135 S.E.2d 554 | N.C. | 1964
William Wayne JONES
v.
Josephine Tyndall JONES.
Supreme Court of North Carolina.
*555 Jones, Reed & Griffin, Kinston, for plaintiff appellee.
Herbert B. Hulse, Goldsboro, for defendant appellant.
PER CURIAM.
When a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235.
Recognizing this rule, defendant attempted to avoid the deed of separation on the ground that it was obtained by duress. However, neither the facts alleged nor the proffered proof are sufficient to invalidate the contract which was not executed until nine months after the parties had separated. Plaintiff's duty to support his children was *556 an obligation which defendant could have forced him to perform under both the criminal and the civil law. "A threat to withhold from a party a legal right which he has an adequate remedy to enforce will not constitute duress * * *." 17 C.J.S. Contracts § 172. Defendant has acquiesced for over seven years in the deed of separation which she would now avoid. She has shown no ground for rescision.
In the trial below we find
No error.
