133 N.C. 352 | N.C. | 1903
Lead Opinion
This action was brought in the Superior Court upon a note of which the following is a copy:
$275.00.
Warrenton, N.'O., Dec. 14, 1899.
On demand we or either of us promise to pay to Harvey, Blair & Co., with interest from date, at the rate of six per cent, per annum, the full and just sum of two hundred and seventy-five dollars for value received. And Ella B. Johnson, one of the principals in this note, binds her own separate estate for the payment of this note, the aforesaid two hundred*354 and seventy-five dollars having been advanced by aforesaid creditors for the benefit of her said estate.
S. B. JOHNSON, (Seal.)
J. A. Johnson, X (Seal.)
Ella B.. Johnson, (Seal.)
The plaintiff alleges that at the time the action was commenced the sum of $170.63 was due on the note and that the feme defendant Ella B. Johnson was at said time seized and possessed of a house and lot in the town of Warrenton, and also owned household and kitchen furniture which is worth $350.
The defendants S'. B. and J. A. Johnson answered and admitted that they owed the balance alleged to be due on the note, but averred that the Court had no jurisdiction of the action upon the contract, as the amount alleged was less than two hundred dollar’s. The feme defendant answered and alleged that false representations were made in order to induce her to sign the note. She also avers that the lot in Warrenton is worth less than $1,000, and she denies her liability upon the note.
The cause came on for trial, and upon motion of the defendants to dismiss the action on tire pleadings the Court dismissed the same upon the following grounds:
1. Because it does not appear that the feme defendant executed in due form a sufficient conveyance charging her separate estate.
2. That no consideration inured to the benefit of the separate estate of Ella B. Johnson, and she had no capacity to make the said contract.
3. That it appears from the complaint that her separate personal estate does not exceed the personal exemption of five hundred dollars allowed by law.
*355 4. That as to tbe other defendants, the sum demanded is under two hundred dollars, exclusive of interest.
The judgment of the Court helow was right as to the defendants S. B. and J. A. Johnson. They could not he sued in the Superior Court on a note the balance due upon which was less than two hundred dollars. It was proper to join J. A. Johnson with his wife as a defendant in this action, by which it was sought to subject her separate estate to the payment of the note, but he is only required to be a party for the protection of the interests of his wife, and no judgment could be rendered against him. The Code, sec. 178; Nicholson v. Cox, 83 N. C., 48; Vick v. Pope, 81 N. C., 22. We think, though, that the Court erred in dismissing the action as to the defendant Ella B. Johnson. The grounds upon which the action was dismissed as to her are not tenable. It apnears that she executed the note with the written consent of her husband, and expressly charged her separate estate with its payment, and it further appears on the face of the note that the consideration was money advanced for the benefit of her separate estate. This would seem to be quite sufficient to make her liable to the plaintiff through a charge upon her separate personal estate, at least. Flaum v. Wallace, 103 N. C., 296; Farthing v. Shields, 106 N. C., 289; Bailey v. Barron, 112 N. C., 54; Weathers v. Borders, 124 N. C., 610.
The remaining contention of the defendant that, as it appears the separate personal estate of Mrs. Johnson does not exceed the exemption of $500 allowed her by law, she is therefore not liable to the plaintiff, cannot be sustained. The fact that the person property is of less value than five hundred dollars does not affect the jurisdiction or power of the Court to declare that it shall be charged with the payment of the obligation she has assumed. The law, by so charging her separate personal estate with the payment of this debt, does not deprive her of her personal property exemption. The judgment
We have not overlooked the fact that the personal property of which she is said to be possessed is household and kitchen furniture. Chapter 91 of the Acts of 1891, p. 89, provides that whenever household and kitchen furniture is conveyed by chattel mortgage or otherwise, as allowed by law in this State, the privy examination of any woman interested in it shall be taken. This Court has construed that act as applying only to chattel mortgages and conveyances of a like kind which create liens upon the property. Kelly v. Fleming, 113 N. C., 133. It has no application to a case like the one now under consideration. In Farthing v. Shields, supra, the Court said that the reason which greatly influenced the Court to decide in Flaum v. Wallace that the wife could charge her separate personal estate with the mere written consent of her husband was that she could convey or transfer her personal property with his written consent, and therefore she should be allowed to charge it, while in the case of real property she could not convey it without privy examination, and therefore she should not be permitted to charge it unless it is done in the same way. Under the act of 1891 she is not forbidden to convey household and kitchen furniture absolutely, though she
It is suggested that while the feme defendant is liable on the contract she is so liable as if she were a feme sole and not only by way of charge upon her separate estate, and that as the amount sued for is under two hundred dollars the action should have been brought before a justice of the peace, and the Superior Court therefore had no jurisdiction. We cannot yield to this suggestion. A married woman is not liable on her contract as if she was not under coverture except in cases provided in sections 1828, 1831, 1832 and 1836 of The Code. She is not liable on her contract at all, as we will see hereafter. This Court has held in a long and unbroken line of decisions that she is incapable of making a contract of any sort, and any attempt of hers to do so is not simply voidable, but absolutely void. If, however, she possesses separate property, the Court in the exercise of its equitable jurisdiction will so far recogr nize her agreement as to make it a charge thereon. But even in that case and in that jurisdiction her contract has no force whatever as a personal obligation or undertaking on her part. Dougherty v. Sprinkle, supra; Pippen v. Wesson, 74 N. C., 437. If a married woman borrows the sum of one hundred dollars and gives her bond for the same she is no more liable upon the bond than she was at common law. Huntley v. Whitener_, 77 N. C., 392. A feme covert is at law incapable of making any executory contract whatever; she cannot malee any legal contract, that is, one which will impose a personal obligation, even with the written consent of her husband, nor even if the contract is for her benefit and advantage. Flaum v. Wallace, supra; Farthing v. Shields, supra. The liability upon the agreement of a feme covert being therefore a mat
It is claimed that these principles have been modified by the decision of this Court in Neville v. Pope, 95 N. C., 346, and other like cases. In order to show that this cannot be so it is only necessary to say that in the case cited the defendant made no defence and judgment by default was entered, so that it did not appear to the Court at the time of the judgment that she was a married woman, and the Court proceeded upon the assumption, as it had a right to do, that she was not, but was personally liable for the debt. The Court clearly intimated, though, that if she had entered the plea of coverture she would have been successful in the suit. Nor do we think that chapter 611 of the Acts of 1901, as construed by this Court in Finger v. Hunter, 130 N. C., 532, has changed this law in any respect. It is provided by that act merely that a married woman shall be liable for repairs and improvements put upon her property with her consent or procurement, and that in such a case she shall be deemed to have contracted for the same. The act of 1901 is an amendment to section 1181 of The Code, which subjects the property upon which the repairs or improvements are made to a lien. This brings the case directly within the reason for the decision in Smaw v. Cohen, 95 N. C., 85. In that case the jurisdiction of the justice was sustained by reason of the express requirement of the statute that a suit against a person to
It-would seem hardly necessary to refer to the class of cases in which the Court has sustained the right to enforce the contract of a married woman, who is a free-trader under sections 1827, 1828, 1831 and 1832 of The Code, or a contract made by virtue of any other statutory provision authorizing her to contract as if she were sui juris. In such a case it is too clear, even for argument, that she is personally liable just as if she were not married or as if she had contracted as a feme sole. Her obligation is a legal one and not a mere equitable charge upon her separate property, and must be enforced in the court having jurisdiction of such cases, which will be determined by the amount involved.
The case of Dougherty v. Sprinkle, supra, as the transcript in that case will show, was brought not to enforce a mechanic’s lien or any kind of lien, but to recover upon an implied promise to pay the reasonable value of work and labor done and material furnished. It was in the nature of an action of assumpsit. The principle laid down in that case ivas no more impaired by the act of 1901, chapter 617, as construed in Finger v. Hunter, than it was affected by the decision in Smaw v. Cohen. The principle of Dougherty v. Sprinkle remains to this day just as it was when the case was decided in 1888, notwithstanding the case of Smaw v. Cohen, in regard to the enforcement of liens and other cases relating
We have seen that no change has been made by legislation in the law as repeatedly stated by this Court, and it may safely be inferred that the Legislature has accepted our construction of the statute as the proper one and has acquiesced in it as being in accordance with what the law should be. It having been decided, as we have shown, and there being no expression to the contrary, that a married woman’s engagement can only be enforced in equity against her separate estate, it necessarily follows that the jurisdiction in all such cases, except when otherwise expressly provided, must be in the Superior Court, without regard to the amount in controversy.
The payment of the note cannot be enforced in this case against the real property of the feme defendant, as there was
We bold, in conclusion, that tbe defendant Mrs. Johnson has sufficiently charged her separate personal estate with the payment of the note sued on, and that the Superior Court had the jurisdiction to enforce the charge. In this respect there was error in the judgment below. The judgment will be set aside and a new trial awarded.
Error.
Concurrence in Part
dissenting in pari. I concur with the opinion that the bond sued on is a valid indebtedness against the feme defendant, and that the fact that her personal property may not exceed $500 cannot be set up as a defense, because the judgment against her will he enforced by an execution just as a judgment against any one else, and the personal property exemption must be claimed by her against the execution and not as a defense to the action. A manned woman’s contract no more creates a lien on her property, unless it includes a mortgage or a conveyance, than does a contract by any one else. Bates v. Sultan, 117 N. C., 100. The Code, sec. 1826, permits a married woman to make any contract for the payment of which her real or personal property shall be liable if made with the written consent of her husband, except in three instances there stated, in which she may contract without his consent. Section 1828 prescribes a method by which she can contract in all cases without her husband’s assent, and section 1832 prescribes what conduct of her husband shall have the effect to authorize her to contract in all cases without his assent. Cromer v. Marsha, 122 N. C., 563; Levi v. Marsha, 122 N. C., 565, in which cases judgment before a justice of the peace was sustained. Here the contract is for money borrowed with the assent of the husband. The action is for a plain judgment to recover $110.63 and nothing more. Always
If a married woman is liable to a judgment less than $200 before a justice of the peace on an implied contract, under the act of 1901, the jurisdiction is necessarily the same upon
Here the contract, unlike that in Dougherty v. Sprinkle, is held valid by the Cburt. The statute (The Code, sec. 178) provides that a married woman may be sued. The Code, sec. 1826, authorizes her to make this contract, and it is held a valid contract. The Constitution, says actions on contracts less than $200 are within the jurisdiction of a justice of the peace. The Constitution makes no exception. We have no right to create an exception. As Daniel, J., well says: “Judges cannot be wiser than the law.” Even if we could write such exception to the jurisdiction of justices of the peace into the Constitution, what benefit can accrue therer from. ? Why not follow the Constitution ?
In a less polite age the Judges held that a husband had a right to chastise his wife, and that while a single woman (if of age) was competent to manage her own business, she suddenly became incompetent and non sui juris upon marriage, and as suddenly resumed her intelligence again upon becoming a widow. The Constitution of 1868 did away with this inexplicable and unaccountable condition of things by expressly making married women sui juris, without any restriction on their property rights save requiring the husband’s assent to conveyances by them. Some Judges, under the influence of preconceived ideas as to the universal incompetence of married women, failed to give effect to this ordinance of emancipation as to them,, by reason of which, and some others subsequently, many decisions as to married women in this State are in conflict with each other and in flat contradiction to the Constitution. The resultant confusion is set out in Vann v. Edwards, 128 N. C., 431-434, in a summary of the decisons by Professor Mordecai in three pages of fine, closely-printed type. There is no better time to return to the plain
In England and all her colonies and in nearly every State of this Union, by statute or constitutional provision, the emancipation of married women has been decreed, and in many instances even without the single restriction imposed by our Constitution. In this State alone have the decisions of the Courts failed to be in accord with such action of the law-making power. In this case the contract sued on having-been held valid, the Constitution fixed the jurisdiction in the justice of the peace, and in my judgment this action brought in the Superior Court for the recovery of $170.63 was properly dismissed by the Judge below, though not for the reason he gave. The jurisdiction to recover upon this bond is held to be in the justice of the peace as to the co-obligors. There is nothing in the Constitution or statute which indicates that recovery upon a valid obligation of the feme defendant is not enforcible in the same jurisdiction. Neville v. Pope and Finger v. Hunter, supra. There is no reason that when a married woman borrows ten dollars for her own use she should be suable only in the Superior Court, with the increased costs and delay, while if the husband borrows $200, recovery can
No statute, with the utmost research, has yet been found which authorizes or suggests the “charging” of a wife’s property for her contracts. As “it is our duty to construe or expound the law and not to make it,” we should not continue a ruling which besides has been expressly overruled. In Brinkley v. Ballance, 126 N. C., 396, the Court held (Faircloth, C. J., alone dissenting) as follows: “An examination of the Constitution, Article X, section 6, and of the statute, The Code, section 1826, shows no foundation for the ‘charging’ of tire wife’s property, as laid down in some decisions of a former Cburt. The Constitution requires only the written assent of the husband to ‘conveyances,’ and section 1826 requires only the written consent of the husband to contracts affecting the wife’s ‘real or personal’ estate in certain cases, dispensing with it in others.”
The Code, section 178, authorizes a married woman to be sued; Laws 1899, ch. 78, take her out of the class of those non sui juris (who are enumerated in 'The Code, sections 148 and 163, and nowhere else), and permits the running of the statute of limitations against her; and The Code, section 443, directs that execution issue against a married woman. The provision that it shall be levied only upon her separate property can have no effect other than to exempt what she holds ex jure mariti, i. e., her contingent right of dower. There is nothing else to which the restriction could possibly apply. As a married woman can by the Constitution use her property “as if unmarried,” save that the husband’s written consent is required to her “conveyances” only; as by The Code, sections 1826, 1828 and 1832, she can contract as if unmarried, except that in some cases, mentioned in section 1826, the husband’s written consent is required (nothing more) ; as by The Code, section 178, she can sue without join-
