Knight v. Thayer

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 of estoppel; because she was incapable of binding herself by covenant of warranty or by agreement to convey her real estate. Wight v. Shaw, 5 Cush. 56. Lowell v. Daniels, 2 Gray, 161. McGregor v. Wait, 10 Gray, 72.

But by the Gen. Sts. c. 108, § 3, every married woman is made capable of bargaining, selling and conveying her separate *27real 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, with no other restriction than being required to obtain the assent of her husband, or the approval of a judge of this or of the Superior 01 Probate Court, to any conveyance of shares in a corporation, or of real property, except a lease for not more than a year. Any conveyance or contract executed by a married woman in accordance with the power thus conferred is binding upon and may be enforced against her to the same extent as if she were unmarried. Baker v. Hathaway, 5 Allen, 103. Basford v. Pearson, 7 Allen, 504. Faucett v. Currier, 109 Mass. 79. Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241. Richmond v. Tibbles, 26 Iowa, 474.

It has been the settled law of this Commonwealth for nearly forty years, that, under a deed with covenants of warranty from one capable of executing it, a title afterwards acquired by the grantor enures by way of estoppel to the grantee, not only as against the grantor, but also as against one holding by descent or grant from him after acquiring the new title. Somes v. Skinner, 3 Pick. 52. White v. Patten, 24 Pick. 324. Russ v. Alpaugh, 118 Mass. 369, 376. We are aware that this rule, especially as applied to subsequent grantees, while followed in some states, has been criticised in others. See Rawle on Covenants, (4th ed.) 427 $ seq. But it has been too long established and acted on in Massachusetts to be changed, except by legislation.

The necessary conclusion is that, under the mortgage with full covenants of warranty, executed by Mrs. Thayer with her husband’s assent, the demandant is entitled to the demanded premises as against her and her husband, and also as against Mrs. Knight, to the extent of the interest since acquired by Mrs. Thayer and conveyed by her to Mrs. Knight.

Judgment affirmed.