Jones v. Craigmiles

114 N.C. 613 | N.C. | 1894

Shephekd, C. J.:

Prom the context of tlic writing sued upon we are of the opinion that it was intended to expressly charge the separate estate of the wife, and it is effective for that purpose so far as the separate personal estate is concerned. In the case of. an express charge it is not necessary that it should appear-that the consideration is beneficial to the wife ; nor is it necessary that the separate estate should be specifically described. Flaum v. Wallace, 103 N. C., 296. It is also unnecessary that the assent of the husband should be signified by a separate clause. His execution of the paper jointly with his wife is a sufficient compliance with the law in this respect. ■ Farthing v. Shields, 100 N. C., 289.

This obligation, however, being in the nature of an execu-tory contract and enforceable only in equity by declaring it a charge upon the separate estate (Dougherty v. Sprinkle, 88 N. C., 300), it is necessary that the complaint should describe the property sought to be charged, and as the plaintiff has failed to do this the demurrer was properly sustained by his Honor. Such is the logical effect of holding an action of this kind to be in the nature of a proceeding in rem. 1 McCord Married AVomen, 254. See also, Bell v. Arrington, 94 N. C., 247, in which the proper averments were made. In Dougherty v. Sprinkle, supra, the case of Hulme v. Tenant, 1 Brown C. C., 16, and 2 Story Ecp Jurisprudence, 1397, were cited, and it will be seen from these authorities and many others referred to in the notes that the property, or ■at least so much of it as is sought to be charged, must be described in the complaint. ' *

In Sexton v. Fleet, 6 Abbott Prac. Rep. N. Y., 10, it is said: “ AVhenever this equitable relief has been granted to a creditor he has set forth in his bill or complaint the particular property out of which he has asked to have the debt satisfied (Vanderboyden v. Mallory, 3 Barb. C. R. 9 ; N. A. Coal Co. v. Dyett, 20 Wend., 570, and see all the cases collected in the English and American notes to Hulme v. Tenant, 1 White & Tudor’s L. C. Eq., 65; see also, McQueen Husband and Wife, 294; 1 Daniel Chancery Frac., 205); and where bills have been filed to enforce a charge upon the wife’s property, merely averring that she has a separate estate, without stating its character, nature or kind, they have been dismissed.”

It may be observed, in conclusion, that in proceedings of this kind equity will in proper cases lend its aid by the appointment of a receiver or such other interlocutory orders as may be necessary to protect the rights of a creditor. Coon v Brook, 21 Barb., 548. Affirmed.