29 S.E.2d 729 | N.C. | 1944
BARNHILL, J., dissenting.
DEVIN and SEAWELL, JJ., concur in dissent. *236 Civil action in ejectment.
The plaintiffs, who had been married to each other, were divorced in 1936. Thereafter the feme plaintiff held herself out and did business as a single woman. On or about 1 September, 1940, she authorized her attorney, Thomas J. Moore, to sell her house and lot in the town of Wilson. Pursuant to this authorization, Moore forthwith negotiated a contract with the defendants for the purchase of the property. They were told that the feme plaintiff was unmarried, and at the time the deed was drafted, which was prior to its execution and delivery, she made the statement in the presence of one of the defendants that she was a single woman. In the deed "Birdie S. Buford" is designated "party of the first part."
The sale was consummated 21 September, 1940. In the meantime, however, the feme plaintiff had gone to Dillon, S.C., and on 15 September, she and her former husband were remarried. This fact was not disclosed to her attorney or to the defendants at the time of the execution and delivery of the deed, albeit the deed is signed "Mrs. Birdie S. Buford."
On 18 March, 1942, the feme plaintiff and her husband instituted this action to recover possession of the land, alleging that the deed of 21 September, 1940, was void, because executed by the feme plaintiff, a married woman, without the written assent of her husband or privy examination as required by law. The plaintiffs offer to make the defendants whole by accounting for the purchase money, offsetting improvements against rents, etc.
The defendants admit the allegations of the complaint in respect of the deed, but allege that they were defrauded by the plaintiffs, in that they schemingly withheld from the defendants the fact of their remarriage, and such conduct is set up as a bar to the present action. The precise denomination of the plea is estoppel in pais.
On the hearing, "it was admitted . . . that the plaintiff, Birdie S. Buford, is the owner of the land in question unless she is estopped in accordance with the allegations of the answer."
The plaintiffs' demurrer to defendants' evidence on the plea of estoppel was sustained, and the demurrer to the amended answer was not passed upon as it "raises the identical question."
From judgment in favor of plaintiffs, and retaining the cause for an accounting, etc., the defendants appeal, assigning errors. The plaintiff, a married woman, executed a deed to her land without the written assent of her husband or privy examination as required by law. The grantees allege that during the negotiations she represented herself to be unmarried. She offers to return the purchase money and to save the grantees harmless, but they decline to surrender possession. Plaintiff sues in ejectment. The defendants plead estoppel in pais.
Is the plea of estoppel good? The law answers in the negative.
In Scott v. Battle,
The question of estoppel was fully discussed in the case of Williams v.Walker,
It is contended, however, that all these earlier cases were rendered apocryphal by the passage of the Martin Act in 1911. G.S.,
Admittedly the deed given by the plaintiff to the defendants is void for failure to comply with the terms of the statute. Whatever rights and remedies the defendants may have against the plaintiff in other respects, and she offers to comply with these, it will not do to say the plaintiff has title to the land and yet she shall not have it, or that the defendants may hold it under a void deed. 50 A.L.R., 956. The Constitution and statutes forbid. In no previous decision have we exacted of a married woman divestiture of her land as a penalty for misrepresenting her capacity to convey it. Nor has she been permitted, by any voluntary act, to circumvent or to set at naught the provisions of the law intended for her protection. Equity abhors fraud and diligently seeks to prevent it or to redress it wherever found, but it also follows the law. One who deals with a married woman is chargeable with knowledge of her disability, and that she can convey her real estate only in the manner prescribed by the Constitution and laws on the subject. Johnson v. Bryan,
But supposing the plea of estoppel were held to be good, what would be the result? The plaintiff with title to the land could not recover in ejectment. Yet if perchance she should obtain possession of it, the defendants could not recover in ejectment on a void deed. Thus the law would be in the position of saying to the parties:
*239"He may take who has the power; He may keep who can."
Such, we apprehend, would ill befit the law. Mosseller v. Deaver,
It all comes to a narrow compass: By the Constitution and laws of this State a married woman is incapable of making a valid conveyance of her real estate without the written assent of her husband and privy examination duly taken and certified. Hence, she may not convey it by estoppel, or fraudulently divest herself of coverture, if such characterization be preferred. A married woman cannot by a simple declaration or by intentional fraud change her status from feme covert to feme sole and thus convert a void deed into a valid conveyance of her real estate. Nor will equity close the doors of the courts to her in the assertion of a legal right. Estoppel is applied against those who are capable of acting in their own right in respect of the matter at issue, and not against those under specific disability in respect of it. Morris Plan Co. v. Palmer,
"A married woman is no more estopped by her acts in pais than by her covenant of warranty. This Court has said that no one can reasonably rely upon the acts and representations of a married woman, at least those which are contractual in their nature, as he must know that she is not bound thereby, and `it is only in the case of a pure tort, altogether disconnected with the contract, that an estoppel against her can operate —'" Walker, J., in Smith v. Ingram, supra.
It should be observed that the case is one in which the parties have undertaken to form a contractual relationship with each other, and not one in which a third person has dealt with the property in ignorance of plaintiff's rights. Bishop v. Minton,
With the above disposition of the case, no cognizance need be taken of the fact that all the evidence comes from a single witness, namely, the attorney who represented the feme plaintiff at the time of the execution and delivery of the deed, McNeill v. Thomas,
The judgment seems to be in accord with our former decisions.
Affirmed.