George v. Brandon

Opinion by

Mr. Justice Brown,

Lloyd T. Brandon, the husband of Nellie F. Brandon, became the owner of the land in controversy by deed from Oliver P. Bechtel and wife, dated November 6, 1889. On July 6, 1866, Nelson Brandon, who then owned the land, executed a mortgage on it to Thomas J. Brode for $6,000. When Lloyd T. Brandon acquired title to the property this mortgage was a lien upon it. On March 6, 1895, he and.- his wife, Nellie F. Brandon, conveyed the property, still so encumbered, to William P. George, who subsequently conveyed it to Mary P. George, the appellee. The deed' from the Brandons to George was one of general warranty. On an execution issued upon a judgment obtained on the mortgage for $6,000 the property was sold by the sheriff on November 13,1897, to James J. Dull, who on February 14, 1898, conveyed it to Nellie F. Brandon, the appellee, one of the grantors to the grantor of Mrs. George. By virtue of this deed she subsequently evicted the plaintiff, Mary P. George, the grantee of William P. George, to whom Nellie F. Brandon and her husband, Lloyd T. Brandon, had given a general warranty deed for the property. After she evicted Mrs. George she sold the property to John H. Reichenderfer, the other appellant.

If Lloyd T. Brandon, the husband of Nellie F. Brandon, had acquired title to the property after it had been sold by the sheriff on the judgment obtained on the mortgage, which was an encumbrance upon the property at the time he sold it to George, and he had evicted the plaintiff, who held his general warranty that he would defend her “ against all and every other person or persons -whomsoever lawfully claiming, or to claim,” the premises, no question could be raised that the title so acquired by him would be worthless as against the appellee. If a stranger had purchased the premises, the remedy of the plaintiff would have been an action against Brandon on the covenant, but if he, her own grantor, had acquired the title in proceedings on an encumbrance against the property which he had sold under his covenant of general warranty, he could not have recovered it from her. The title which he gave to her grantor would be paramount to any that he could acquire under an encumbrance existing against the property at the time he sold it, and against which he covenanted to defend.

•The question before us is whether Nellie F. Brandon is estopped from setting up her deed from Dull against the appellee. She joined in the deed to George containing the covenant of general warranty. If, instead of having been the wife of Lloyd T. Brandon, she had at that time been his sister — an unmarried woman — tbe covenant would bind her as it binds him, and what he could not do in the face of it, she could not do. But she now contends that because she was his wife at the time they conveyed to George, she is not bound by her covenant. There was a time when she could have said this and have done what she is now trying to do. That was when a married woman was incapable of making a contract of covenant, and, upon being confronted by one that she had entered into in the most solemn form, could have pleaded her coverture as a discharge from it, however equitable and just it might have been. That was when the common law fetters upon her had not been removed.

In 1895, when Nellie F. Brandon executed the deed to George, she had the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, either in possession or expectancy, and could exercise the said right and power in the same manner and to the same extent as an unmarried person, except that she could neither mortgage nor convey her real property, unless her husband joined in the mortgage or conveyance, and could not become accommodation endorser, maker, guarantor or surety for another. By the act of June 8, 1898, the capacity of a married woman to contract as broadly as one unmarried became the rule, and her incapacity is the exception, limited to the mortgaging or conveying of her real estate, unless her husband joins, and to her inability to become accommodation endorser, maker, guarantor or surety for another. Except as so limited, she may do what her husband can do,- and when she does what she has power to do she is bound by her act.

' Nellie F. Brandon was not bound to join in tbe deed to Geoi'ge. All the interest of her husband would have passed to the grantee, if he alone had executed the deed. She had an inchoate right of dower, which was an expectancy to her, if she should survive him. If she had not joined in the deed and had died before her husband, the latter’s grantee would have acquired the whole estate, for there would have been no dower. But she did join in the deed for the purpose of conveying her right of dower — a right as to which she could contract by the express words, of the act of 1893. Having so contracted, she is bound by the covenant which is an essential part of her contract, from which she cannot be relieved, because it does not'come within either of the exceptions-to hér power to contract.

Our attention has been called to a number of authorities deciding that, where a wife joins her husband in a deed of his land, she is not a party to the deed, except for the purpose of releasing her dower in the estate conveyed, and is not estopped by covenants in a deed from setting up subsequent title acquired by her own mean's. It is a sufficient answer to this to say that there was no evidence that Mrs. Brandon acquired title from Dull by her own means. But we do not rest our decision upon this. We base it upon her power to contract under the act of 1893.

Judgment affirmed.