
    J. M. Fletcher v. Martha A. Coleman et al.
    
    1. "Warranty. Husband and wife. Liability of the wife on ¡joint warranty with the husband. Estoppel. If land is conveyed to the wife, with authority to her by joint deed with her husband to dispose of the same, and she join her husband in a deed for the land, with covenants of warranty, such warranty can only affect her by way of estoppel, if she attempts to assert any title in opposition to the one thus warranted. She would not be liable on her covenants in the joint deed. And it would not prohibit others from acting as trustees for her, and thereby secure her a benefit.
    2. Same. Same. Same. Case in judgment. A tract of land was conveyed to the wife, with authority to her to dispose of the same by joint deed with her husband. She joined her husband in a conveyance of the land to a third person, with covenants of warranty. After the execution of this deed, the original vendor filed a bill, and procured a decree for the sale of the land, to pay the purchase money. The trustee of the feme covert bid off the land for her, and gave bond and security for the purchase money. Subsequent to the salo, and before any title was vested in the feme covert, the parties and the sureties entered into an agreement by which the sureties paid the trustee $1,000, and were substituted as the purchasers. Held, that the wai--rantee of the wife could not be substituted to the title, the wife having acquired none, and not being liable on her warranty; nor could he be indemnified out of the $1,000 paid by the sureties.
    EROM SHELBY.
    At the November Term, 1858, OaRUTiiers, J., presiding, the bill was dismissed on demurrer. The complainant appealed.
    Poston & Scruggs, for the complainant.
    The demurrer admits the truth of the several allegations of complainant’s bill.
    
      The allegations of the bill admitted, the case stands as though Martha A. Coleman was the present holder of the estate acquired at the sale by the clerk and master, and the only question presented for the adjudication of the Court, is, whether. that estate, the estate of a married woman, acquired subsequently to her conveyance with warranty, enured to the benefit of her vendee, whose title, under her previous deed, had failed. Mark v. Willard, 18 K H., 389.
    It is said that it will not, because a married woman cannot be held liable for damages after the death of her husband, upon the breach of a covenant of warranty; and that, therefore, the reason of the rule which causes the subsequently acquired title to enure to the benefit of the vendee, does not apply. Such is not, however, the course of decision in this country.
    The Courts in this country have holden “ that, although by a married woman’s joinder with her husband in a covenant of warranty, she cannot be held liable in damages after his death; yet the covenant will estop her, and those claiming under her, from setting up any claim to an after acquired title. Rawle on Cov. for Title, p. 429; Hotoler v. Shearer, 7 Mass. R., 21; Ooleord v. Sioan, 7 Mass. R., 291; Wash v. Spofford, 10 Mete. R., 192; 2 Kent, 167, (4th Ed.;) mil’s lessee v. West, 8 Ohio R., 226.
    In the latter case it is said: “ These decisions (referring to the cases cited above, which are- referred to and approved,) may not seem to be founded upon the reasons which are usually assigned why the covenants in a deed should operate by way of estoppel, that is, to prevent circuity of actions; still they seem to us reasonable, and sucli as tend to tbe furtherance of justice; and when a married woman undertakes, in conjunction with her husband, to convey his land with covenants of warranty, it is sufficient to protect her from the payment of damages for the breach of these covenants. For all other purposes they should be held operative.”
    See, also, the case of Massie v. Sebastian, in 4th Bibb’s (Ky.) R., 436, in which the Court held that “it is perfectly clear that neither Breckinridge or his wife, after the acknowledgment of the deed to Sebastian, would be permitted to claim in opposition to their deed, by alleging that they had then no estate in the premises ; and as their heirs claiming through them, and any stranger to whom they might sell, can be in no better situation, they must be, also, equally estopped.” And cases cited in 4 Bibb, 486.
    The case cited in 17 Johns. R., 167, Jackson v. Van-derheyden, has been followed by the case in 6 Wendell, 9, Martin v. Dwelly and they were decided without argument or authority submitted. The case of Wight v. Shaw, 5 Cush. R., 65, is not a case in point. There the conveyance embraced “all the right, title and interest which the wife then had,” being one-sixth of a certain estate, and the effort was to make a subsequent interest, descended to her by death of other parties, possessed at the date of her covenant, pass by her conveyance.
    W. Gr. Thompson and Sullivan, for the defendants.
   CaRUTHERS, J.,

delivered the/opinion of the Court.

Vance sold to Hanna lot 230, in Memphis, and took his note for the purchase money, in 1847, reserving in the deed a lien. In 1849 Hanna sold and conveyed part of the lot to Antwine, who in 1853 .conveyed the same to Martha A., wife of "Walter Coleman, with authority to her, by joint deed with her husband, to dispose of the same. This power was exercised by her, with her husband, in 1854, by sale to complainant, Eletchor, for the consideration of f!750, with covenants of warranty. After this, the original vendor, Vance, filed a bill to enforce his lien for the purchase money. A decree was made in his favor, the whole lot sold and purchased by E. M. Yerger, as trustee for Mrs. Coleman, at $1,175. Defendants, Pitman and Taylor, became the sureties, in a note at seven months, for the amount of the bid. By an arrangement between the parties, the sureties were substituted as the buyers, and upon payment of the note obtained the title.

It is charged that they gave Mrs. Coleman a bonm of $1,000 for the privilege of substitution.

This bill is filed by Eletcher to assert his right to the title obtained by Mrs. Coleman at the Chancery sale, by way of enurement, as the title conveyed by her and her husband, to him, by their deed with warranty, in 1854, has thus failed. It is charged that the intervention of a trustee, and the' substitution of Pitman and Taylor," were all fraudulent contrivances to defeat the complainant in his right to the benefit of the title acquired by her, as the best bidder, at the Chancery sale.

The demurrer to this hill was sustained, and we think correctly.

The wife was not liable on the warranty in the joint deed to Pletcher. It could only affect her by way of estoppel if she attempted to assert any title in opposition to the one thus warranted. It would not prohibit others from acting as trustees for her, and thereby securing her a benefit. She did not, in any view, by the facts stated, become invested with a title that could enure to others for any purpose. The incipient step by bidding off the property, had only been taken, and without having paid anything towards the consideration, the benefit passed to those who were bound as sureties for the bid, and they, by paying it, properly became invested with the title. That she obtained a bonus of $1,000 in the transaction, can make no difference whatever. The only ground upon which the complainant can go in this case, is 'that the best title was obtained by his vendor under this sale, and that it should, in equity, enure to him, in aid of the defective title before acquired from her. That principle is, certainly, correct when it applies. But no title ever accrued to her, or any one for her benefit, nor did she ever pay any thing for it. She preferred the $1,000 to getting the title by paying the $1,175. The true title then passed to Pitman and Taylor, and the complainant must rely upon his warranty for his loss.

It is also objected that the sale is not good under the Chancery decree as to the complainant, because he was not a party. That was not material. The vendor’s lien is fixed upon the land, and he can enforce it without making all who may have bought it from or under his vendee, parties. He has only to do with the thing sold, and his debtor for the price. It is not necessary to incumber such cases with intervening purchasers, and, thereby, increase the burthen by an accuprdation of costs.

Affirm the decree.  