delivered the opinion of this court.
The bill in this case was filed by Morgan Harris and his wife Etheldra, (formerly Chapman,) to enjoin an ejectme suit brought by the appellant, for a tract of land called “Morris' Landingand to obtain a conveyance of the legal title to the same, by a decree for the specific performance of an agreement between the appellant and Samuel Chapman the ancestor of the appellee, in relation to the sale of said land; which agreement it is alleged was in parol, and part performed and executed between the said parties, in the lifetime of Samuel Chapman.
The complainants, Morgan Harris and Etheldra his wife, claimed in right of said Etheldra, as one of the heirs at law of said Samuel Chapman, in virtue of a deed of partition between them, and the other heir at law, John G. Chapman, whereby the land in question was allotted to, and vested in her exclusively. The agreement sought to be enforced was as before said by parol, and the bill charges, that it was partly performed by the payment of the purchase money agreed on, and by the delivery of the premises by Morris to Chapman in his lifetime, and in pursuance of the agreement.
Morgan Harris died since the filing of the bill.
The answer denies the existence of any such agreement as is charged in the bill; but sets up another and a totally different agreement, with regard to a parcel of land called “Smith-field.” That Samuel Chapman always admitted “Morris' Landing,” to be the appellant’s property, and had rented the same for several years before his death from the appellant; and that there was no part performance of any agreement between them concerning Morris' Landing. And he relies upon the statute of frauds.
The deed of partition is to the purport following: After reciting that the parties hold as tenants in common in equal shares, the lands of which they are seized in fee as heirs at law of Samuel Chapman, and that they have agreed to divide and hold their respective shares in severalty, it is thereupon cove, nanted, granted and agreed by and between them, that each *26shall hold, possess and enjoy in severalty the respective portion allotted by the said partition; and which each of them by the said deed of partition doth grant, release and confirm to the other; with the mutual covenant and grant; that each party shall forever peaceably, quietly have, hold, occupy, &c., free and discharged from all title, interest, claim and demand of the others, their heirs and assigns, &c.
The deed is executed and acknowledged by Etheldra the \yife of Morgan Harris in due form, by privy acknowledgment under the act of 1766.
To establish the facts that Sam.uel Chapman was a partner in the acquisition of Morris' Landing, that Morris agreed to sell out his interest to Chapman, and that in part performance of the agreement he was put in possession of the land, the appellee relies upon the evidence of John G. Chapman and Mrs. Elizabeth Chapman, the first the son, and the last the widow of Samuel Chapman.
To the competency of these parties as witnesses the appellant excepts, insisting that if Mrs. Harris is evicted from her moiety by one claiming a better title, she has her remedy over against John G. Chapman, or against the moiety assigned to him; and as to Mrs. Chapman the widow, that she hath a direct interest in establishing the title of her husband, by reason of the dower resulting to her from the seisin, if established.
In this state co-heirs are assimilated to co-parceners constituting together one heir. 5 Gill, 132. And at common law as between them, every partition has annexed to it the warranty implied, that if by defect of title in the ancestor, either loses any part or share of the allotment bjr eviction, it is treated as if no partition had been made between them. The party evicted, may enter upon the others and defeat the partition, as for condition broken, or may vouch them to warranty, and obtain recompense for the part so lost.
Upon this theory it is assumed, that supposing the appellant to succeed in his ejectment suit, Mrs. Harris could treat the partition as a nullity, and require it to be reformed, or proceed in chancery against the proposed witness her co-heir, to recover the moiety of her loss in value.
*27Can such right of re-entry exist here? All covenants that arise from implication of law, are necessarily controlled or annulled by other express covenants between the parties. The generality of the implied covenants, is by mutual consent thus restrained and qualified. 4 Coke, 80, Noke’s case. And this in subsequent authorities is recognized as the settled and established rule of law. Deering vs. Farrington, 1 Mod., 113. 4 Bingh., 678. 4 Kent, 469.
The parties to a partition as parceners may therefore regulate among themselves the extent and limit of their future liability, by the introduction of express covenants to that intent; and will be considered as holding their separate shares independent of any implied warranties, or other conditions than what they have themselves chosen to express. And where the party covenants for quiet, enjoyment and possession against himself and those claiming under him, he excludes the idea of a covenant against all the world. It is obvious that neither party could recover on this covenant for an eviction by a stranger. And it seems to be conceded in the argument, that if the right of re-entry for the breach of a condition implied, could in any case be allowed in this country, yet Mrs. Harris, if she had been sole at the time of the partition, would have been barred by her covenant.
But it is insisted, that as she was covert at the time, her covenant is not binding. As to the obligation of these express covenants upon a married woman, the authorities are not altogether without, conflict. It is a well settled principle that the wife is incompetent to bind herself by a contract.
But it has never been doubted that she may convey her interest in lands; and if so, she must be presumed to have tiie power to do so effectually. Provision to this intent is fully made by the statutes of our Stale, under which the wife is presumed to act as feme sole, because by the privy examination, she is free of the influence and control of the husband. And although under coverture at. the time, she may by any legal form of conveyance, executed under such privy examination part with all her interest, in the lands, and such conveyance *28operates as an estoppel against her as effectual as if she were sui juris. By joining with the husband in the execution of the deed, in the language of the act of 1766, ch. 14, the wife “is barred and foreclosed forever.” She is precluded from claiming against the deed, or setting up any title against the grantee.
The true and the only question in this case, is upon the effect of the deed of Mrs. Harris; and under the act of Assembly she has parted with all her right to the land held by her brother under that deed. That act, upon the privy acknowledgment and execution of the conveyance, confers upon her the power to do so. By whatever mode of conveyance, or in whatever form the wife parts with her property, under and in compliance with the statute, when executed, she is then by her own voluntary act precluded from afterwards disavowing it, and is bound by the conditions and terms of her own deed.
What must otherwise be the result of every such voluntary partition between parceners? It is not pretended that Chapman in case of eviction from his moiety, could recover damages from Mrs. Harris on her covenant. She has simply covenanted against her own acts; and that covenant operates by way of estoppel, to debar her from asserting a right in derogation of her grant. In the case of Nicholson’s lessee vs. Hemsley, 3 H. & McH., 409, relied on by the counsel for the appellant, it is admitted that a feme covert by deed and privy examination, may effectually convey her estate in lands, and by words of grant and covenant debar herself of all interest therein. All that was there claimed, was that the wife could not covenant so as to make herself liable in damages. And if in this case the appellee is in no form liable to General Chapman, more particularly not under the restricted covenants between them, upon what just principle can he be bound to her? Her only forum would be a court of chancery, where equality is equity, and where her claim against him, under a covenant, not mutual or reciprocal would be rejected. For if as feme covert she could claim to be bound by no such* covenant, can she, at the same time, claim to bind him?
*29As regards the incapacity of Mrs. Chapman, the mother, there is still less force in the objection that proposes to disqualify her as a witness. She is no party to the partition, and parceners only can vouch each other. Her portion was voluntarily assigned to her, and in view of the partition which the co-heirs afterwards made between themselves. Dower may be assigned by parol. The assignment here was made, as the testimony discloses, by the mother’s first taking by consent of the parties, what she thought a proper equivalent, and the remainder was then valued and divided. While she thus claims protection for her dower, she is bound to give protection to none. If her testimony should establish the seizin of her husband in Morris'1 Landing, she can assert no claim to dower in it, under the consent and arrangement between her and the heirs of her husband. The partition shows that the dower accepted by her, had reference to this land as part of the estate of her husband, in the division of which her right of dower was definitively acted on. And if any attempt could now be made to disavow it, would it for a moment obtain the sanction of a court of equity, where alone the claim could be entertained?
The competency of these witnesses thus established, we proceed to a brief comment upon their testimony. The ability and ingenuity of counsel in the attempt to reject it, indicates, at least, its important bearing on the case; and we concur with the chancellor, that by it the case of the complainant is sustained. John G. Chapman heard, both from his father and the appellant, that this vacancy of Morris’’ Landing, was first brought to their notice by the elder Chapman, and that it was agreed between Morris and Samuel Chapman, that it should be taken up on joint account. It is true, the patent was issued in the name of Morris; but that fact is satisfactorily explained as part of the agreement. The vacancy adjoined the lands owned by one of the Jenifer family, and Morris “alleging that Jenifer had once interfered with him in relation to some land or some other transaction,” sought the consent of Chapman to take it up in his own name, which was agreed to. Chapman was to have half the land, and with that understand*30ing and agreement, it was taken up. The caution money is proved to have been paid by Chapman, and the receipt of the treasurer is produced and proved to shew its applicability; being for $77.27, received from S. Chapman, “for caution and improvements on William Morris’ certificate, called Morris’ Landing, for fifty-four and a half acres,” and there is evidence to show, that this money was paid by Chapman on account of their agreement to take up this vacancy, and hold the land for joint account of both.
It was thus held until 1821, the legal title being in Morris, when as the evidence shows, a further agreement was made between them, to sell to Chapman the other half; and if he succeeded in purchasing lands from Jenifer, adjoining, for which he was then treating, he was to have this other half of Morris’ Landing at the same price per acre.
As the result of this agreement, we find Samuel Chapman in possession of the whole at his death, and the complainants claiming title by descent from him, allege that they are in, under the part performance of the agreement between the appellant and their ancestor, in his lifetime. It is no where pretended that Chapman evicted Morris, and it is not attempted by the appellant to shew that Chapman came in under any other title or agreement. It is not established that he went into the possession as tenant to the appellant; and John G. Chapman proves that his father received the rent from 1823 up to 1825, when he died; and his impression is that lie was always in possession. Since the death of the ancestor the possession has continued in his heirs. The partition took place in 1827, although the deed between the parceners was not executed untill 1832. The bill of complaint in this case was filed in 1833, and the witness never heard of any claim of Morris, until the ejectment suit was instituted, which it is the purpose of the bill to enjoin, and to enforce from the appellant a specific performance of his contract.
The testimony of Mrs. Elizabeth Chapman, in all its essential particulars, confirms the agreement as proved in the evidence of John G. Chapman-, that Samuel Chapman was in *31possession from the time it was taken up until his death; and within her knowledge the rents were sometimes paid to him.
There is evidence by witnesses produced on the part of the appellant, to shew that they held as tenants under him and accounted to him for the rents, and ihat they considered the appellant the owner of the land; and an order drawn upon Chapman to pay the rent to Morris, is used to repel the title set up by Chapman. There is no proof, however, that the order ever reached Chapman; or if it did, that he paid the whole amount to Moms. Relying upon that portion of the testimony which explains the motive, why .Morris, until the purchase of the other moiety by Chapman, held the patent and remained the ostensible owner, it is not inconsistent with the agreement, that he should appear to the world as the owner of the whole.
Rye and Dunnington, the witnesses, might therefore properly conceive that they had rented Morris’ land; and Morris so renting to them, is not incompatible with the existing rights of Chapman, under the declarations of Morris himself, that he had sold the lands to Chapman.
The copy of accounts between Samuel Chapman and the appellant, filed in this court under an agreement of the counsel, whatever influence (if any) it might have in the decision of the cause, we are compelled to reject. It is produced here in. the argument at the bar, and the counsel for the appellee insists, that the agreement embraced only “the copy of certain accounts already filed in this cause,” and is expressly limited to such accounts. Their introduction being opposed upon this ground, we cannot say that the agreement was intended to mean more than it expresses.
DECREE AFFIRMED.