
    Moore et al. v. Tyler et al.
    A testator conveyed land, by deed, to bis son, “ to bis use, benefit and beboof, during bis natural life, and, at his decease, the said land, with the appurtenances, to descend to, and the title thereof to vest in, the children of the said party of the second part, by him lawfully begotten. And if any of the children of the said second party shall then have deceased, leaving lawful issue, such issue to take the share of the parent so deceased, the heirs and assigns of such children and issue forever,” with a power of appointment of the interest which the children and their heirs should take. The son died, after having first conveyed to a stranger, leaving a will wherein he divided the land unequally between his children. Held, that the son took a life estate, with remainder in fee to his children. And the children are entitled to judgment in ejectment, against the son’s vendee in possession.
    Where a married woman joins with her husband in a deed, not for her separate estate, but to convey lands whose title was claimed by the husband, such conveyance will not operate as an estoppel, so that she cannot assert a subsequently acquired interest in the same land.
    March 21, 1889.
    Error, No. 106, Jan. T. 1889, to C. P. Bradford Co., to review a judgment on a verdict for the plaintiffs in an action of ejectment by Charles C. Tyler, Caroline T. Nash, and Anna T. Noble et al., against W. E. Moore and S. IC. Harris, at Sept. T. 1887, No. 330. McCollum and Mitchell, JJ., absent.
    The case was tried, without a jury, under the Act of April 22, 1874. The opinion of the court was as follows, by Seely, P. J.:
    “ This case having, by agreement of the parties, been tried before the court, without a jury, the facts are found to be as follows :
    “ 1. The contention is for the title and right of possession of 150 acres of land — the eastern portion of a 300-acre lot, of which Erancis Tyler was the owner in August, 1849.
    “ 2. The plaintiffs and defendants all claim title and right of possession under the said Erancis Tyler.
    “ 3. August 22, 1849, Erancis Tyler and wife, parties of the first part, executed and delivered a deed to Erancis A. Tyler, party of the second part, for the consideration of ‘ love and natural affection, and the sum of $1,500,’ for the 300 acres of land above mentioned ‘to have and to hold 150 acres of the east end by a line parallel with the west line of said tract, with the appurtenances, to the said party of the second part, to his own use, benefit and behoof, during his natural life, and, at his decease, the said 150 acres, with the appurtenances, to descend to, and the title thereof vested in, the children of the said party of the second part, by him lawfully begotten, and if any of the children of the said party of the second part shall then have deceased, leaving lawful issue, such issue to take the share of the parent so deceased, the heirs and assigns of such children and issue forever. Provided, however, that the said party of the second part, may, by will or other writing, appoint and direct in what manner the said premises shall be divided among his said children and their heirs, and what amount of interest each shall have in the same. But, in default of his making such appointment, the same shall be held by his said children and the lawful issue of such child or children as may have deceased, as tenants in common, their heirs and assigns forever, such issue to take the share that would have belonged to the parent. And as to the remainder of the said piece, parcel or farm of land, to have and to hold the same to the said party of the second part, his heirs and assigns, to his and their use, benefit and behoof forever.’
    “ 4. May 13, 1856, Francis A. Tyler and Cynthia, his wife, ‘parties of the first part,’ for a consideration named of $7,500, executed and delivered a deed to James H. Webb, in fee-simple, for the said 150 acres — -the east end of the said 300-acre lot, ‘ with all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, in law or equity, of, in, to, and out of the same.’ With covenant of general warranty by ‘the said parties of the first part.’ This deed recited upon its face that it was ‘ for the purpose of barring the estate tail of which the said Francis is seized in the lands mentioned,’ and was presented in the court of common pleas of Bradford county, on May 16, 1856, and by the court ‘ duly ordered to be entered on the records thereof in the manner commonly used with respect to sheriff deeds, in pursuance of the Act of Assembly relating thereto, entitled ‘An Act to facilitate the barring of entails,’ and, in pursuance of said order, was so entered.’
    “5. May 23, 1856, James H. Webb and wife, of the first part, for a consideration named of $7,500, executed and delivered a deed to Francis A. Tyler for the same 150 acres, in fee-simple, with covenant of special warranty ‘ against all or any person or persons claiming or to claim the same, under or by virtue of any conveyances from the said party of the second part.’
    “ 6. April 22,1857, Francis A. Tyler and Cynthia L., his wife, for the consideration as named in the deed of $10,000, executed and delivered a deed to William É. Moore, one of the defendants, for the entire 300 acres above mentioned, in fee simple, reciting ‘ being the same tract of land conveyed by Francis Tyler, father of said Francis A., to said Francis A. Tyler by deed bearing date August 22,1849, etc.’ This deed contains a covenant of general warranty by ‘ the said Francis A., his heirs, executors and administrators.’
    “ 7. April, 1883, Charles C. Tyler, son of Francis A. Tyler, being of full age, executed and delivered a deed to Cynthia L. Tyler, his mother, for the 300 acres above mentioned, in fee-simple, •the consideration named in the deed being ‘ fifty dollars and other good and sufficient consideration ’ and particularly setting forth that the deed was intended to convey all and any interest which the .grantor then had or might acquire in the lands described or any y>art thereof, and also all the right, title and interest therein, that he may hereafter have or acquire under and by virtue of the deed from Francis Tyler to Francis A. Tyler, of August 22,1849, or any will or other writing that Francis A. Tyler may make by virtue of said deed. Also any interest that he may have, acquire or become entitled to therein in any manner whatsoever, with covenant of general warranty. This deed was recorded March 11, 1886.
    
      
      “ 8. Francis A. Tyler died about tbe middle of March, 1886, leaving a will, dated Nov. 10,1860, which was admitted to probate Feb. 11,1888, by which he devised, to his daughter, Anna, one quarter of an acre of land (describing it) out of the 150 acres — eastern portion of the 300 acres above mentioned; to his daughter, Caroline, one quarter of an acre (describing it) out of the same 150 acres, and to his son, Charles C. Tyler, ‘ all the rest, residue and remainder of my estate hereinafter mentioned, to-wit,’ describing the 150 acres of the eastern end of the said 300-acre lot, and particularly distinguishing it as £ the same tract or parcel of land reserved by Francis Tyler for the benefit of Francis A. Tyler’s lawful children, in deed of Francis Tyler to Francis A. Tyler, made and executed Aug. 22, 1849,’ to have and to hold the premises above described to the said Charles C. Tyler, upon his becoming twenty-one years of age, and not until then, to have possession of said described piece of property, or the rents or profits accruing from the same, in any manner or wise.’
    " 9. May 9, 1887, Cynthia L. Tyler executed and delivered a deed to her three children, Charles C. Tyler, Caroline T. Cash and Anna T. Noble, the plaintiffs in this action, for the said 150 acres of land — the eastern portion of said 300 acres in fee simple.
    “ 10. Charles C. Tyler, Caroline T. Cash and Anna T. Noble, were the only children of Francis A. Tyler, living at the time of his decease, and he left no grandchildren — children of any deceased child.
    “11. The defendants are in possession of the said 150 acres, the lands in controversy.
    “ From these facts, we reach the following legal conclusions:
    [“ 1. The deed from Francis Tyler and wife to Francis A. Tyler, of Aug. 22, 1849, did not create an estate tail in Francis A. Tyler, in the 150 acres of land, subject of this contention, but granted to him a life estate, with remainder in fee to his children, conferring upon him a power of appointment as in said deed mentioned.]
    [“2. The deed from Francis A. Tyler and wife to James H. Webb, May 13, 1856, with the deed from said James H. Webb, back to said Francis A. Tyler, May 23, 1856, neither divested the children of Francis A. Tyler of their estate in remainder of said lands, nor did they vest in said Francis A. Tyler any greater estate than he before possessed.]
    “ These deeds have been fully considered and construed by the supreme court in Tyler v. Moore, 42 Pa. 374.
    [“ 3. In so far as the title of the plaintiff is acquired through their mother, Cynthia L. Tyler, by the deeds of Charles C. Tyler, April 18, 1883, and Cynthia L. Tyler, May 9, 1887, they are not estopped from asserting it by reason of their mother having joined her husband in executing the deed to William E. Moore for the same lands in April, 1857.]
    “ Just here is the principal contention in the case. It is well that the facts should be carefully noted. The wife joins with her husband in a deed, not for her separate estate, but to convey lands, whose title was claimed by the husband, the title being so recited in the deed. The deed purports to contain ho warranty on her part, the warranty being expressly by the husband. Is she so concluded that she cannot assert, against such grantor, a title subsequently acquired by her ?
    “ ‘ It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration, when he has less than a fee-simple, but afterward acquires the fee, holds it in trust for his vendee.’ Clark v. Martin, 49 Pa. 303; McWilliams v. Nisly, 2 S. & R. 507; Chew v. Barnet, 11 S. & R. 391; Brown v. McCormick, 6 Watts, 60; Collins’s Ap., 107 Pa. 603.
    “ Nor need we question the correctness of the ruling in Bailey v. Allegheny National Bank, 104 Pa. 425, that where a married woman executes a mortgage upon property as land, which, at the time, was technically personalty but which, by her election with others, might become, and in fact did become, land, the mortgage may be held good.
    “ It was said in Davison’s Ap., 95 Pa. 39V, that the interest of a married woman in real estate cannot be divested, except in the mode pointed out by our statute, and that she cannot be estopped by acts or declarations which, in case of a feme sole, would operate as an estoppel. •
    “Becker v. Werner, 98 Pa. 555, referred to by counsel for both plaintiff and defendant, was decided upon the ground that the wife’s joinder in the mortgage was merely the.result of ignorance or carelessness of the scrivener, and the case sheds but little light upon the present inquiry. The question has never arisen in Pennsylvania, so far as we have been able to discover. That the wife is not estopped by her husband’s covenant would not be questioned. Williams v. Baker, 71 Pa. 476.
    “ In Ohio it was ruled that covenants of warranty of a feme covert in her deed of real estate will operate as, an estoppel to her asserting any subsequently acquired title to the land. Hill v. West, 8 Ohio, 222; s. c. 31 Am. Dec. 442. The covenants in this case were contained in the conveyance or mortgage of the wife’s lands, and Colcord v. Swan, 7 Mass. 291, and Fowler v. Shearer, 7 Mass. 21, were referred to as precedents for the ruling. But a careful examination of these cases will show that the precise point was not raised in them, and, in a later case in Massachusetts, the remarks found in' them upon the subject are spoken of as mere dicta, and doubt is expressed whether they would be followed if the actual question should arise. Wight v. Shaw, 5 Cush. 66. In a still later case in Massachusetts, it was said that, by the common law of Massachusetts, the warranty deed of a married woman, though executed in such form as to convey her title, did not operate against her by way of covenant or estoppel. But the general statutes having made every married woman capable of bargaining, selling and conveying her separate real and personal property, entering into any contracts in reference to the same, and suing and being sued in all matters relating thereto, in the same manner as if. she were sole, it was ruled that she was concluded by her own personal covenant.
    “ In New York, it was ruled that a feme covert, having joined with her husband in a deed of land, with covenant of warranty, is not thereby estopped from setting up a subsequently acquired title. Jackson v. Vanderheyden, 17 Johns. 167; s. c. 8 Am. Dec. 378; Martin v. Dwelly, 6 Wend. 9; s. c. 21 Am. Dec. 245; Teal v. Woodworth, 3 Paige Ch. 470.
    “ In Alabama, the same ruling was made in Gonzales v. Hukil, 49 Ala. 260; s. c. 20 Am. R. 282.
    “ In New Jersey, in Hopper v. Demarest, 1 Zab. 541, speaking of the deed of a married woman, the court said : £ She is bound by no covenant in the deed; she is not estopped by an express warranty; as to her, it is void. She is estopped by no averment or recital in the deed.’ See, also, Wilson v. King, 8 C. E. Green, 155.
    
      “ The reason for holding this doctrine of estoppel against the grantor and in favor of the grantee is variously stated, but, however stated, its foundation is in the fact that the assertion of a subsequently acquired title by the grantor would be a violation of good faith and of some covenant, agreement or undertaking, expressly or impliedly entered into between him and his grantee.
    " But what is the undertaking or covenant of a married woman which is implied from her joinder with her husband in the conveyance of his lands ? The primary purpose is to extinguish her right of dower, but she does not assert the existence of such a right. By such joinder, she would undoubtedly convey any other right, title or interest which she might, at the time, possess in the lands, but she asserts by it the possession of no such interest.
    
      “ Giving to her act the full effect of a quit claim deed, what more can be asserted for it % Upon what possible theory shall she be considered as having asserted, represented or covenanted with the grantee, by implication, that she possesses, and, by her deed, transfers to him, any estate in the lands ? On the very face of the deed, the title is recited as being in the husband and not in her. We are unable to discover any sufficient ground for holding that she may not subsequently acquire, and legally maintain and transmit, a title to the lands described in such a deed, as against the grantee.
    “4. It is not urged that, by reason of the conveyance from Charles C. Tyler to his mother, the estate thereby conveyed may be presumed to have been paid for by and vested in her husband, Francis A. Tyler, and therefore enured to the benefit of the defendants as holding under his deed and warranty title. Such a position might present a complication of questions arising out of the uncertainty of the interest of Charles C. Tyler, at the time of his conveyance to his mother, the fact that such interest must remain indefinite until the father’s death, and the inquiry whether the father could then acquire the interest of one of his children and exercise his power of appointment so as to take for himself almost the entire 150 acres of land.
    “ But it seems clear that the money consideration in the deed from Charles C. Tyler to his mother is so insignificant, in comparison with the interest which is conveyed, that we should treat the consideration merely as nominal, and the conveyance as intended as a gift by the son to his mother, or else as designed simply to further some family arrangement, so v.esting no title in the father.
    
      “ 5. Whether, by virtue of the conveyance from Charles C. Tyler to his mother and from her to the plaintiffs, together with the will of Francis A. Tyler, as executing the power of appointment conferred upon him by the deed from Francis Tyler, or whether such execution of the power of appointment be a nullity, the plaintiffs are tenants in common in fee-simple in the lands in controversy, and are entitled to the possession thereof.
    “ 6. Judgment is awarded in favor of the plaintiffs and against the defendants for the land described in the precipe and writ in this case.” •
    S. K. Harris was a tenant in possession under Moore.
    
      The assignments of error specified, 1-3, the portions of the opinion within brackets, quoting them.
    
      H. F. Maynard, with him E. Overton and J. F. Sanderson, for plaintiffs in error.
    While this court held, in Tyler v. Moore, 42 Pa. 374, that F. A. Tyler took but a life estate, yet, under later decisions, we think the reverse of this doctrine should prevail. In connection with the vesting of the title, the testator says, the title is to “ descend to, etc.” The word “ descend ” has a fixed and legal meaning, and means that the remaindermen take by descent, and not by purchase. Haldeman v. Haldeman, 40 Pa. 29; Yarnall’s Ap., 70 Pa. 335, 342.
    It is admitted that, in attempting to convey her own title, a married woman will be estopped, although she subsequently acquire an independent and better title. The reason of this is, she is in privity with the title she attempts to convey. Now we think that, under this rule, when a married woman joins with her husband in conveying a title derived from A., she cannot subsequently acquire title from A., and recover the same land upon the same title first conveyed by her to her grantee. How can it successfully be claimed that Mrs. Tyler was not a party or privy to this title ? The title of Charles in his mother comes from Francis Tyler. All parties and privies in titles are estopped by such conveyance. If so, this judgment must be reversed. 2 Smith’s Lead. Cases, 830, 8th ed.
    All the cases cited by the court below are cases where the wife has acquired an independent title, other than the one which she attempted to convey.
    A married woman may be bound by her covenants in respect to the same land and the same title. Dean v. Shelly, 57 Pa. 426; Chambers v. Spicer, 41 Pa. 404; Clark v. Martin, 49 Pa. 299.
    
      Among the authorities of other states in which it is held that a married woman is estopped by her deed, we find: 35 Ohio, 119; 8 Ohio, 222; 56 Ala. 471; 53 Ala. 499; 56 Ind. 1-19; 7 Mass. 14-19.
    
      D'A. Overton, with him B. M. Peck, for defendants in error.
    —At common law, femes covert have no capacity to make contracts. Their contracts are nullities, and, in this respect, equity follows the law. Glidden v. Strupler, 52 Pa. 400; Leiper’s Ap., 108 Pa. 377.
    It follows, therefore, that a covenant of warranty by husband and wife must be regarded as the covenant of the husband alone, and is a nullity as regards the wife. Chambers v. Spencer, 5 Watts, 406; Dean v. Shelly, 57 Pa. 426.
    If it be said, in Pennsylvania, grantors are estopped from claiming title even when the conveyance contains no covenant of warranty, we answer if she is not bound by any express covenant, a fortiori, she would not be by any implied one. To work an estoppel by deed, parties must be sui juris, competent to make it effectual as a contract. Bank of America v. Banks, 101 U. S. 240. Even positive acts of encouragement which might operate to estop one sui juris will not affect one under legal disability; and a wife can do, or forbear to do, no act to affect her property unless settled to her separate use. Keen v. Coleman, 39 Pa. 299; Klein v. Caldwell, 91 Pa. 140.
    Nor can one sui juris be estopped by matter in pais, if both parties had equal means of knowing the truth. The element of fraud is essential to such an estoppel, and, in the case at bar, the title was as well known to Moore as to Francis A. Tyler and Cynthia, his wife, the record of the deed being notice to all the world. Hill v. Epley, 31 Pa. 331; Sinclair v. Jackson, 8 Cowen, 586.
    “ By the statutes of many of the states, at the present time, the wife may convey her lands without the consent of her husband; but, whether with or without her husband joining with her, in no instance can her deed operate as an estoppel to her subsequently acquired interest in the same land, nor will she be bound by her covenant of warranty.” Tyler on Coverture and Infancy, p. 318. To the same effect is Jackson v. Vanderheyder, 17 Johns. 167; Martin v. Dwelly, 6 Wend. 12; Teal v. Woodworth, 3 Paige Ch. 470; Carpenter v. Schermerhorn, 2 Barb. Ch. 314.
    March 25, 1889.
   Per Curiam,

This judgment is affirmed upon the opinion of the learned Judge of the court below.  