74 N.C. 437 | N.C. | 1876
In his complaint, the plaintiff alleged, that the defendants are indebted to him in the sum of twenty-nine hundred and eighty-six dollars and seventy-seven cents, as is evidenced by their bond, executed and delivered on the 24th day of July, 1874, and payable on the 1st day of February, 1875, which said bond is in the following words and figures, to-wit:
(438) "TARBORO, N.C. "July 24th, 1874.
"$2,986.77: — On the first day of February next, (1875,) we promise "to pay W. M. Pippin, or his order, two thousand nine hundred and "eighty-six,
(Signed) "CHAS. M. WESSON, (SEAL.) " "CARRIE M. WESSON, (SEAL.) "Credit $154.62 and $45.10."
2. That said bond was executed by Caroline M. Wesson, with the consent of her husband, Chas. M. Wesson, as testified by his signature to said bond, both assenting thereto at the same time; and the said Caroline, signing the same, at the same time with her husband and at his request, without the procurement of the plaintiff, or any other person. *333
Wherefore plaintiff demanded judgment for two thousand nine hundred and eighty-seven dollars.
The defendants, at the same term, demurred to the complaint of the plaintiff, assigning as grounds for such demurrer, that the complaint does not state facts sufficient to constitute a cause of action against the said Carolina M. Wesson, in that: It does not appear on the face of the complaint, that the contract specified as being entered into by her, was made with the written consent of her husband, or for her necessary, personal expenses, or for the support of her family, or in order to pay her debts existing before marriage, or that it was made by her as a free trader, or that the debt, secured by the note, was specifically charged on her separate estate and property, at or before the execution thereof.
Upon consideration, the court sustained the demurrer, and gave judgment against the plaintiff for costs. From this judgment, plaintiff appealed.
1. Before the adoption of the present Constitution, it was (439) recognized as settled law in this State that a wife may, when not restricted by the deed of settlement, with the consent of the trustee, specifically charge her separate estate with her contracts and engagements.Knox v. Jordan,
2. If the effect of Art. X, Sec. 6, is not to treat a married woman as afeme sole in all respects, with the exception of the restriction of conveyances which requires the written consent of her husband, then, and in that case, the marriage act is an enabling act, and authorizes a feme *334 covert to contract in certain cases. Sec. 17, Bat. Rev., 590. And the written consent of the husband is given as testified by his signature to the bond, both assenting thereto at the same time. Here is a joint contract. It is as much the contract of the wife as of the husband, and the presumption is that the written consent of the husband was (440) given at the time, or at least before the delivery of the bond. It is not inconsistent with the face of the instrument. If the husband was principal and the wife surety, it would be consistent with the face of the paper that the written consent of the husband was not given, for the wife may have signed afterwards as husband's surety. Reverse the case: Suppose the wife is principal and the husband surety, the rule must be different. For by his signing as surety for his wife, he thereby gives his consent, which is in the strongest possible form. But if the court should be of the opinion that it is consistent with the face of the instrument in this case, that Mrs. Wesson signed after that of her husband, then plaintiff insist that in analogy to those cases under the statute of frauds, parol evidence is admissible to show that it was executed at the same time. That the assent of herself and husband to their contract co-existed. The case of Miller v. Irvine,
(441) Johnstone, contra.
Married woman secured in all her estate real and personal. Constitution, Article X, Sec. 6.
No woman capable of making a contract to affect her real or personal estate, except for her necessary personal expenses, or for the support of the family, or such as may be necessary in order to pay her debts existing before marriage without the written consent of her husband. Battle's Revisal, Chap. 69, Sec. 17; Harris v. Jenkins,
The separate estate of a married woman is not liable to her personal engagements generally, but only where the debt is charged specifically upon her separate estate with the concurrence of the trustee if there be one.Draper v. Jordan,
Case of Wethers, Ex'r., v. Sparrow and wife,
See case of, The Cora Exchange Insurance Company v. Babcock,
The Constitution and subsequent legislation have greatly changed the rights of married women in respect to their property; but they remain as they were, except so far as they have been changed by such legislation expressly or by reasonable implication. The inquiry therefore is, has the Constitution, or the Act of 1871-72, Chap. 193, (Bat. Rev., Chap. 69), given to married women the power to make a contract like the one sued on? The contract sued on is a bond for the payment of money, executed by the defendant Wesson and his wife Caroline, the other defendant. It contains no reference to the separate property of the wife. It says "for value received," but of what the value consisted, or by which of the obligors it was received, is not said. It does not appear that the contract was for the benefit of the wife.
In the case of obligors pleni juris this would be immaterial. But where one of them has only a limited capacity to contract, the contract must be shown to be within her capacity. One who contracts by virtue *336 of a power, statutory or otherwise, and who, except by such power, is incapable of contracting, must pursue the power, or her contract will be void. And it must appear, in some lawful way, that she meant to act under the power; and that is the reason why there must be a reference to the separate estate and an apparent intent to charge it. It will be seen upon an examination of the legislation referred to, that it by no means, converts a married woman into a feme sole in respect to her separate property, but that it gives special powers which are carefully limited and defined, and that outside of such powers her disability (443) remains as at common law. She has no power to enter into a contract, upon which a personal judgment might be given against her, or by which she might be subjected to arrest.
It is true that when the decisions to which I have referred were made, the separate estate of the wife was a mere equity, the legal estate being vested in a trustee, and that since the constitution of 1864, she has the legal estate to her separate use. But that change has not removed her legal disabilities to contract, or extend her ability in equity. Her contract by bond is still void at law, and the courts under their equitable powers will not enforce it against her separate estate, unless the creditor has an equity to have it so enforced; that is to say, unless it was for her benefit. This is the doctrine of Yale v. Dederer,
In addition to the case cited, the following take the same views as we do, as to the effect of statutes giving to married women separate (444) estates in their property with a limited or general jus disponandi.Jones v. Crostwaite,
Sec. 6 of Art. X, of the Constitution reads as follows: "The real and personal property of any female in this State acquired before marriage, and all property real and personal, to which she may after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised or bequeathed, and with the written assent of her husband conveyed by her as if she were unmarried."
It is contended that when the Constitution gave married women separate estates in their property, it gave them by a necessary implication an unrestricted dominion over the property, to bind it directly or indirectly, except when expressly forbidden; and an unrestricted right to contract, such as a feme sole or a man has. We think there is no such grant implied.
The terms "sole and separate estate" had a known and definite meaning in the law when the Constitution was framed, and it must be taken that they were used in that instrument in the sense which had been affixed to them by prior decisions of this court. Such an estate had never been held to confer on the married woman an absolute power of disposition over the estate as if she were a feme sole, and it was never supposed that by force of having a separate estate, she had a general capacity to contract. The law was that she had such special powers only as were conferred by the deed of settlement, either expressly or by necessary implication. If the intent of the Constitution had been such as is contended for, it would have been superfluous and (445) unnecessary to proceed, as the section does, to give the separate estate special qualities, as that of exemption from the debts of the husband, and to the wife the power to devise and bequeath the property, and to convey it with the written consent of her husband, inasmuch as upon the doctrine contended for, the exemption and the wife's power of disposition would have followed as a necessary incident to the separate estate. That it was thought necessary expressly to give a limited power of disposition, shows clearly that the separate estate given was such as it had previously been defined to be, to which neither an absolute power of disposition, nor the general power to contract, were necessary incidents. The statute was intended to take the place of a deed of settlement, and must be construed as such deeds had been, as conferring on married women no powers beyond those expressly given or implied. *338
It is contended, however, that a general power to contract, with the written consent of their husbands, is given to married women by Section 17, of the marriage act above cited.
We conceive that while it would be beyond the power of the Legislature to destroy or alter the essential qualities of the separate estate given by the Constitution, as by giving the personal property to the husband, making the property liable for his debts or by destroying the wife's power of disposition; yet it is within its power to regulate the manner in which the separate estate shall be held, to prescribe what contracts and what dispositions of their estates, other than those specifically authorized by the Constitution married women may make, and by what forms and ceremonies all their contracts shall be made and authenticated, and their free consent thereto ascertained. The Legislature may abolish all the incapacities of married women, and give them full power to contract as femes sole. The question is, has it done so?
The section referred to reads as follows: "No woman during her coverture shall be capable of making any contract to affect her (446) real or personal estate, except, etc., without the written consent of her husband, unless she be a free trader as hereinafter allowed." By no fair construction can this section be read as enacting that "every married woman shall be capable of making any contract to affect directly or indirectly her estate (which would include every contract whatever) by the written consent of her husband." By using the words "contract to affect her real or personal estate," the draughtsman evidently had in mind the existing law as above stated, that no married woman could make any personal contract, but only one to affect or charge separate estate, and the object was to require the consent of the husband in lieu of the consent of the trustee, which the law required when the separate estate was created by a deed of settlement. The meaning was not that a married woman may make contracts which, by existing law, she had no power to make, but that she shall not make such contracts as by existing law she had power to make, without the consent of her husband. The intent was not to enlarge her special power of contracting into a general power, but to abridge the special power by requiring the husband's consent. this is clearly shown by the negative frame of the section. The meaning contended for would have been expressed naturally by affirmative words, directly granting the power, and it would be a most unnatural construction to hold that the mere omission to deny the power to make general personal contracts, which there was no necessity for denying as it was denied by existing law which was not repealed, was a grant of that power.
By section 26 of the act cited, it is enacted that no conveyance of her real estate by a married woman not a free trader, shall be valid *339 unless it be proved or acknowledged and her private examination taken as to her free consent. If a married woman can bind her real estate by an executory contract to pay money, as to which she is not privately examined, the safeguards against conveyances by the undue influence of her husband provided by this section, would be easily (447) defeated. Her real estate would be liable to sale under execution, and she would thus indirectly convey when she could not directly do so.
As it does not distinctly appear that Mrs. Wesson executed the bond as surety for her husband, we put that out of view. We put our decision on the ground that a married woman has no power to contract a personal debt or to enter into any executory contract, even with the written consent of her husband, unless her separate estate is charged with it, either expressly or by necessary implication arising out of the nature or consideration of the contract, showing that it was for her benefit. Whether the contract would be good if it did expressly charge the separate estate, but was not for the wife's benefit, it is unnecessary to say.
PER CURIAM. Judgment affirmed.
Cited: Rountree v. Gay,