Cole's Lessee v. Pennington

Alvey, J., delivered the opinion of the Court. Two bills of exception were taken in this case ,• but there is, in truth, but one question involved, and that is, whether the indorsement upon the deed from Harriet P. Knighton to Martha R. Yeates, under which the plaintiff claims title, has any such legal effect as will defeat the plaintiff’s right to recover in this action. The deed of assignment in question was absolute and unconditional on its face, and in that form was executed and acknowledged; but after the acknowledgment, and before the deed was filed for record, the husband of the assignee, the latter being a féme covert at the time, thought proper, of his own motion, and without the knowledge or sanction of his wife, to indorse upon the deed, immediately under the acknowledgment, the following condition: “The obligation to the above deed is, that Harriet P. Pennington and D. H. Pennington are to have a home in the above described premises during their lives or pleasure, and at their death, to the children of said Dr. H. P. P. Yeates and Martha R. Yeates.” This indorsement is without signature, and the deed of assignment, with the condition appended, was filed for record, and was recorded; but, afterwards, the condition was erased from the original deed, but by whom it does not certainly appear. The Court below was clearly in error, both in admitting this condition in evidence, and afterwards instructing the jury, “that the evidence showed that the plaintiff’s lessor and the defendant both claimed title under the deed from ⁴⁸⁰ Harriet P. Knighton to Martha R. Yeates, and that under the memorandum