*1 1909. 781 TEEM, SPEÍNG N. O.] BÁNK BKNBOW. one at time agreements might any contracts and this
similar 2 Corporations (4th Ms of the stock.- Cook part demand back Cook, Ed.), 622; Hun., 641; Guernsey v. Fisher Bush. 35 sec. v. Mass.,
120 a cor injunction compel A mandamus or lies mandatory of officers. election compel to transfer stock and poration Moran, 29 L. R. Trust Co. v. 309; Cook sec. Corporations, on Co., 745, 54 Pennsylvania Fed., 741, Railroad v. 750- A., 212; Felton, Fed., v. 752; see. Railroad High Inj., 2; Court, been held having of trusts voting illegality Co., Bridgers Improvement Harvey ante, Staton, voting trust enjoined his Honor properly control over the com in this case from using exercising any voting and from mon of Power Eockingham Company stock adjudging and in meeting whatsoever, the same issued receipts bona owners of such stock and -holders fide vote the therefor said committee shall be entitled.to voting in all meetings of shares to which are entitled number voting trust enjoined stockholders said company, from reorganization'. out carrying any plan
Affirmed. BENBOW et
MERCANTILE J. NATIONAL BANK al. L. v. Mrs. May, 1909.)
(Filed 25 Personalty Separate Note— Wife —Wife’s Husband and —Wife’s Charge Specific-by intendment. Consent of Husband — alone, signed con but with the written A note a covert separate personal property sent of her will not bind payment expressly or clear intendment to its when it does not charge application create a sought payment. for its to be bound Realty Separate Note —Con- Wife —Wife's Husband and —Wife’s Charge Specific Equity—Privy Examination. sent of- Husband — — payment a a bind her real to the For covert to her, given by she must execute a formal some note paper writing equity charge which estate, accompanied by the written assent of her husband privy examination. arguendo. dissenting, J.,C.
Clark, b- -CS) IN THE SUPBEME COUET. [ISO
Baiík v. Benbow. *2 Murphy, J., jury, Term, ActioN tried before and'a at October 1908, of Wilkes.
These issues were submitted : 1. “Is the defendant indebted the And if plaintiff? feme so, in sum?” what Answer: in- “Yes; $163.20, indebted with terest from maturity.” the “Were sued on acceptances signed the defend- feme
ant by the consent of Answer: husband?” “Yes.” her. 3. “Did the defendant own a separate estate at personal feme the time the were acceptances signed and suit And brought? if so, how much?” Answer: from “Yes; six hundred to eight ” hundred "dollars. 4. “Did the defendant own a separate estate at personal feme the time of the trial ? And if so, how much ?” : “Yes; Answer $13,000.” His Honor rendered judgment the against defendant, feme
Mrs. Benbow, upon the issues as found, directing that it be collected of out estate personal only. The said defendant duly excepted appealed.
L. M. Lyon and & Manly Hendren for plaintiff.
C. G. Gilreath H. C. Caviness for defendant. J. The defendant was the owner and con- Brown, feme .in ducting a store the town Wilkesboro. Through her hus- band she certain from purchased Bixler & Go. in jewelry and, payment therefor, executed six promissory signed notes, by her- self alone, but the written consent her husband, which was found the to. have given been certain letters in the record. appearing These notes or were as- acceptances signed to plaintiff the value maturity. before
The complaint upon notes, declares the and asks for a judg- ment against the defendant The only. male defendant is a nominal party, relief him. being asked form all same, the notes to wit: Ohio, June,
“Cleveland, “Tw;o months after date to the order of M. F. pay Bixler & Go., the sum limited, of thirty-two dollars, without interest, at their office Ohio. Cleveland,
“(Mrs.) S. L. Benbow.” TERM, N. SPRING- C.] BEjXBOW.
BANK for instruction and Appropriate prayers exceptions present for our of the defendant liability upon consideration the contract as herein set out. charge
There is no estate contained debt, in' the evidence of other executed paper writing connection and there is from therewith, nothing writing which an intent to estate charge implied. so,
That we think the of the court below contra being ruling venes the of law .contracts of principles governing executory married women as decisions of the Court enunciated numerous since when first in Harris v. subject considered, Jenkins, Wesson, Pippen From the cases adjudged covering period thirty years *3 -law rule of be deduced. In order that a married woman may make an contract enforcible may against personal executory estate it must be done with the written assent of her and the contract must clear expressly by intendment create a estate. implication specific charge personal real the covert In order that she bind her may feme formal or some paper writing must execute either a estate, which in accom charged Upon be equity may assent of her husband and her privy the written panied by in Ball An of the latter is to be found example examination. Paquin, case that neither the Consti- Pippen
In the this Court held a married tution nor statute law of the State conferred upon in executory woman to enter into an contract any power statute, instances in the now section the mentioned in a unbroken -line ease, long of the Revisal. Since is incap- has held that a married woman decisions, this Court and that sort, attempted able of a contract of making are statute, unless as are void. contracts, such authorized by and reaffirmed so often by These decisions have been repeated are supra, they regarded this Court that in Ball v. Paquin, Mr. decisions,” Justice Connor as who refers “controlling them in decisions controlling these words: “In the absence make hold that she could we should contrary, unanimously IN THE SUPREME COURT. [150 Benbow. Bank v. of her husband, manner of-contracts with tlie assent if liable as she
and that for a breach of them her were a sole.” feme in of this
This has been so much discussed decisions subject to review them 'is again unnecessary unprofit Court that fully able. Both sides of the are controversy presented Mr. Justice Walker and the dissent opinion of the Court by v. John Harvey of the Chief Justice the case of ing opinion son, 133 N. p.C., -the pretense any express implied charge
contract on estate of the defendant sued which can enforced a court of Because the equity. have found that owns a separate personal defendant it ground charging performance estate affords with the contract. such may
Our laws in what manner married women become provide so contracts as traders, readily free that their be enforced if were unmarried. Their is easily status they ascertained register reference to the of deeds those who deal with them in If neglect information, business. to obtain such it is the loser’s fault. n His Honor erred the defendants’ declining prayer nonsuit, instruction. As there was no motion to there must be a Trial.
New J., dissenting: diligent C. The most research shows *4 Clark, no statute forbids a married woman to make contract “with the assent” of her husband. The statute which has been Code, 1826, Revisal, relied on is The now which forbids husband, her to make contract “without the assent” of her e., cases, named, three i. for for necessaries, support of the and to for which she can family, pay antenuptial debts, contract without his assent. The contract with- prohibition out the husband’s assent in the other cases than the three cases named is not a of the to contract certainly prohibition power with assent, his but a that she can contract with recognition the husband’s assent. ' TERM,
N. SPRING O.]
BaNk v. Beiíbow. is a (Revisal, Tbe to act as free trader right 2112) dispensa- without tion witb tbe to contract tbe husband’s prohibition assent in all cases. As this is conferred tbe husband’s assent be can bis assent to each contract as all, once certainly it arises. convey
Tbe Constitution allows a woman to her land witb and tbe Court has often held tbe assent of her can draw that, land, as tbe assent is as to she required only It without bis assent. checks and dispose Edwards, 135 N. 661. A. C., was so held in Vann v. fortiori can she contract with bis assent.
A married woman can draw checks and drafts without her if is on them not assent, and, course, paid. husband’s liable her real Revisal, buildings She is liable estate ivith- acquiescence thereon her verbal assent repairs put Hunter, Revisal, 2016; Finger ou-tthe assent of her husband... must be liable when tbe contract C., course, N. Of she
is assent. made witb bis Chas. it has been (29 II.)
Ever since tbe Statute of Frauds But it has writing. held that land can be conveyed only make a contract one cannot consequence never been held that if such a sale of land. But which could be enforced verbally can her land witb tbe law, convey were tbe as a married woman with bis assent. she can contract husband, certainly assent married forbidding Tbe courts have no to enact a statute right Tbe Legis- women to contract witb tbe assent of tbe husband. mar- emancipated not so. Tbe Constitution has
lature has done full control of their property ried women them by giving otherwise, will or it earnings, right dispose tbe writ- of real estate there must be tbe save that as to conveyances wife to tbe tbe analogy joinder ten assent of tbe husband —in husband’s realty. of tbe freely of tbe wife to contract That there is no prohibition Ballance, Brinkley is held with tbe husband’s .assent Sultan, and Bates v. power and tbe Court has “charging,” statute requiring and in of tbe Constitution it. tbe spirit enact It 150 —50 *5 IN THE SUPREME COURT. [150 BENBOW.
BANK violation, of tlie women enfranobised status married created it. student of tbe of tbe law knows that tbe Every bistory doctrine of was created in an effort to “charging” England confer married women of wealth to contract on power tbe tbe faith of their at a time when tbe law there did property, not, now, them unrestricted control of their and property freedom to contract tbe assent of their husbands. even-without Century Reform,, See Law 354-358, 368-373, 376; Dicey-Law and is Opinion England, 369-393. the doctrine Certainly, obsolete and an anachronism when the wife has contracted here, with the assent of her husband and she can convey realty with his assent and it. other without
If there are decisions of this or courts which any preceding forbid a married woman to contract with the assent of hus band, A they should be modified or overruled. court should its own (as overrule errors this Court has shown it is strong to as well as of a enough do), Indeed, the errors court below. errors of court more the'higher correction, demand imperiously are injurious. zero, more Ten times zero is only an error ten times repeated acquires thereby approximation correct. It is error being still, an more harmful only Ballance, As we have as repetition. Brinkley supra, precedent that, we can follow if ’a is precedent essential. defendant bought plaintiff’s goods, price at the
$163.20, indeed, the' written assent of her husband and, his through agency. She has and now refuses kept goods them, pay though $13,000 find that she is worth in personal besides is property, realty. honesty It but common that she adjudged $289.' pay sign shred of a statute that that she not provides liable for such contract when made with the assent of her husband.
The decisions that a wife cannot contract with the assent of her husband, she can though convey assent, with his realty can make contracts many without his dispose j>ersonalty assent, have not rule become a and to correct the error cannot affect title. As the husband’s assent is not for her required protection of her disposing personalty, assent is sufficient protection there conveying realty, such *6 TERM, 1909. 0.] -SPRING-
Batman v. Batman. can be no reason why husband's assent was not enough pro- tection in these purchasing goods when there is no statute that more. requires Howell, Bank
In C.,N. Court, rec- effect, sole, ommended a statute a wife permitting to contract as a feme without the assent of her husband in cases, as is the law in England, New York, and our States. But that adjoining would require amending Revisal, 2094, which forbids to contract without her husband’s consent in certain. cases. Here she contracted with the assent of her and there is no statute making incompetent these articles. Her buy n estate has benefited to the extent of the jewelry bought.
ROBERT EATMAN ALBERT EATMAN.
C. C. Daniels for plaintiff. F. W. Woodard and Pou & for defendant. Finch Plaintiff appealed.
Per Curiam : assignments The ten of error -relating to Ques- tions of evidence are without merit and present no reversible error, and require discussion at our hands. i controversy submitted to the fairly jury by judge and we below, find no error in his charge, exceptions it cannot be sustained.
Affirmed.