It is admitted that the extent of Perley's execution against Babb, upon his estate in the land in question, operated to transfer and convey to Perley all Babb's interest or estate in such land. It certainly could not convey any more, though it might place the estate in a different situation in respect to other persons. Let us then suppose that, instead of this extent, Babb had by his deed conveyed to Perley all his right, title and interest in and to the land belonging to his wife. The facts would then present to us no other than the common case of the division of a fee simple estate into a freehold and a reversion. The freehold or life estate would be in Perley; and the reversion would be in Babb's wife; because Babb, her husband, had not, and could not have any control over this reversion. Nothing short of a deed signed by her as well as by him could operate to convey it to Perley. The extent has not affected, in any degree, her reversionary interest. Perley, then, being only tenant for life of the land in virtue of the extent of his execution, he could not lawfully commit waste. It would be inconsistent with his estate.
The act complained of is the cutting and carrying away and selling about forty cords of wood. Of course, it was an act which a tenant for life has no right to do; it was not for fire wood nor fences; it was neither for building nor repairing.
In the case before us Mrs. Babb, the reversioner, sues Perley for committing this waste on her inheritance. Her husband is joined in the action, not because he has any interest; for that has already been legally conveyed to Perley; but because a feme covert can never sue alone, unless in two or three special cases, forming exceptions to the general rule. And now, we may ask, why should not the action be maintained? If it should be urged that it will be prejudicial to the rights of the husband's creditors, by depriving them of the power of converting the lands levied upon to any profitable use, the answer is, the creditors of the husband cannot have any more control of the wife's land than the husband himself had. The creditors may avail themselves of the profits of the wife's land in satisfaction of their demands against the husband; but if there are no profits, it is nothing more than the common misfortune of those creditors whose debtors are insolvent.
The law is consistent and just. It subjects the land to the payment of the wife's debts, and the profits, to the payment of the debts of the husband, After mature deliberation, we perceive no other mode of deciding this cause without changing the nature of legal estates, and disturbing those principles by which such estates are created and protected.
We are unanimously of opinion that the verdict must be set aside and a new trial granted.
6 Iredell's Equity (N. C), 524. - 1850.
[Reported herein at p. 70.]
4. In Modes of Transfer.
9 Cowen (N. Y.), 39. - 1827.
Curia, per Savage, Ch. J. - From the whole case the facts appear to be as follows: The plaintiff Austin, and one Orrin Wilcox, were in possession of farms in Orleans county, and each had sowed a crop of wheat on the farm by him occupied. After sowing, and in October, 1825, they agreed to exchange farms, each reserving his own crop of wheat. On the 13th of October, 1825, they executed quitclaim deeds containing no reservations whatever. Austin fenced the wheat, on the farm he had left, in the spring of 1826. Wilcox did the same as to the wheat he had sowed, and at harvest time he cut and carried it away. Wilcox did not take possession of the farm which he had of the plaintiff; but some time after contracted to assign his interest in the farm to the defendant. Wilcox then stated to the defendant, that the wheat was reserved, and belonged to Austin, the plaintiff. Some time elapsed after this parol agreement before the assignment was in fact executed. The conveyance to Wilcox was without seal, and so was the assignment, which was as follows: "In consideration of one hundred and seventy dollars, I assign over all my right, title and interest to within contract. Orrin Wilcox." Wilcox wished to reserve some trees as well as the wheat; but the defendant objected to this, as he did not wish to have them cut. It does not appear from the case when the assignment was executed; but the agreement by parol was three or four weeks before, when the wheat was reserved. The same thing was repeated when the writing was signed. The defendant's son testified that he thought he heard his father say that the wheat was reserved, and that it was Austin's. The defendant cut the wheat and put it in his own barn. There were 104 bushels.
The parol evidence of the contract between Austin and Wilcox, and of the reservation of the wheat, and also between Wilcox and the defendant, was objected to, and received subject to all legal exceptions.
From the whole case, if properly before us, the justice of it is strongly with the plaintiff. But the plaintiff's right of recovery depends on the validity of his reservation of the wheat. The defendant shows an absolute conveyance, which is a complete answer to the action unless it can be obviated.
1. As to the evidence of the reservation. The contract was first made by parol, reserving the wheat; and when the quit-claim was executed, the same parol agreement reserving the wheat was again repeated. But there is no direct evidence of a contract respecting the wheat, subsequent to that conveyance.
"There is no rule of evidence better settled," says Chancellor Kent, 1 John. Ch. Rep. 429, " than that which declares that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement. Such evidence is not only contrary to the statute of frauds, but to the maxims of the common-law."
The written instrument must be considered as containing the true agreement between the parties; and as furnishing better evidence than any which can be supplied by parol. 1 Ph. Ev. 495. 5 Cowen, 508. The testimony in the case respecting the reservation between Austin and Wilcox, relates to conversations antecedent to, and at the time of executing the quit-claim conveyance. That must, of course, be rejected, and expunged from the case. All that remains relates to similar conversations between Wilcox and the defendant, and the acts of the defendant. Before Wilcox assigned to the defendant he frequently admitted that the wheat belonged to the plaintiff. Had he sold it by parol to the plaintiff and afterwards conveyed it to the defendant, would not the plaintiff be entitled to it, on the ground that grain growing may be sold by parol; and that having been sold by a valid contract, Wilcox's assignment to the defendant, being subsequent to the sale to the plaintiff, could con-vey to the defendant no greater right than Wilcox had.