Agricultural Bank of Mississippi v. Rice
45 U.S. 225 (1846)

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U.S. Supreme Court

Agricultural Bank of Mississippi v. Rice, 45 U.S. 4 How. 225 225 (1846)

Agricultural Bank of Mississippi v. Rice

45 U.S. (4 How.) 225

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

A bond for the conveyance of land does not transfer the legal title, so as to serve as a defense in an action of ejectment, and such a bond, when signed by married women, neither confers a legal nor equitable right upon the obligees.

In order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee.

If, therefore, the title to land is in married women, and a deed for the land recites the names of the husbands, as grantors, purporting to convey in right of their wives, the deed is insufficient to convey the title of the wives.

Nor is such a deed made effective by its being signed and sealed by the wives. The interest of the husbands is conveyed by it, but nothing more.

A receipt of money, subsequently, by the female grantors, does not pass the legal title, nor give effect to a deed, which, as to them, was utterly void.

It was an ejectment brought by the defendants in error against the Agricultural Bank and others to recover two undivided third parts of a lot of ground in the City of Natchez, bounded as follows: fronting on Main Street, between Canal and Wall Streets (formerly Front and Second Streets), beginning on Main Street, at the corner of a lot owned by the heirs of Samuel Postlethwaite, on which a large new cotton warehouse has been erected; thence along the northwestern side of Main Street, west, to the line of the lot bequeathed by Adam Bower, deceased, to his widow, now Mrs. Pendleton; thence north, along the eastern line of the said last-mentioned lot, to the back line of the said premises, where the same bounds on the property formerly owned by Elijah Bell; thence along said last-mentioned line, to the line of the lot belonging to the heirs of said Postlethwaite; and along said last-mentioned line to the place of beginning, on Main Street, and being the same property now known as the City Hotel, in Natchez.

The plaintiffs below claimed the lot as the heirs and devisees of Adam Bower, deceased, who died seized of the property, and the only question in the case was, whether or not they had conveyed away their title in the manner prescribed by law.

Page 45 U. S. 226

The circumstances are so fully set forth in the bill of exceptions, that a recital of the bill will be sufficient. The cause was tried at May term, 1843, when the jury, under the direction of the court, found a verdict for the plaintiffs.

"Bill of Exceptions tendered by the Defendants"

"Be it remembered, that on the trial of this cause, and while the same was before the jury, the said plaintiffs, by their counsel, to maintain and prove the said issue on their part, gave in evidence and proved that one Adam Bower (now deceased), in his lifetime, previous to the year 1833, was seized in fee of a certain lot or parcel of land in the said declaration, and hereinafter described. That on 16 April, 1833 the said Adam Bower, being so seized of said land, died, leaving three daughters, to-wit, Martha Phipps, wife of William M. Phipps; Mary Haile, wife of William R. Haile; and Sarah Bower, a feme sole, his heiresses, who took and inherited under the last will and testament of the said Adam Bower the said fee of the said land. That the said Martha, Mary, and Sarah, at the decease of the said Adam Bower, were infants under the age of twenty-one years. That since the death of the said Adam Bower, the said William M. Phipps and William R. Haile have both departed this life, and that since the death of the said William R. Haile, Mary Haile, his widow, has intermarried with Charles Rice one of the plaintiffs. That at the time of the commencement of this suit, the said defendants were in possession of said premises, holding the same adversely."

"The plaintiffs' counsel here rested."

"Whereupon, the counsel for the said defendants, to maintain and prove the said issue on their part, gave in evidence that after the death of the said Adam Bower, and while the fee of the said land was still vested in the said Martha, Mary, and Sarah, the said Noah Barlow and one Henry S. Holton contracted with the said heirs and their husbands aforesaid for the sale and purchase of the said lands, and in consideration that the said heirs would make and insure to them a good and valid title in fee simple to the said land, they agreed to give and pay to the said heirs for the same the sum of $40,000; $5,000 whereof should be paid in hand on the delivery of possession, and the residue should be secured to be paid in installments, to be specified, in promissory notes, to be executed by the said Holton and endorsed by the said Barlow, and by a mortgage on the said land. That the said Holton and Barlow, in pursuance of the said contract, paid the said $5,000 to the said heirs, and delivered to them twelve promissory notes for $2,916.66 1/3 each, all bearing date 16 of April, 1835, and payable as follows: three of said notes in twelve months, three others in two years, three others in three years, and the other three in four years from the date thereof, and made by the said Henry S. Holton, and endorsed

Page 45 U. S. 227

by the said Noah Barlow. And the said heirs, upon receipt of the said notes and the said sum of $5,000, delivered to the said Henry S. Holton and Noah Barlow possession of the said land, with the tenements and appurtenances, and at the same time executed to the said Holton and Barlow a bond for title, in and by which said bond the said heirs agreed and bound themselves, and their heirs, to make, execute, and deliver, after duly acknowledging the same, a full and complete general warranty deed of all said premises and appurtenances, buildings and furniture, to the said Holton and Barlow, their heirs and assigns, thereby covenanting a good and indefeasible title to said lot of ground to said Holton and Barlow, their heirs and assigns, against all persons, as soon as a surveyor can be had to make a survey of the premises to ascertain the exact boundaries. That the said bond was executed by the said Sarah, as Sarah Gibson, and by her husband, David H. Gibson, the said Sarah having intermarried with the said David H. Gibson between the drafting of the said bond and its execution; which said bond is in the words and figures following, to-wit:"

"Agreement entered into and executed this ___ day of April, 1835, between William M. Phipps and _____ his wife, William R. Haile and _____ his wife, and Sarah Bowers, parties of the one part, and Noah Barlow and Henry S. Holton, parties of the other or second part; the above-named parties of the first part, for the consideration hereinafter named, agree this day to deliver to said parties of the second part full possession of the tenements, tavern, stables, and other buildings occupied and owned by the late Adam Bower, and heretofore also occupied since his death by the said William M. Phipps, and the lot or parcel of ground upon which the same stands, being on the north side of Main Street, between Canal and Wall Streets, in said City of Natchez; and also the furniture, kitchen and household, as well as that about the stables, and belonging to and in said tavern, buildings, and said premises; and said parties of the first part do further, for the consideration hereinafter named, agree and bind themselves, and their heirs, to make, execute, and deliver, after duly acknowledging the same, a full and complete general warranty deed of all said premises and appurtenances, buildings and furniture, to said parties of the second part, their heirs and assigns, thereby conveying said lot of ground, appurtenances, and buildings, and said furniture, and warranting a good and indefeasible title thereto to said parties of the second part, their heirs and assigns, against all persons, as soon as a surveyor can be obtained to make a survey of said premises, so as to ascertain the exact extent and boundaries of said premises. In consideration of which, said parties of the second part agree to pay this day to said parties of the first part five thousand dollars, and upon the execution and delivery of the said deed to them as aforesaid,

Page 45 U. S. 228

they, the said parties of the second part, their executors or administrators, will execute and deliver to said parties their promissory notes for thirty-five thousand dollars, payable in one, two, three, and four years, in the following manner -- to be secured by a mortgage executed by said parties of the second part, and their wives, on said premises, to-wit: "

"WM. M. PHIPPS [L.S.]"

"MARTHA PHIPPS [L.S.]"

"W. R. HAILE [L.S.]"

"MARY HAILE [L.S.]"

"D. H. GIBSON [L.S.]"

"SARAH GIBSON [L.S.]"

"That the said bond, though apparently incomplete, was executed as complete, and the notes were secured by mortgage by said Holton and Barlow, according to said contract. That after the execution and delivery of said bond and notes, and when the said Holton and Barlow were in quiet possession of the premises, they handed said bond to their counsel, with instructions to have a deed drawn in compliance with said bond, and on or about 14 September, 1835, received from their counsel an instrument in writing, or deed, without examining the same, all parties supposing it to be correct, and in conformity with their directions; that the said deed was executed and delivered on the said 14 September, 1835, by the said heirs and their respective husbands. And it was intended by said heirs to convey to said Holton and Barlow the complete title of the said heirs and their husbands in said land, which said deed is in the words and figures following, to-wit:"

"This indenture, made 14 September, in the year of our Lord one thousand eight hundred and thirty-five, between William M. Phipps in right of his wife Martha, William R. Haile in right of his wife Mary, and David H. Gibson in right of his wife Sarah, legal heirs and representatives of Adam Bower, deceased, of the county of Adams and State of Mississippi, of the one part, and Noah Barlow and Margaret his wife, and Henry S. Holton and Theoda his wife, of the same place, of the other part, witnesseth that the said parties of the first part, for and in consideration of the sum of forty thousand dollars, to them in hand paid by the said parties of the second part, at or before the sealing and delivering of these presents, the receipt whereof is hereby acknowledged, and the said parties of the second part, their heirs, executors, and administrators forever released therefrom, by these presents have granted, bargained, sold, conveyed, and confirmed, and by these presents do grant, bargain, sell, convey, and confirm unto the said parties of the second part, their heirs and assigns forever, all that certain lot or parcel of ground situate in the city of Natchez

Page 45 U. S. 229

and state aforesaid, fronting on Main Street, between what were, before the confusion of names produced by the wisdom of the city council, Front and Second Streets, which said lot is bounded and described as follows, to-wit: beginning on Main Street, at the corner of a lot now owned by the heirs of Samuel Postlethwaite, on which a large new cotton-warehouse has been erected by Harriett _____, along the northwestern side of Main Street, west, to the line of the lot bequeathed by Adam Bower, deceased, to his widow, now Mrs. Pendleton; thence north, along the eastern line of said last-mentioned lot, to the back line of the premises hereby conveyed, where the same bounds on the property of Elijah Bell; thence along said last-mentioned line to the line of the lot belonging to the heirs of said Postlethwaite; and along said last-mentioned line to the place of beginning on Main Street; the lot hereby conveyed being the large tavern establishment occupied by said Bower in his lifetime, and since his death by the said William M. Phipps; also, all the household and kitchen furniture, and apparatus, and utensils about said tavern, stables, or other buildings on said lot; together with all and singular, the appurtenances, hereditaments, privileges, and advantages whatsoever unto the above described premises belonging, or in any wise appertaining; and also all the estate, right, title, interest, and property, and claim whatsoever, either at law or in equity, of them the said parties of the first part, of, in, and to the same; to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said parties of the second part, their heirs and assigns, forever; and the said parties of the first part, for themselves, their heirs, executors, and administrators, do covenant, grant, promise, and agree to and with the said parties of the second part, their heirs and assigns, that they, the said parties of the first part, and their heirs, the above described and hereby granted premises, and every part thereof, with the appurtenances, unto the said parties of the second part, and their heirs and assigns, against the said parties of the first part, and against all persons or claiming, or to claim said premises, or any part thereof, shall and will warrant, and by these presents forever defend."

"In witness whereof, the said parties of the first have hereunto set their hands and seals, this day and year above written."

"WM. M. PHIPPS [L.S.]"

"MARTHA PHIPPS [L.S.]"

"WILLIAM R. HAILE [L.S.]"

"MARY HAILE [L.S.]"

"DAVID H. GIBSON [L.S.]"

"SARAH GIBSON [L.S.]"

"Signed, sealed, and delivered in the presence of"

"N.W. CALMES, J.P."

Page 45 U. S. 230

"THE STATE OF MISSISSIPPI, Adams county: "

"Personally appeared before the undersigned, justice of the peace for said county, William M. Phipps and Martha his wife, and William R. Haile and Mary Haile his wife, and David H. Gibson and Sarah Gibson his wife, and acknowledged that they signed, sealed, and delivered the within deed on the day and year and for the purposes therein contained. And Martha Phipps, Sarah Gibson, and Mary Haile, wives of William M. Phipps, William R. Haile, and David H. Gibson, having been examined separate and apart from their husbands, and acknowledged that they signed, sealed, and delivered the same as their act and deed, free of fears, threats, or compulsion of their said husbands."

"Given under my hand and seal, this 15 September, 1835."

"N.W. CALMES, J.P."

"Received for record, 15 September, 1835."

"F. WOOD, Clerk"

"By S. WOOD, D. Clerk"

"STATE OF MISSISSIPPI, Adams County:"

"I, Fleming Wood, clerk of the Probate Court for said county, do hereby certify that the within deed is recorded in my office, in book W of the record of deeds, pages 300 and 301."

"Witness my hand and seal of office, this 16 September, anno domini 1835."

"F. WOOD, Clerk"

"By S. WOOD, D. Clerk"

"That in the said deed, by a mistake of the draftsman, the said heirs, Martha, Mary, and Sarah were not named as grantors, but that only their several husbands are so named, although said deed is executed by said heirs and their husbands."

"That on 14 September, 1835, on the delivery of said deed, the said Holton and Barlow executed, acknowledged, and delivered to the said heirs and their several husbands a deed of mortgage on said land to secure the payment of said notes according to said contract, and the said notes and mortgages were accepted by said heirs and their husbands. That at the time of the marriage of the said Mary Haile with the said Charles Rice in the year 1838, said Holton and Barlow were in quiet and peaceable possession of the said land and ignorant of any objection to their title. That the buildings on said land at the time of the purchase having been destroyed by fire, the said Holton and Barlow rebuilt the same at an expense of $100,000, which improvements were made with the full knowledge of said heirs, and without any objection on their part. And that the said Martha Phipps and Mary Haile, now Mary Rice, by accepting and receiving payments of money from the said Holton and Barlow upon the said notes and

Page 45 U. S. 231

mortgage during the time between the death of the said Phipps and Haile and the last marriage of the said Mary, and when the said Martha and Mary were of full age, which said payments were proved to have been made and received, have further ratified and confirmed the said bond and the said deed."

"That said Holton and Barlow, principally by reason of such expenditures, became largely indebted to the Agricultural Bank and the Planters' Bank, two of the defendants, and to secure that indebtedness, the said Barlow, on 5 May, 1838, executed to them a good and valid deed of mortgage, conveying to them his undivided interest in said premises."

"That the said Holton, in February, 1839, sold and conveyed his interest in said premises to the said Demon B. Spencer, one of the defendants; that said Spencer, in consideration of the terms of his purchase from Holton, did, on 27 July, 1839, convey the same by a good and valid mortgage to the said Planters' Bank."

"That the said Agricultural Bank and the said Planters' Bank are now in possession of said premises as mortgagees, and by virtue of a good and valid quitclaim deed from the said Sarah Gibson and her husband David H. Gibson."

"That the said Holton and Barlow and those claiming under them were unmolested in their possession and unapprised of any supposed objection to their title. That they have paid the whole of said purchase money."

"Which testimony, as set forth herein on both sides, was all the testimony in the cause."

"The counsel for the said defendants here offered to read in evidence the said bond for title, and the said deed herein before mentioned, in connection with the foregoing proofs."

"But to the reading of the same in evidence the said counsel for the said plaintiffs objected, because he says, that at the days of the dates of the said bond and of the said deed the said heirs, Martha, Mary, and Sarah, were under coverture, and were infants under the age of twenty-one years, so that the said bond and the said deed are absolutely void. The said judge did then and there declare and deliver his opinion, that the objection, so taken by the said counsel for the said plaintiffs, ought to be allowed; that the said bond and the said deed ought not to be admitted in evidence, and did accordingly decide that the same should not be read in evidence on the part of the said defendants; to which said opinion of the said judge, the said counsel for the said defendants did then and there, in due form of law, except, before the jury retired from their box, and prayed that the said exceptions might be signed, and sealed, and made a part of the record. And it is accordingly done."

"S. J. GHOLSON [L.S.]"

"May 24, 1843. "

Page 45 U. S. 232

To review this decision of the court below, the case was brought up to this Court.

Page 45 U. S. 241

MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.

This being an action of ejectment, the only question between the parties is upon the legal title.

It is admitted in the exception, that Mary Rice and Martha Phipps, lessors of the plaintiff, were each of them, as heirs at law of Adam Bower, entitled to an undivided third part of the premises mentioned in the declaration, in fee simple. In order to show title out of them, the plaintiffs in error relied upon the bond of conveyance and deed, mentioned in the statement of the case, both of which were signed and sealed by these lessors of the plaintiff, but were executed while they were femes covert.

As regards the bond, it would not have transferred the legal title, even if all the parties had been capable of entering into a valid and binding agreement. But as to the femes covert who signed it, it was merely void, and conferred no right, legal or equitable, upon the obligees.

The deed, also, is inoperative as to their title to the land. In the premises of this instrument, it is stated to be the indenture of their respective husbands in right of their wives, of the one part, and of the grantees, of the other part -- the husbands and the grantees being specifically named, and the parties of the first part there grant and convey to the parties of the second part. The lessors of the plaintiff are not described as grantors, and they use no words to convey their interest. It is altogether the act of the husbands, and they alone convey. Now in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and merely signing and sealing and acknowledging an instrument, in which another person is grantor, is not sufficient. The deed in question conveyed the marital interest of the husbands in these lands, but nothing more.

Page 45 U. S. 242

It is unnecessary to inquire whether the acknowledgment of the femes covert is or is not in conformity with the statute of Mississippi. For, assuming it to be entirely regular, it would not give effect to the conveyance of their interests made by the husbands alone. And as to the receipt of the money mentioned in the testimony, after they became sole, it certainly could not operate as a legal conveyance, passing the estate to the grantee, nor give effect to a deed which as to them was utterly void.

The judgment of the circuit court is therefore affirmed.

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