61 N.C. App. 597 | N.C. Ct. App. | 1983
Petitioners’ first argument is that the trial court erred in granting defendant’s motion for summary judgment. Summary judgment shall be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). Petitioners contend that, although no facts are in dispute, defendant was not entitled to
G.S. 52-6 (repealed by session laws 1977, c. 375, s. 1, effective January 1, 1978), provided, in part:
(a) No contract between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of the wife . . . unless such contract ... is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land.
The deed executed between defendant and her deceased husband was executed on 26 September 1974. The petition for partition was filed 1 May 1980. The following statute was enacted, effective 1 October 1981.
Any contract between husband and wife coming within the provisions of G.S. 52-6 executed between January 1, 1930, and January 1, 1978, which does not comply with the requirement of a private examination of the wife or with the requirements that there be findings that such a contract between a husband and wife is not unreasonable or injurious to the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband. This section shall not affect pending litigation. (Emphasis added.)
G.S. 52-8.
Since this litigation was pending during the effective date of the statute, G.S. 52-8 does not affect this action. A wife’s deed purporting to convey property to her husband, without complying with G.S. 52-6, and not validated by G.S. 52-8, is void. Boone v. Brown, 11 N.C. App. 355, 181 S.E. 2d 157 (1971). This rule, although questioned, has been recently applied by this Court in reference to a separation agreement in DeJaager v. DeJaager, 47 N.C. App. 452, 267 S.E. 2d 399 (1980).
Petitioners contend that the legislative intent is to validate a deed conveyed under these circumstances, and this Court should
Petitioners’ second argument is that G.S. 52-6 is unconstitutional and cannot void the deed. They contend that the statute violates the Equal Protection Clause of the 14th Amendment of the United States Constitution, and Article 1, Section 19 and Article 10, Section 4 of the North Carolina Constitution because it discriminates on the basis of sex. Petitioner, however, is merely attempting to raise the constitutional rights of her deceased father. She does not have standing to attack the constitutionality of the statute. Petitioner must allege she has sustained an “injury in fact” as a direct result of the statute to have standing to challenge the statute as violating either the federal or the North Carolina constitutions. U.S. Const, art. Ill, § 1; Baker v. Carr, 369 U.S. 186, 7 L.Ed. 2d 663, 82 S.Ct. 691 (1962); In re Appeal of Martin, 286 N.C. 66, 209 S.E. 2d 766 (1974). Instead, petitioner’s injury is due to her father’s failure to comply with the statute, not because the statute was discriminatory as to her.
The entry of summary judgment is
Affirmed.
