, Gen. Sts., declares that the wife shall not be bound by the covenants in the joint deed of herself and husband of her real estate. What might be held in equity respecting an after-acquired title of the wife to her separate real estate which she has once conveyed for full consideration with a general covenant of warranty, is unnecessary now to consider.

! The ordinary rule, that a party, conveying land with covenants of warranty, cannot set up an after-acquired title to the same land, is founded in the liability of such grantor to answer in damages for the breach of the covenants of his deed. Rawle on Covenants, 4th ed., 393. But a married woman is not liable in damages for the breach of her covenant; because she never was bound by it; and no right of action against her can be based upon it. If she sets up a newly acquired title, she does nothing legally inconsistent with her former obligations. Upon general principles, therefore, it is clear that the defence here attempted cannot prevail. The other questions in the case are unimportant.

The decree is affirmed, and cause remanded.