Gray v. Mathis, 52 N.C. 502, 7 Jones 502 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 502, 7 Jones 502

Doe on the demise of CONSTANT GRAY v. SUSANNAH MATHIS.

Where, by a deed to a feme covert, a life-estate was- conveyed to her for her own life, it was Held that her husband had no interest in such estate except the right to receive the rents and profits during the coverture.

Where a feme covert, having a life-estate in land, made a deed purporting to convey it in her own name, without that of her husband’s being in the body,. but only affixed after the signature of the wife, it was. Held that it was void as to her on account of the coverture; and as to him, because not a party to it; and that no privy examination could give' validity ter such ao instrument.

Action of ejectment, tried before Osborne, J., at Spring Term, 1860, of Wilkes Superior Court.

Tbe plaintiff produced a grant for tbe land in question to James Gray, the father of the lessor of the' plaintiff, dated in 1199, and showed that the said grantee died some ten or twelve years ago. He then offered a deed from Gray, the grantee, to Edna Johnson and Milly Sales, married women, dated in 1832, which said deed does not contain the word “heirs” or any other words of inheritance, though there is a covenant to warrant and defend the land aforesaid to them and their “ heirs.” The plaintiff then offered a deed from the said Edna Johnson and Milly Sales to the lessor, which is alike deficient in words of inheritance, and which purports to convey the premises in their names, those of their husbands not being included in the body of the deed, but both are affixed with their seals to the instrument after those of their wives. There were certain forms of a privy examination endorsed on the latter instrument, and certain questions raised as to them, but these are rendered unimportant by the view taken of the case in this Court.

In submission to an intimation from the Court, the plaintiff took a nonsuit and appealed.

Boy den, for the plaintiff.

Barber, for the defendant.

Battle, J,

We fully concur in the propriety of the non-suit by the Judge in the Court below. In the deduction of his title, the lessor of the plaintiff claimed under a deed from one James Gray to Milly Sale and Edna Johnson, and a conveyance purporting to be a deed from the said Milly Sale and JSdna Johnson, but signed and sealed as well by their husbands (they being married women) as themselves. The deed from James Gray passed a life-estate only to the grantees for the want of the word “ heirs,” and that was not enlarged into a fee by the covenant of warranty “ to them and their heirs;” Seymour’s case, 10 Coke’s Rep. 97; Roberts v. Forsythe, 3 Dev. Rep. 26; Snell v. Young, 3 Ire. Rep. 379.

The grantees having life-estates only in the land conveyed to them, their husbands could not become tenants by the curtesy, nor acquire any other interest in the land than the right to receive the rents and profits during coverture. One of the grantees having died, her interest, of course, terminated, so that no question can arise about the validity, as to her, of the alleged conveyance from her and the other grantee to the lessor of the plaintiff. But if it could, we should hold as to her, what we do as to the other, that it is void as being the deed of a woman laboring under the disability of coverture. The husbands are not mentioned in the deed as parties to it, and they could not become so by adding their signatures and seals to those of their respective wives. If this doctrine needed authority, it is found in the cases referred to by the defendant’s counsel; Leefflin v. Curtis, 13 Mass. Rep. 233 ; Catlin v. Weare, 9 Ibid. 217; 2 Cruise Dig. 260, note 2. See also, Kerns v. Peeler, 4 Jones’ Rep. 226. This view of the case, renders it unnecessary to consider whether the privy examination of the wives was properly taken, for we suppose no person will contend that the privy examination of a wife to the execution of a deed, to which her husband is not a party, can be of any avail.

Per Curiam,

Judgment affirmed.