
    J. C. Massey vs. Thomas Craine.
    IV lAre the defendant purchased a tract of land of the plaintiff, to whom the plaintiff gave a conveyance in the form prescribed by the act of 1795, (with a warranty against all lawfully claiming, Sec.) and after-wards, when he called upon the defendant for his note lor the purchase money', promised the defendant that his wife should renounce her dower, which was an objection made by the defendant to his giving his note, the Court Held, that this promise, made after the conveyance, was without consideration, and against the policy of the law.
    And in action upon such note, where a discount was set up, that the wife’s dower had not been released, the Court Held, that the defendant could be allowed nothing for the dower ; for as the husband is now living, it is only possible that the right of dower may accrue, and a possible injury is not a subject for damages.
    fai JL HIS was an action of assumpsit on a promissory noteá which had been given for a lot of land in the village of Lancaster.
    It appeared that subsequent to the execution of the deed, (which was i.n the form prescribed by the act of 1795, 3 Breo. 176. 2 Faust 5,) the plaintiff called for the note, which the defendant hesitated to give, saying that the dower had not been renounced. The plaintiff then promised that his wife should come from North-Carolina, (where she then was,) and renounce 'her dower. There was no evidence of her having done so; and the defendant contended that he was entitled to a discount to the value of her dower.
    The judge on the circuit charged the jury to find a verdict for the full amount of the note, which was done.
    A motion was now submitted for a new trial on the following grounds, viz:
    1st. That defendant was entitled to damages for the non performance of plaintiff’s promise.
    2nd. That the covenant in the deed was broken, as the wife had not renounced her dower : and for this, the ’defendant was entitled to damages.
    
      Williams, for the motion.
    Miller, contra.
   Mr. Justice linger

delivered the opinion of tlie court.

The promise made subsequent to the execution of the deed, was without consideration, as the note then given was the consideration of the deed. The promise was also against the policy of the law, which secures to the wife her dower, independant of the control of her- husband. Neither is a possible injury a subject for damages; and as the husband is now living, it is only possible that the right of dower may accrue. On the first ground, the motion must fail.

The deed contains the usual covenant, that plaintiff will for ever defend defendant, his heirs and assigns, against every person lawfully claiming or to claim the premises, &c. s

If this be regarded as a warranty of seizin, it has not been broken, for plaintiff was seized. If a warranty for quiet enjoyment, it is not broken, for defendant’s possession has never been disturbed. The plaintiff’s title in every respect was good, and no warranty with respect to title can have been broken. But it is contended that from the words of the covenant, an implied warranty arises, that the wife shall renounce her dower. Such a warrant}7 would be contrary to the policy of the law, and therefore cannot be implied by the law; but if it could, the injury would be only possible during the life of the husband, and therefore not a subject for damages.

The motion must fail.

Justices Johnson, Colcock, Nott and Gantt, concurred.  