CLARK, C. J., dissenting. This is a petition to rehear the above-entitled case, which was decided at February Term, 1902, and is reported in 130 N.C. 100. On 21 January, 1878, the plaintiff, being the owner of the land in controversy, which is situated in this State, joined with her husband in the execution of an unsealed paper-writing by which they professed to convey the said land for a consideration received by her to one Lindsay Hursey, who afterwards conveyed to the defendant A. Leach. The other defendants claim their shares in the land by mesne conveyances from Leach.
At the time of executing the paper-writing to Hursey the plaintiff and her husband were citizens of the State of South Carolina and were domiciled in that State, and Hursey was a citizen of this State and domiciled therein. The paper-writing was proved by witnesses, there being no acknowledgment of it or privy examination of the wife. There was a general covenant of warranty in the deed. By the Constitution and laws of South Carolina in force at the time the paper-writing was executed a married woman could purchase and convey real property as if she were unmarried, and her deed to the same could be proved by witnesses without privy examination, and *Page 676 when thus proved and registered was binding upon her. The plaintiff's husband died since this suit was brought.
It may be assumed that if the land had been situated in South Carolina the paper-writing executed by the plaintiff to Lindsay Hursey was valid and effectual for the purpose of passing the (961) land to the latter, and further, that the plaintiff, according to the laws of that State, would be bound by the covenant of warranty. But as the land is situated in this State, the transfer of it must be governed by our law. It seems to be conceded that the title to the land did not pass by the mere force and operation of the deed as a conveyance; but the defendants contend that the plaintiff is estopped by the deed, and especially by the covenant of warranty, to claim the land, as her covenant is valid and binding on her under the laws of South Carolina where she resided and had her domicile at the time she entered into it.
There is a marked difference between the validity of a covenant of warranty where the question is whether the covenantor is liable in damages for a breach of the covenant, treated as a mere personal contract, and its validity for the purpose of creating an estoppel against the covenantor to claim the land which he had sold and conveyed and the title to which he has warranted. In the one case the remedy is by an action on the covenant which sounds only in damages, and in the other the covenant is considered, not as passing the estate, if we speak with technical accuracy, but as concluding the party, who has affirmed that he had the title at the time of the conveyance and has agreed to warrant and defend it, from afterwards disputing that fact, or from asserting a title in opposition to the one he professed to convey; but while the estoppel may not have the legal effect of transferring the title to the covenantor, it indirectly accomplishes that result. Whatever may be the rule with reference to the law governing the validity of a covenant, considered as a personal contract, for the breach of which damages may be recovered, whether it is the law of the place where the property with reference to which the covenant is made is situated, or the law of the place of the contract, we need not decide in this case, for it is sufficient for (962) the purpose of this appeal to hold, as we must, that if the covenant is to be regarded as an estoppel affecting the title, it must be governed by the law of the State where the property is situated, and in this case by the law of this State. Minor's Conflict of Laws, sec. 185; Riley v. Burroughs, 41 Neb. 296; Hill v. Shannon,68 Ind. 470; Tillotson v. Pritchard (Vt.), 6 Am. St., 95. Referring to this very question of the effect of a covenant of warranty, the Court inSuccession of Larendon, 39 La. Ann., 952, says: "The rights and *Page 677 obligations arising under acts passed in one State to be executed in another, respecting the transfer of real estate in the latter, are regulated in point of form, substance, and validity, by the laws of the State in which such acts are to have effect. The rule is said by the Court to apply also to the determination of liability upon the covenant for damages.
If the question of estoppel is to be decided by the law of this State, as we hold it must necessarily be, it follows that it cannot have the effect, either directly by passing the estate or indirectly by concluding the plaintiff, of preventing her recovery in this case. A ruling which would give to the covenant the force and effect the defendants contend it should have, would be in flagrant violation of the spirit and letter of our law in regard to the transfer of real property by married women. We will always in comity enforce the laws of another State, when the rights of the parties should be determined according to the place where the contract was made, or where the transactions out of which those rights arose took place; but we cannot enforce the laws of a foreign jurisdiction when they conflict with our own laws in a matter concerning property situated in this State. If we should say that the covenant works an estoppel which concludes the plaintiff and thereby divests her of the title to the property, we would decide in effect that she had done indirectly what she could not do directly. "The wife cannot subject her (963) separate real estate or any interest therein to any lien except by deed in which the husband joins, with privy examination as prescribed by law; and she will not be allowed to do indirectly what the law prohibits her doing directly." Thurber v. LaRoque, 105 N.C. 301. In Drewry v. Foster, 2 Wallace, 34, the Court says: "To permit an estoppel to operate against her (a married woman) would be a virtual repeal of the statute which extends to her this protection, and also a denial of the disability of the common law that forbids the conveyance of her real estate by procuration. It would introduce into the law an entirely new system of conveyance of the real property of femes covert."
The defendants cannot avail themselves of the covenant, because it was not made directly with them, but with Hursey, and there has been no assignment of the covenant by him to them. It is true that a covenant of warranty is in the nature of a real covenant and runs with the land, even though the word "assigns" is not mentioned therein. Wiggins v. Pender,ante, 628. But the defendants can take nothing by this principle, as the deed of the plaintiff was absolutely void and the land, or, more properly speaking, the title or estate, did not pass, and, of course, the covenant cannot be said to have *Page 678 passed to the defendant with the land. The covenant of warranty is incident to the estate, and as the defendants acquired no estate, it follows that they derived no advantage in any way from the covenant.Kercheval v. Triplett, 1 March (Ky.), 493. If it is a binding covenant at all, it is nothing more than a covenant in gross or one detached from the land, and could not have passed to the defendants except by an assignment. When the deed of a married woman fails as a conveyance because of the nonjoinder of her husband or for any other reason, it is ineffectual for all purposes and cannot be relied upon as an estoppel or ground for recovery in any subsequent (964) controversy. Herman on Estoppel, sec. 581. In Lowell v. Daniels, 68 Mass. 168, 61 Am. Dec., 448, the Court, discussing this question, says: "She can make no valid contract in relation to her estate. Her separate deed of it is absolutely void. Any covenants in such separate deed would be likewise void. If she were to covenant that she was sole, was seized in her own right and had full power to convey, such covenant would avail the grantee nothing. She could neither be sued upon them nor estopped by them. The law has rendered her incapable of such contract, and she finds in her incapacity her protection; her safety in her weakness. Her most solemn acts, done in good faith and for full consideration, cannot affect her interest in the estate or that of the husband and children." See, also,Pierce v. Chase, 108 Mass. 254. In Harden v. Darwin, 77 Ala. 481, it is said by the Court: "It has been uniformly held that a married woman is not estopped from asserting the invalidity of a conveyance of her property not executed in the mode required by the statute, though she has received a valuable consideration and her vendee has been let into possession; and that a court of equity will not enforce it against her, as an agreement to convey." R. R. v. Stephens, 96 Ky. 401; 49 Am. St., 303. The covenant binds the covenantor to warrant and defend the title which passes by the deed, and to answer in damages if the title fail or proves defective. It relates to the title or estate of the covenantor, which he undertakes to convey, and not to the validity of the deed by which it is transferred. The purchaser is presumed to know that a married woman is not bound by a deed without her privy examination, and if he takes a conveyance imperfectly executed or acknowledged by her, it is his own misfortune, if not his fault. Towles v. Fisher, 77 N.C. 437. We think the principles laid down in this Court in Williams v. Walker, 111 N.C. 604, are conclusive against the defendants in this case. While (965) the precise question we are discussing was not involved in that case, it affords a perfect analogy for our guidance and is sufficient in all respects to sustain our decision on this rehearing. *Page 679 In Collins v. Benbury, 25 N.C. 285, 38 Am. Dec., 722, it was held by this Court that a conveyance which failed to pass the land and was merely void could not operate as an estoppel, and this must needs be so.
The defendants further contend that plaintiff is estopped by her act in permitting Hursey and the defendant to take possession of the land and make valuable improvements thereon. We have not been able to find anything in the record upon which they can base this contention; but if there were facts sufficient for that purpose we would be unable to agree with the defendant. A married woman is no more estopped by her acts in pais than by her covenant of warranty. This Court has said that no one can reasonably rely upon the acts and representations of a married woman, at least those which are contractual in their nature, as he must know that she is not bound thereby, and "it is only in the case of a pure tort, altogether disconnected with the contract, that an estoppel against her can operate."Towles v. Fisher, 77 N.C. 438; Scott v. Battle, 85 N.C. 184, 39 Am.Rep., 694; Williams v. Walker, 111 N.C. 604; R. R. v. McCaskill,94 N.C. 746.
We have examined with care the authorities to which our attention has been called, and do not think that they support the contention of the petitioner as to the estoppel arising from the covenant of warranty. We make special reference to two of them. In R. R. v.Conklin, 29 N.Y. 587, the question as to the valid execution of the deed was not raised, but the point was whether the words of the deed were sufficient to operate as a conveyance of the property, and the Court held that if they were not, resort could be had to the covenant of warranty as containing sufficient words for that purpose. The grantor was sui juris. In Basford v. Pearson, 89 (966) Mass., 504, there was no reference to an estoppel, as the action was brought to recover damages for a breach of the covenant. The question in our case is not whether Mrs. Smith is liable for damages upon the covenant, but whether she is estopped from claiming the land.
We have given this case most anxious thought and consideration, not only because of the interesting and important questions involved, but because of the great hardship and apparent injustice the defendants may suffer as the result of our decision based upon the application of fixed legal principles to their case.
Whether the defendants can have equitable relief is a question not now before us for adjudication. Such relief has been granted in a case closely resembling this in its facts and circumstances. In that case the Court fully recognized the invalidity of a deed executed by a *Page 680 married woman, and based its decision upon the ground that the right to equitable relief or to compensation for improvements to the extent that they had enhanced the value of the land did not involve the enforcement of a contract either directly or indirectly, but simply denied to her the use and enjoyment of property for which she had paid nothing and which she acquired by the repudiation of her deed. Preston v. Brown, 35 Ohio, 18. Whether this is a correct principle, and the case just cited and others of a like tenor are in accord with our decisions and should be followed by us, is a question which, if it should ever arise, we will leave open for future consideration and entirely free from any expression or even intimation of opinion by us.
However much we may regret the unfortunate situation of the defendants, we cannot grant them any relief, as the matter is now presented, without abrogating well-settled principles and violating the plain provisions of our statute, the enforcement of which is obligatory upon us. After careful examination of the case, we (967) can find no error in the former decision of this Court.
Petition dismissed.