74 S.E. 327 | N.C. | 1912
Action for divorce from bed and board. In the complaint the plaintiff by proper averment alleged cruelties and ill-treatment, entitling her to divorce a mesna, etc.; alleged further, ownership of an amount, real and personal, of property by defendant, and that he was an able-bodied man, capable of earning good wages, etc. Defendant answered, denying all allegations of cruelty and set up counterclaim for divorce by reason of wrongful abandonment by plaintiff, and denied the ownership of any real property whatever, alleging that it had all been disposed of and the proceeds expended in support of plaintiff and the payment of costs and charges imposed upon him at the instance and by the wrong of plaintiff; that his personal property was of insignificant amount and that he was a man sixty years of age, who could only do ordinary manual labor and was incapable of earning any such amount as claimed in the complaint. The answer further set up a deed of separation entered into by plaintiff and defendant of date 14 October, 1909; averred full compliance therewith on part of defendant and relied upon the terms of same in bar of the action and in bar of any other or further allowance to plaintiff by reason of the marital relations between the parties. This contract and agreement was in terms as follows:
NORTH CAROLINA — COLUMBUS COUNTY.
These articles of agreement entered into between W. J. Archbell of Beaufort County and Jessie Archbell of Columbus County, this 14 October, 1909, witnesseth: That whereas the said W. J. Archbell (411) and Jessie Archbell were lawfully married in North Carolina four years ago, and for the past year have been unable to agreeably live together as man and wife; and whereas it is mutually agreeable *345 that they shall each live separate and apart from the other; now, therefore, for and in consideration of the sum of $100 to the said Jessie Archbell in hand paid, the receipt of which is hereby acknowledged, the said W. J. Archbell and Jessie Archbell do mutually agree to live separate and apart from one another, and in consideration of the sum of $100 to her, the said Jessie Archbell, paid by the said W. J. Archbell, the said Jessie Archbell agrees, and by these presents does agree, to release and relinquish all right of support, all dower right, and all other personal and property rights which she might have acquired against the person or property of the said W. J. Archbell by virtue of the aforesaid marriage, and does hereby receive and accept the aforesaid $100 in full payment and satisfaction of all and of every right that she may hold against the person and estate of the said W. J. Archbell in consequence of the aforesaid marriage, and she does further agree to abandon and relinquish and release the said W. J. Archbell of all and every right of suit that she might have against him by reason of an act of abandonment that he might have committed in the past, and further agrees to release him of any claim she might have against him by reason of the aforesaid marriage. And the said W. J. Archbell agrees to release the said Jessie Archbell of all and every right of curtesy and all rights that he acquired in any property that she might have or might in the future possess and all personal rights that he might have acquired against her by virtue of the aforesaid marriage. And it is mutually agreed that they shall each live separate and apart from the other, independently of the other to the same extent as if they had never been married, and each shall in the future contract and be contracted with independently of the other to the full extent as if they had never been married.
In testimony whereof the said W. J. Archbell and Jessie Archbell have hereunto set their hands and seals this 14 October, 1909.
JESSIE ARCHBELL (SEAL).
W. J. ARCHBELL (SEAL).
And same was acknowledged before a justice of the peace in (412) ordinary form of privy examination; probate adjudged correct by Superior Court Clerk, Beaufort County, and duly registered in said county on 28 October, 1909. On issues submitted the jury rendered the following verdict:
1. Were plaintiff and defendant married, as alleged? Answer: Yes.
2. Has plaintiff been a resident of the State two years before filing the complaint? Answer: Yes.
3. Did defendant in 1908 and up to February, 1909, fail and refuse *346 to furnish plaintiff and her child proper and sufficient food, clothing, and other provisions, as alleged? Answer: Yes.
4. Did defendant on and shortly after February, 1909, assault the plaintiff with strops and other instruments, as alleged? Answer: Yes.
5. Did the defendant in the year 1906 strike plaintiff with his hand, as alleged by her? Answer: Yes.
6. Did defendant assault and beat plaintiff prior to May, 1906, as alleged? Answer: Yes.
7. Did defendant shortly after February, 1909, assault plaintiff on or near the bridge with her child and whip her, as alleged: Answer: Yes.
8. Did defendant wrongfully take plaintiff's infant from her and carry it out of the State, as alleged? Answer: Yes.
9. Did defendant offer such indignities to the person of plaintiff as to render her condition intolerable and life burdensome? Answer: Yes.
10. Did the defendant by cruel and barbarous treatment endanger the life of plaintiff? Answer: Yes.
11. Has the defendant been a resident of North Carolina two years preceding the filing of his answer, as alleged? Answer: Yes.
12. Did the plaintiff abandon the defendant as alleged? Answer: No.
13. Was the deed of separation procured through fraud and undue influence? Answer: No.
On the verdict defendant through his counsel tendered judgment for divorce a mensa and denying order for alimony by reason of the (413) contract, etc., above set forth. The court being of opinion that the deed of separation was void as a matter of law, entered judgment for divorce and awarding alimony, $15 per month for support of plaintiff and $75 to be paid into court as fees for Ward Grimes in conducting present suit, and defendant excepted and appealed.
After stating the case: In Collins v. Collins,
While our statute, as stated, recognizes these deeds as valid, it makes no definite regulation as to their contents or their effect when made, except in 2116, which provides in general terms that when a woman is living separate from a husband, either under a judgment of divorce or a deed of separation executed by the husband and wife and registered in the county where she resides, she shall be deemed and held a free trader with power to dispose of her personal and real estate without her husband's assent and the question being to a great extent without authoritative decision in this State, we must recur for guidance to the general principles applicable and to well-considered precedents elsewhere as to the nature of these instruments and the conditions and circumstances under which they may be properly upheld. From a consideration, then, of the authorities, we take it as established that articles or deeds of separation are permissible where the separation has already taken place or immediately follows; but that agreements looking to a future separation of husband and wife will not be sustained, and from the apparent weight of opinion it seems in making such agreements, under the circumstances indicated, the parties must be moved to it by adequate reasons, and not from mere "mutual volition or caprice" under circumstances of such character as to "render it reasonably necessary to the health or happiness of the one or the other," a position well stated in a case from Montana as follows: "An agreement between husband *348
and wife providing for a separation, an adjustment of their respective interests in property and for the future support and maintenance of the wife, is valid only when it is to take effect at once and is immediately complied with, and when the marital relations are of such a character as to render a separation necessary for the health or happiness of one or the other. Mere willingness to live apart is not enough, neither will the agreement be enforced when it is the result of mutual caprice or reckless disregard of marital obligations; neither will such an agreement be enforced when it is to be used as a means to facilitate a divorce." "Held, accordingly, a demurrer to the complaint was properly (415) sustained, where the complaint alleges the agreement to live apart, the mutual obligations thereunder, and the breach of the contract by the husband, but neither the agreement nor the complaint contains any statement of facts showing the necessity or cause for such separation." 19 Montana, 115. This case and the principle it sustains is referred to with approval in a full and learned note to Baum v. Baum,
It may be that our statutes, 2107, 2108, hereinafter more particularly referred to, resolve this question in favor of the Federal decision, and the difference appearing in these cases is not perhaps of the first importance, as it will be a very rare occurrence when a deed of the kind is made without adequate reason moving the parties — a condition assuredly present in the case before us.
It is further established that if the parties resume the conjugal relations the agreement will be rescinded. This has been directly held with us in Smith v. King,
The authorities also hold that these agreements, even when valid, do not affect the right of the parties to sue for a divorce for causes occurring either before or after they are entered. Bailey v. Bailey,
No error.
Cited: Pierce v. Cobb,
(419)