
    CAMMACK v. CARPENTER.
    • Equity Pleading; Husband and Wife; Married Woman’s Act; Equitable Estoppel ; Laches.
    1. A mere reference in a bill in equity to the records or registry of deeds, existing independently of the record of the particular cause, cannot be considered as bringing such records before the court and making them parts of the bill, and the failure to present such deeds, or copies thereof, to the court, is ground for demurrer.
    2. When a husband conveys his real estate to another, who in turn immediately conveys it to the wife of the first grantor, and the two deeds, constituting one transaction are both recorded together, the deed to the wife is, within ' the meaning of R. S. D. C., Sec. 727, a gift and conveyance from the husband.
    3. When a wife so acquires real estate, she takes it subject to her common law disabilities, and can only convey it by. the joint deed of herself and husband, and upon privy examination and acknowledgment separate and apart from her husband, as prescribed by R. S. D. C., Secs. 450-1-2.
    4. A deed by the wife alone in such a case is void; and equity will not interpose to afford aid and support to an invalid deed of a feme covert, made in disregard of statutory requirements.
    
      5. When a wife acquires the title of property by gift and conveyance from her husband, and subsequently, by direction of her husband, attempts to convey the property by her separate deed to a creditor of her husband, whose debt is thereby satisfied, which deed is void at law for the non-joinder of the husband, and the husband upon the death of his wife acquires the property by deed from her heirs, he and his grantees are not equitably estopped to assert title to the property, as against the creditors of the grantee in the void deed from his wife.
    6. Laches and undue lapse of time constitute a good defense in equity, and one that may be availed of by demurrer.
    No. 178.
    Submitted January 10, 1894.
    Decided May 7, 1894.
    Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, sustaining a demurrer to a bill to establish a lien upon certain real estate for an indebtedness alleged to be due the complainants.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    The appellants, William Cammack and George Decker, partners trading as Cammack & Decker, filed their bill and amended bill alleging themselves to have been creditors of a certain John P. Carpenter, deceased, at the time of his death in August, 1891, and seek to subject to the payment of their claim a certain piece of real property situate in the city of Washington, in which it is alleged Carpenter had an equitable interest or estate. The original bill was filed on the 16th of June, 1892, and the widow and heirs at law of Carpenter, and the surviving husband and heirs at law of a certain Rebecca M. Lane, deceased, together with certain other parties, are made defendants. Both the original and amended bills were demurred to, and the demurrers being sustained, the bill as amended was dismissed.
    It appears from the allegations in the amended bill, that George A. Lane, being then owner of the piece or parcel of real property in question, on the 21st of January, 1875, by the joint deed of himself and his wife, Rebecca M. Lane, conveyed said piece or parcel of real estate to John J. Johnson, who thereupon immediately conveyed the same property to Mrs. Lane, the wife of Lane, the grantor, and the two deeds, constituting one transaction, were both recorded together. It is alleged “ that said transfers were wholly without consideration, and were made solely for the purpose of placing the record title of the defendant Lane in his wife, without divesting him of the control and beneficial ownership of said real estate, and to cloak his real ownership thereof.”
    It is then alleged that George A. Lane was indebted to Carpenter in the sum of $540, and that Mrs. Lane, the wife, at the request of her husband, attempted to convey the property by deed executed by herself alone, to Carpenter, in consideration of the release by the latter of such indebtedness due by the husband. This deed by the wife alone was made on the 15th day of July, 1875, and it has never been recorded. Why the husband did not join, it is not attempted to be explained, nor is it alleged that it was ever contemplated by the parties that he should be a party to the deed.
    It is further alleged that on the said 15th day of July, 1875, at the instance of said Carpenter, Mrs. Lane executed another deed, without the joinder of her husband, whereby she attempted to convey the property .to Ella V. Lipscomb, one of the defendants, and which deed was recorded; that said deed was without consideration, and was made at the request of Carpenter, “who desired that the record title of the property should not be in him, he at that time being largely indebted.” It is then alleged that the property was subsequently conveyed by Ella V. Lipscomb to James D. Mankin, but that said deed was without consideration. It is also alleged that, Mrs. Lane having died intestate, her heirs at law, on the 16th of November, 1891, by deed of that date, duty executed, acknowledged and recorded, conveyed the property to said George A. Lane, who, two days thereafter, conveyed the property to trustees, to secure the payment of two promissory notes of $1,000 each, payable six months after date, but which indebtedness, as it is alleged, was fictitious and void.
    It is further alleged that Carpenter, by reason of the facts set forth in the bill, and to which we have referred, had, at the time of his death, a beneficial and equitable interest in said property, which devolved upon his heirs at law; and that, as said Carpenter died without personal-estqte, such equitable interest in said real property is subject to the payment of his debts. But it is not alleged, nor in any way shown, when Carpenter became indebted to the appellants.
    The bill prays that a trustee may be appointed by the court, to have the deed made by Mrs. Rebecca M. Lane to Carpenter, dated the 15th of July, 1875, recorded; that the appellants be decreed to have an equitable lien upon the property described in said deed; and that trustees be appointed to make sale of such property for the satisfaction and discharge of the lien so declared.
    
      Mr. Franklin H. Mackey and Mr. Charles Cowles Tucker for the appellants.
    1. The appellants were not, as urged below by the appel-lees, required to reduce their debt to judgment before seeking to subject the real'estate of their deceased debtor to the payment of such debt. Offutt v. King, 1 MacA., 312.
    2. The defendant Lane is equitably estopped to assert title to property for which he has already once received full consideration, and which was conveyed by his direction and with his acquiescence and consent. “ Equitable estoppel by conduct, so far as it relates to the trial of title to land, is that doctrine by which a party is prevented from setting up his legal title because he has, by his acts, words or silence, led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.” Ter-rel v. Weymouth (Florida), 13 So. Rep., 429.
    The case at bar is analogous to that of one who has for a good consideration executed a deed of a piece of property to which he has no title, in which case any title to the property afterwards acquired by him will inure to the benefit of his grantee. Here Lane procured his wife to execute a deed of certain property to Carpenter in consideration of Carpenter releasing him from an indebtedness; by every principle of equity any subsequent title to the property acquired by Lane results to Carpenter. He cannot keep the money and the land also; the claim therefore that Lane may set up the title acquired by him from his children, the heirs at law of his wife, is utterly untenable.
    Even if the children were in the position of purchasers for value without notice, instead of mere volunteers (for the distinction between which, see Bigelow on Estoppel, p. 336), and their title were thus unquestionably flawless, the assertion by Lane of such a title gained from them, even if he had paid value for it, would be contrary to equitable principles.
    So, too, the principle that a grantee claiming under a purchaser without notice stands in the same position with his grantor, and is entitled to the same protection even when affected with notice at the time of the grant, ceases to be applicable where the property is reconveyed to the original grantor who sold in violation of rights, which he knew at the time of his sale, and whose conscience is still tainted with the original fraud. 2 Lead. Cases in Eq., 50.
    The following propositions, supported by the authorities cited, illustrate the effect of receiving the .purchase money of property:
    One who accepts a part of the purchase money arising out of a sheriff’s sale is estopped to deny the validity of the sale. Stoble v. Smith, 8 Watts (Pa.), 280.
    Though an assignment be in its nature calculated to delay creditors, and therefore avoidable, yet, if a creditor take a dividend under it, he cannot afterwards.question its validity. Adlum v. Yard, 1 Rawle, 162. See also Hamilton v. Hamilton, 4 Barr, 194. “ One cannot keep both the money and the land.” Leshey v. Gardner, 3 W. & S., 319; Meson v. Bigger, 7 id., ill; Moodey v. Vandyke, 4 Binney, 40; Ma-
      
      plev. Kussart, 3 P. F. Smith, 352; Smith v. Worden, 7 Harris, 430.
    Where a wife conveys her land and her husband receives the purchase money, the heirs of husband cannot dispute the validity of the deed. Walmsty v. Crook, 3 Neb., 344; Morris v. Stewart, 14 Ind., 334, and Herman on Estoppel, vol. 2, p. 1250.
    Where those who are entitled to avoid a sale, adopt and ratify it, by receiving the whole or any part of the purchase money, equity will preclude them from setting it aside subsequently, for reasons too plain for statement. 2 Smith’s Lead. Cas., 662. See an excellent note to Deford v. Mercer, 24 Iowa, 123. The principle is not confined to voidable sales; it extends to void sales as well. Deford v. Mercer, 24 Iowa, 118. For the doctrine that a wife’s deed without the' husband’s signature may have its limitations, Ins. Co. v. Bay, 4 N. Y., 11, and Reeves Dom. Rel., p. 114.
    
      Mr. A. S. Worthington for the appellees:
    1. The deed from Rebecca M. Lane, a married woman, to John R. P. Carpenter, attempting to convey land not her separate estate and which had been conveyed to her by her husband, was absolutely void, (1) because her husband did not unite in it, and (2) because there was no privy acknowledgment of the wife. This proposition appears to be conceded here as it was concedéd in the court below. 3 Wash, on Real Prop., p. 558, marg.; Laiirence v. Háster, 3 H. & J., 371; Maryland Act, 1715, Ch. 47, Sec. 11; R. S. D. C., Secs. 450, 451, 452.
    2. Mrs. Lane was not estopped by her attempted execution of the deed in question, or by the alleged release of her husband, with her knowledge, from his alleged indebtedness of five hundred and forty dollars to Carpenter, the grantee in the deed. Buchannon v. Hazard, 95 Pa. St., 241; Butler v. Buckingham, 5 Day (Conn.), 492; Watrous v. Chalker, 7 Conn., 227; Gibb v..Rose, 40 Md., 387; Merriam v. R. R. Co., 117 Mass., 241; Mason v. Mason, 140 Mass., 65; 
      Frarey v. Wheeler, 4 Ore., igo; 2 Herman on Estoppel, Sec. 1114 and cases cited ; 51 American Reports, 458, note. Indeed, a married woman cannot by any act or omission on her part be estopped so as to affect her real estate. Drury v. Foster, 2 Wall., 24; Bank v. Banks, 101 U. S., 240.
    3. The principle referred to in the brief for the. appellants that a purchaser with notice from a purchaser without notice is not protected when he is the person who is guilty of the original fraud — has no application whatever to this case. That principle applies where one who holds title to land subject to an equity created by himself, conveys it to a bona fide purchaser without notice. If in such a case the title comes back to the original grantor, he holds subject to the equity which he originated and cannot shield himself behind his grantor. But in this case the land in question did not become chargeable with any equity at all. Mrs. Lane could convey it to whom she pleased, and when it descended to her children they could do the same, and no grantee under her or them immediate or remote can be said to hold the land subject to an equity, because there never was any claim . against it that was valid' either in law or in equity.
    4. If Carpenter had survived, and had himself filed this bill, a demurrer thereto would have been sustained on account of his laches alone. Speidel v. Henrici, 120 U. S., 377; Bryan v. Kales, 134 U. S., 126. And certainly the complainants, as Carpenter’s creditors, at the most, are no better off in this respect than he would have been had he lived.
    5. The complainants, as creditors of Carpenter, have no right to file the bill, even if he could have filed it during his lifetime. The supposed right which Carpenter had to proceed against the defendant George H. Lane, growing out of the latter’s alleged estoppel in pais, is not such a right as he could have assigned to anybody else, because the law does not permit one who has a claim against another based upon an alleged estoppel — or upon a mere fraud pf any kind — to effectually assign that claim to anybody else. 2 Story’s Eq. Jur., Sec. 1040 h.; 3 Pomeroy’s Eq. Jur., Sec. 1276; Bailorv. Daly, 18 D. C., 179. Much less will such a transfer be made by mere operation of law.
   Mr. Chief Justice Alvey

delivered the opinion of the Court:

None of the deeds referred to in the bill were filed as exhibits therewith; and, of course, they do not constitute any part of the record before us on demurrer to the bill. Exhibits must be actually filed, as parts of the record, to be reached and brought under the consideration of the court, on demurrer to the bill or petition. A mere reference to records or to the registry of deeds, existing independently of the record of the particular cause, cannot be considered as bringing such records or deeds before the court, and making them parts of the bill. The record of each case must be complete of itself; and a mere reference to matters of record, whether under control of the court in other cases or proceedings, or to be found upon examination in some other office or place of depository, cannot be taken as a substitute for the actual filing and presentation of the matter referred to, and intended to be brought to the attention and consideration of the court. To enable the court to declare the construction, or to determine the question as to the due and legal execution of an instrument, the instrument itself, or copy thereof, should be presented to the court, as part of the record of the case. That was not done in this instance, and the defect in this particular was sufficient of itself to justify the court below in sustaining the demurrer to the bill.

But, waiving this defect in the presentation of the case, and taking the allegations of the bill as they stand, as to what the deeds were really intended to effectuate, the bill and amended bill wholly fail to present such a case as to justify the relief prayed for by the appellants.

1. The deed to Mrs. Lane, described in the bill, of the 21st of January, 1875, from Johnson was, in effect and contemplation of law, á conveyance of an estate from her husband, Johnson being the mere medium for the transfer of the title from the husband to the wife. The property, therefore, was not acquired in a manner or from a source to make it her separate and absolute property within the meaning or contemplation of Section 727 of the Revised Statutes of the United States relating to the District of Columbia. She acquired the property as at common law, and held it subject to her common law disabilities, and could only convey it by the joint deed of herself and husband, and upon separate examination and acknowledgment, as prescribed by the statute. R. S. D. C., Secs. 450, 451, 452; Kaiser v. Stickney, 131 U. S., CLXXXVII; Hitz v.Jenks, 123 U. S., 297. The deed to the wife from the husband, through Johnson, the intermediary, vested in the wife the legal estate in the property; and though the deed was without pecuniary consideration, as alleged, is quite immaterial, provided the conveyance was not made in prejudice of the rights of subsisting creditors of the husband. That it was in prejudice of any such rights is not made to appear, and there is no creditor of the husband of Mrs. Lane setting up such claim of right as against the estate conveyed by the deed. The estate having become vested in Mrs. Lane, the wife, she could only convey it in the manner and with the formalities prescribed by the statute, for the conveyance of real estate by femes covert.

The deed, therefore, of Mrs. Lane executed to Carpenter, without the joinder of her husband, was simply void, and without any effect whatever. It was not executed and acknowledged as the law required, R. S. D. C., Secs. 450, 451, and equity does not interpose to afford aid and support to an invalid deed of a feme covert, made in disregard of the requirements of the statute. The cases are full and conclusive upon the subject, showing that defectively executed deeds by femes covert are wholly void, and therefore not to be aided or given effect by a court of equity. 2 Kent Comm., 169; Watrous v. Chalker, 7 Conn., 224; Mariner v. Saunders, 5 Gilm., 125: Barrett v. Tewksbury, 9 Cal., 13; Gebb v. Rose, 40 Md., 387; Gardner v. Moore, 75 Ala., 394; same case, 51 Am. Rep., 454, and a full note to that case, where the authorities are collected. The same principle is fully sanctioned by the Supreme Court of the United States in the case of Drury v. Foster, 2 Wall., 24, 33.

2. Nor is there anything alleged that does or can operate as an estoppel upon George A. Lane, the grantee of the heirs at law of Rebecca M. Lane, nor upon his grantees, in favor of creditors of Carpenter. It is not alleged or pretended that George A. Lane was intended to be a party to the deed from his wife to Carpenter, and that his nonjoinder occurred by mistake or inadvertence; nor is it alleged or pretended that the appellants were creditors of Carpenter at'the time the property was attempted to be conveyed to Ella V. Lipscomb by Mrs. Lane, at the alleged instance of Carpenter. The property was never divested or transferred out of Mrs. Lane by any of the conveyances made, and the estate devolved upon her heirs; and Carpenter neither acquired legal nor equitable estate therein. If it be true, as alleged, that the consideration for the deed from Mrs. Lane to Carpenter was the release of a debt due Carpenter from the husband of Mrs. Lane, that attempted release simply failed of effect for want of consideration; the deed being void, furnished no consideration for the release of the debt.

3. But, apart from all grounds, and considerations in support of the demurrer to the bill, the defense relied on of laches and lapse of time, would seem to furnish a complete bar to the relief sought in this case. Mrs. Lane and Carpenter are both dead; the alleged attempted conveyance from Mrs. Lane to Carpenter occurred nearly seventeen years before the bill in this case was filed; and there is no allegation that Carpenter was ever let into the possession of the property; nor is it shown when the alleged debt due the appellants from Carpenter was contracted, or that it was in any manner contracted on the faith of any apparent ownership in Carpenter of the property in question. It is well settled that laches and undue lapse of time constitute a good defense in equity, and one that may be availed of by demurrer to the bill. Maxwell v. Kennedy, 8 How., 210; Bank v. Carpenter, 101 U. S., 567; Lansdale v. Smith, 106 U. S., 391; Speidel v. Henrici, 120 U. S., 377, 387.

It follows that the decree appealed from must be affirmed; and it is so ordered, with costs to the appellees.

Decree affirmed.  