Nicholson's Lessee v. Hemsley

(EASTERN SHORE.) EJECTMENT, brought to April term, 1794, for one undivided third part of a tract of land lying in Talbot county, called Hopton, containing 820 acres. The defendant took defence upon warrant, and pleaded the general issue. Verdict for the plaintiff for an undivided third part of the tract of land called Hopton, according to certain metes and bounds described upon the plots returned in the cause, beginning, &c. including 320 acres, except 20 acres described by the following metes and bounds upon the said plots, beginning, &c. to contain 20 acres round the court-house % and verdict for the defendant for the residue. Judgment upon the verdict, &c<.

The defendant appealed to the court of appeals, where the cause was argued at June term, 1799. This case comes before the court of appeals upon a bill of exceptions, on the face of which three points appear worthy of consideration. First. Is the clause in the deed from Banbury and wife to Hemsiey a warranty, or is it only a covenant to warrant ?

By the appellant it is contended to be a warranty, and to prove it such he relies on Co. L t. 383. b. 384. a. Why cannot a married woman during coverture do any act binding upon her ? Because she is presumed to be under the compulsion of her husband. But the reason does not apply to this case, because the act of 1715 provides for her private examination.

A recovery as ⁴¹³ well’ as a fine will bar a married woman, because of her private examination. But a deed will not, because there is no power to examine the wife. 1 Bac. Abr. 302. The season of the inefficacy of such a deed is good in En-glands but does not hold good in Maryland since the act of 1715.

A feme covert is bound by a fine where she is a party, because of her private examination, which excludes the idea of compulsion by the husband. 2 Bl. Com. 355. So, too, does the acknowledgment of a deed by a feme covert, under the act of 1715, exclude the idea of compulsion by the husband. The act of 1715 introduces a mode of conveying by femes covert analogous to the common law mode of conveying by fine, and was intended to create an easy and effectual mode for wives to convey.

No doubt by either mode the wife may convey, and effectually bind herself and all claiming under her. But can she in either case, or in both cases, bind herself by a warranty ? It is contended that the two cases stand upon the same ground, being both equally acts of record. A fine is nothing more than a covenant between the parties, recorded before the justices.

Cruise on Fines, 12. in the note., See the form of the concord on a fine. Cruise on Fines, 39. Upon such a proceeding there is nothing to distinguish it from a deed of bargain and sale with warranty under the act of 1715. The latter is only a covenant recorded by the justices.

If there is a difference, it is in favour of the latter; for by the act of 1715 the private examination must be certified ? in the case of a fine it is presumed. The concord recorded is not more operative in words than the covenant of a deed recorded. And the admitting of the latter to record is certainly as well guarded as the former. A feme covert by fine may bind herself to warrant lands. 2 Com.

Dig. 561. 2 Saund. 177. 180. The ⁴¹⁴ reason urged, that a married woman may convey and not covenant, is overruled. In fact, the concord of a fine js gut a covenant enforced. The power to convey is the principal; the warranty is but an accessory ; the power to do the one necessarily draws after it the power to do the other.

Under the act of 1715, in the case of a man, the provision only goes to the passing of lands, &c. or, in other words, to conveying, which necessarily draws after it the warranty; so with married women joined with their husbands, and privily examined, to protect them from coercion, they have power to convey; and this, as in the case of a man, draws with it the power to warrant. Since the act of 1715 a married woman joined with her husband, and protected as that act directs, from the coercion of her husband, is as competent to convey to all intents and purposes as a single woman, and that power to convey, which is the principal, draws after it the power to warrant. Thirdly. The three daughters making but one heir to the common ancestor, and having never been possessed, must join, and cannot make separate demises for their respective parts to try their titles separately.

In all cases where the right descends from one common ancestor, coparceners must join; otherwise, if they claim from different ancestors. 4 Com. Dig. 309. 2 Vin. 59. pl. 17. They make but one heir, and do not each make a part of an heir. Co. Litt. 163. b. 164. a.

If coparceners be disseised before partition made between them, they must, in a possessory action, all join, Upon the bill of exceptions in this case, two points arise. '1 he appellant in this court, and the defendant in the court below, claims under a deed executed the 24th of June, 1727, by Thomas Banbury and Esther his wife, by which they conveyed the premises in question to the father of the appellant in fee, with a warranty against them respectively, and especially against the heirs of Esther. The estate conveyed was the estate of Esther, and which she held in tail, and the plaintiff below, the appellee in this court, claims as heir in tail. To rebut this claim the appellant offered to show the warranty, and that assets in fee-simple, to the value of the land in dispute, had descended from Esther to the appellee. The first point, therefore, is, can a feme covert enter into a warranty to bind her heirs, so that she and they may be rebutted from recovering the same land by ejectment l Antecedent to our act of assembly which enabled the conveyance by a feme covert upon a private examination before a judge of the provincial court, or two county justices, there was no mode of conveying the real estate of a feme covert, except that established in England by fine levied in some court of record, where the wife was then privately examined by the court, or under a commission specially issued by the court for that purpose.

Our act of assembly was intended to facilitate conveyances, as well as to avoid the expense of levying a fine in all cases of coverture. Antecedent to that act, fines were common in this country% and the mode of examination prescribed by our act of assembly was intended in lieu of the fine, and to give the same powers to feme coverts under such private examination, as they had of disposing of property under a fine. It is a remedial ⁴¹⁶ law, and ought to have a liberal construction. 5 T. R. 180. But it is contended, that although the act of assembly gives a power to convey, it does not give a power to bind by covenant of warranty, which, it is contended, is distinct from the conveyance.

But if the act gives a power to convey, which is the greater power, is it not just and reasonable that it should give all powers to make that conveyance effectual and binding, not only on the feme covert, but also on her issue. The reason why a fine binds the feme covert and her issue, is on account of the private examination. 3 Atk. 712. And as there is a private examination by our law, there being the same reason there ought to be the samo law. There can be no injury or damage resulting from this construction.

In England a woman may bind herself by fine j and a fine may be made without a warranty. But if a warranty is annexed to it, she may be vouched on that warranty. It was alleged by the Attorney-General, in the court below, that the reason is, because the covenant in the caption of the fine to warrant makes part of the fine itself, and the statute in England, binding thelieirs of the feme covert by the fine, binds them by the warranty which makes part of it. He alleged also that the covenant in this case to warrant, made no part of the conveyance, which was good without it to- pass the land j that a covenant to make further assurances did not bind, though it was annexed to the deed of a feme covert.

To these objections it is answered, that although a warranty is made a part of the fine, and the party may vouch a Jeme covert upon such warranty ; yet there is a manifest difference between vouching or rebutting under a warranty, and bringing a personal action to recover damages. A covenant to make further assurance is merely personal, and a feme covert could no more bind herself by such covenant, than she could by a bond». I& ⁴¹⁷ is collateral to the passing of the land. One could neither vouch.nor rebut upon such a covenant.

But in the deed made by Banbury and wife, the clause under which the appellant shelters himself is not a covenant personal, hut a warranty, making part of the conveyance upon which he may rebut. See Co. Lit. 383. b. 384. a. It is further to be observed, that the Attorney-General’s argument is not law, as he contends for it; for an action of covenant for damages upon the fine of a feme covert, is no more essential to such fine, than a warranty under our act of assembly. If the statute in England gave the power to a feme covert to bind herself by a warranty, for the purpose of being vouched or rebutted of any claim by her or her heirs, yet it gave no power to support a personal action against her for damages.

We see, however, such an action of covenant may be brought against her. 2 Saund. 177. 180. If an action of covenant may be brought for damages against a feme covert in England, because the deed is made good by the private examination, the same reason making the deed and warranty good in this case, she or her heirs may be rebutted. The same argument is urged in Saunders against the action of covenant, which the Attorney-General urged in the court below, but it was overruled. A bargainee cannot vouch a warranty because he comes in in the post, but he may rebut.

Saund. Uses & Trusts, 432. Co. Lit. 365. a. 385. a. 2 Roll. Abr. 786. 787.

Shep. 327. 5 Bac. Abr. 447. There can be no voucher to warranty upon an ejectment, because it is not a real action. Hob. 26.

Yet it may be given in evidence (as we offered to do in this ease) to rebut. 1 Co. 120. b. 10 Co. 97. b. If the warranty is good, of which there is no doubt, the warranty of tenant in tail, with assets descending on the issue, binds him. Harg. Co. Lit. 374. 1 Salk. 245.

And so it has been decided in our general court. ⁴¹⁸ If the court of appeals should be of opinion with the appellant on this point, the judgment must be reversed. But if they should be of opinion against the appellant on that point, yet, if sufficient appears on the record to show that the plaintiff in ejectment ought not to recover, they must reverse the judgment on the whole record now before them. This brings me to the second question. As she was not seised at her death, and her issue have never been seised since, they do not show any title by possession in themselves ; but claim and show title as heirs in tail to Mrs. Banbury.

They must, therefore, all join in the action claiming under the seisin of their ancestor, because all three parceners make but one heir. The action being brought by one parcener, she is not heir, and cannot support the action without joining the others. See Co. Lit. 163. b. 164. a. 1 Bac. Abr. 444. 2 Vin.

Abr. 39. pl. 17. Upon the whole, it is contended for the appellant, that his construction of the law is founded upon reason, upon convenience, and upon universal practice; that no fines have been levied since the act of 1715, for conveyance by femes covert, and that great inconvenience would result from a contrary construction at this late period; that his con ⁴¹⁹ struction tends to the quieting of possessions and seeuring of purchasers who, as in this case, have honestly , and fairly bought and paid for, and enjoyed, the property, and improved it for more than seventy years. By the common law, every deed executed by a feme covert is absolutely void. No estate could pass by any such deed; no action personal or real could be supported by such deed.

By the common law a feme covert could only convey her estate in lands by fine, which is said to be a feoffment of record, or by common recovery, which, though fictitious, is a recovery of the lands on a suit instituted, and by judgment of a court having competent jurisdiction. In this state a feme covert may convey her lands by fine, or by recovery, as in England. She cannot be debarred of her real property, according to the laws of this state, in any other manner except by executing a deed of bargain and sale, and acknowledging the same according to the act of 1715, c, 47. s. 10. According to that act, it is only by deed of bargain and sale, executed by her, and acknowledged as the act requires, that she can be debarred from claiming her real estate; for the enacting clause (sect. 8.) of that act is confined to deeds operating as “ deeds of bargain and sale only and the 11th sect, to a such writing indented.” As by the common law the execution and acknowledgment of such a deed by a feme covert would have been totally void to every purpose, so now her execution and acknowledgment can have no further force and efficacy, than the expressions of that act of assembly give it.

It simply declares, that though signed by her, it shall not have force to debar her or