#### George Lane and others *v.*Daniel Patrick and Ruffin Granger.

*1*> From Craven. J

Husband and wife, being seised of a tract of land in right of the wife, agreed to convey the same in fee simple to a purchaser for a fair consideration ; and, in pursuance of this agreement, they conveyed by deed the tract of land to the purchaser, who executed his bonds for the purchase money. The husband died, and the wife not having been privily examined' touching the execution of 'the deed by her during her coverture, availed herself thereof, entered on the land, expelled the tenant who held under the purchaser, and avoided the estate. The purchaser died, and his administrator filed a bill praying to have the payment of the purchase money injoined. Demurrer to the bill overruled; for

The purchaser contracted for the wife’s estate of inheritance, not for the husband’s freehold in her right, lie obtained a conveyance, which transferred only the husband’s estate. To make it good to pass the wife’s estate, her private examination was necessary.

The nature of the contract, and the transfer in its incipient state, shew, that the agreement of the parlies was, that a conveyance effectual to pass the property agreed to be sold should be made. It is, therefore, unlike the case where the parties have done what they have stipulated to do; as where the agreement was, that the transfer should be without warranty, and such transfer was made, and tire title .prbved defective ; the purchaser could not complain that the vendor had not <lonp what he had promised to do.

The Court will therefore apply that universal principle of Equity, wliich forbids one party to take the benefit of a contract, whilst he withholds performance on his own part; and will arrest the money until he shall have performed it.

The deed must be considered as unexecuted for the purpose of having the effect intended; as an instrument sealed, but not delivered, where-individuals under no incapacity to contract are the parties. For as the Common Law has declared a delivery necessary to constitute a deed between such parties, the General Assembly have declared a private examination of a married woman necessary to make her deed effectual to pass her lands.

This was a bili filed in the Court of Equity for Craven county by George Lane, administrator of the estate of Charles Jones, deceased, and by Lewis Jones and others, heirs at law of the said Charles. The bill charged that *474George W. Daniel ami Sarah his wife, being seised in right of said Sarah of a tract of land situate in the county of Lenoir, and containing se\enty-fivc acres, agreed to convey the same in fee simple to one Charles Jones, in consideration of four hundred dollars, one half of which was to be secured to one Silas Jones, an illegitimate son of the said Sarah Daniel, and the 'other half to the said George W. Daniel. That in pursuance cf this agreement, George W. Daniel and Sarah his wife, by deed conveyed to the said Charles Jones the tract of land in fee simple; and the said Charles Jones executed two obligations with Tally Moseley, his surety, each for the sum cf two hundred dollars; one payable to George W. Daniel, and the other to Daniel Patrick, guardia;! of the said Silas Jones. That Charles Jones soon after died intestate, leaving the complainants, Lewis Jones and others, his heirs at law and next of kin; and administration upon his estate was granted to the complainant, George Lane. That the obligation given to G. W. Daniel liad been paid by the said administrator, who, b»ing desirous of closing his administration, and not doubting that the other obligation given to Patrick for the benefit of said Silas Jones was *to*he paid out of the assets of bis intestate, gave his own bond, with Tally Moseley his surety, to the said Patrick as guardian for Silas Jones, in lieu of the obligation of his intestate, which was thereupon given up to the administrator, and the amount thereof charged by him to the account of his administration, and the distributive shares of the next of kin thereby diminished.

The bill then charged that George. *W.*Daniel died, leaving the said Sarah, his widow, surviving him; and that she, never having been privily examined touching the execution of the said deed by her during her coverture, availed herself thereof, and entered on the said tract of land, and expelled the tenant, who held under the said Charles Jones, and avoided the. estate, and continued possessed thereof until her death : whereupon the same descended to her heirs at law.

*475That Silas Jones, being apprised of the circumstances, disclaimed any right to enforce the payment of the administrator's bond ; but died soon after arriving at age, and administration upon his estate was granted to Ruffin Granger, who had instituted suit upon the bond, and recovered a judgment in the name of Daniel Patrick, to whom the bond was made payable. The bill prayed for an injunction, which- was *granted;*and the Defendants filed a general demurrer to the bill. The presiding Judge sent the question arising on this demurrer to this Court $ and the Judges here were divided in their opinions. Henderson and Hall being of opinion that the demurrer should be overruled ; Taylor, Chief-Justice, contra.

Henderson, Judge.

The purchaser contracted for the wife’s estate of inheritance, not for the husband’s.freehold in her right, and has obtained a conveyance .which (tó make the most of it in its present form) transferred only the husband’s estate; but might, by the private.examination of the wife, have passed also her interest: ’ "And; no doubt can exist, but that the agreement of the parties was, that a conveyance effectual to pass the property agreed to be .sold should be made. This is evidenced- not only’by the nature of the contract, but by the transfer in its incipient state,. It is, therefore, entirely unlike the case where'the parties have done what they stipulated to do : — As in the case of a sale, of lands where the vendor has made a transfer : Although he may have transferred a defective title, the vendee cannot complain that the vendor has not done what he promised to do. If there was to be no warranty, the vendee has got what lie contracted for, and it was his fault or misfortune not to take one. If he was to have a warranty and has one, still he cannot complain that the contract had not been executed, although the vendor’s title was not good. I feel bound, therefore, to apply that universal principle of Equity, which forbids one party to take the benefit of a contract, whilst he entirely withholds per*476form anco on bis own parí j anil *to*arrest the money until be shall have performed it. For I look upon the deed in its present dress, as unexecuted for the purpose of having the effect intended *;*ns an instrument sealed, *but not*delivered, where individuals under no incapacity to contract, are the parties. For as the Common Law has declared a delivery necessary to constitute/ a deed between them, the General Assembly have declared a private examination necessary to make a deed, or an effectual deed (which is the same tiling) from a married woman, to pass her lands. The rule in each case Sows from the same source, the legislative will, although evidenced in a different manner.

As to the bond being payable to the wife’s son, or in trust for him, it makes no difference. He is a mere volunteer, and roust stand in the place of the vendor. The renewal of the bond by the administrator of the purchaser to the same person, does not alter its original nature. In Equity it is the same : each given upon the same consideration, and liable to the same rules of Equity. The demurrer must be overruled, and the Defendants answer.

Taylor, Chief-Justice,

contra. — 1 regret my inability to concur in the opinion of n>y brothers *",*because it best accords with my private sentiments of natural justice, that a purchaser should he relieved against the payment of the price of land, from which he has been evicted through a defect of tifie. But not being able to arrive at such a conclusion by my view, of the Law, the wisdom of which I am bound to-consider superior to any man’s wisdom, I will state concisely the grounds of iny dissent.

An injunction has been granted in this case, to stay a judgment at law, recovered under the following circumstances. Daniel and his wife executed to Charles Jones a deed for a tract of land, of which the wife was seised in fee, for the price of four hundred dollars ; to secure which sura, two bonds were given by Jones, with Moseley his security, each for two hundred dollars : one payable to Da*477niel Patrick, guardian of Silas Jones, a natural son of Daniel’s wife, for tlie benefit of said Silas; and soon af-terwards, Charles Jones, the purchaser, died. The bond given to Daniel .has been taken up by Lane, the Complainant, who administered upon Charles Jones’s effects. Lane gave his own bond to Patrick, in lieu of his intestate’s bond *;*and upon that bond, suit has been instituted ag’ainst Lane, by the administrator of Silas Jones, who died soon after arriving at full age. Upon the death of Daniel, his widow never having been privily examined according to the act of 175!, entered upon the land, so sold by her husband and herself, expelled the tenant placed on it by Charles Jones, and soon afterwards died seised ; whereby the land descended upon her heirs. The consideration of the bond having thus failed, Lane, the administrator of Charles Jones, together with the heirs at law of the latter, seek to be relieved from the judgment. The Defendants •have demurred to the bill.

No doubt can exist as to the legal operation of the deed from Daniel and wife. He acquired by the marriage, a freehold interest in the land during the joint lives of himself and his *wife;*and the only effect of the deed was to convey to Charles Jones, such estate as Daniel had. The execution of the deed by the wife was a nullity in respect to her right, unless the course, which the law has prescribed, had been pursued, to ascertain her consent. Though Daniel’s right only was in reality conveyed by the deed, yet it *purported*to operate upon the fee simple of the wife, whilst Daniel'endeavored to convey as much as by law he could do. This was the subject of the contract, and it is to be. presumed that the purchaser was aware of the ulterior steps necessary, to render the deed obligatory upon the wife. Without even looking into the title, there were plain and notorious facts, sufficient to satisfy any purchaser, that Daniel was about to sell his wife’s land : the deed was drawn in the name of the husband and wife ; she was called upon to execute it, and one half of the purchase *478money was made payable to her natural child. Here, then, was a full disclosure of the title which Daniel was about to sell; and fair notice given to the purchaser of Ayjja^. was necessary to its confirmation. There is not the slig'hest ground to impute to the seller, either fraud, misrepresentation or concealment.

Under this statement of facts, I apprehend that the purchaser could have had no remedy at Law. He had a right to ask for a warranty, or for covenants against all persons claiming title to the land *•,*and if he chose to take a deed without that safeguard, the rule of *caveat emptor*must prevail. The case of Bree v. Holbeck, in Douglas, 654, shews, that where there is no fraud, the purchaser is without remedy at Law, unless his covenants provide it: and in Cripps v. Reade, 6 Term Rep. 606, the distinction is taken between those cases, where money paid on a consideration which has failed, may be recovered back, and where it cannot, excluding the cases where a regular conveyance has been made, to which other covenants were not to be added. “ With the exception of a vendor or his *“*agent suppressing an incumbrance or a defect in the *“*title, it seems clear that a purchaser cannot obtain any *“*relief for any incumbrance or defect to which his cove- *“*nants do not extend : and, therefore, if a purchaser ne- *“*gleet to have the title investigated, or his counsel over- *“*look any defect in it, he is without a remedy. It has *“*even been held, that if one sells another’s estate, without *“*covenant or warranty for the enjoyment, it is at the *“*peril of the *purchaser;*because he might have looked *<{*into the title | and there is no reason he should have an *“*action by the Law, when he did not provide for hiin- *“*self.”*

The privy examination is substituted for afine, in which also the wife is privily examined touching her consent: and where a husband conveys his wife’s estate in England, it is the ordinary form of the conveyance, to contain a *479covenant on his part that the wife shall pass a fine. The proper covenant here would be, that the wife shall submit to a privy examination. It was once the practice of the Court of Equity to decree a specific execution of a covenant to levy a fine : but it was very absurd to compel a married woman to levy a fine, when the, efficacy of the conveyance is derived from her having done it voluntarily. Such a practice is therefore abandoned *•,*but the purchaser has still a remedy at Law, by an action cf covenant against the husband.*

It is also laid down in the authorities that Equity proceeds on the same principle with the Law, unless there be fraud in concealing the defect of the title. In proof of this, the, strong case of *Urmston v. Pate*is cited, in 3 Cruise, 91. In the, more recent case of Wakeman v. Rutland, in 3 Ves. Junr. 234, the Lord Chancellor observes, *ie*As to the extent of the covenants, there was a case about *ie*three years ago. An estate was bought; as to one 45 moiety, there was a clear.defect of title, which the cove-44 nant of the, purchaser had overlooked. He was evicted 44 of one moiety. He filed a bill in Equity, asserting a 44 claim to be repaid a moiety of the purchase money. He *iS*had taken his conveyance with the common *covenants; “*tiie eviction was not within the covenants. I felt the ■e hardship, but thought I could not raise an Equity, where “ there was no covenant to warrant the title.” It is held that the possession of land is no evidence of title, and no person in his senses would take, an offer of purchase from a man merely because lie stood upon the ground. The purchaser must look to his title, and if he do not, it will be gross ncgligence.† To sustain the bill, is, in my apprehension, to alter and extend the agreement of the parties, not to enforce it, and to sanction a principle which goes the whole length of permitting the recovery back of the money which has been paid in this case, and in every ether, where the contract has been executed.

*

 Sugden’s Letters, 35.

*

 1 Bos. and Pull, N. P. 267.

†

 13 Ves. 114.