Roberson v. Penland
133 S.E.2d 206
N.C.
1963
Check Treatment
HiggiNS, J.

The plaintiffs seek to 'have toe Oourt rescind toe deed and the -consent judgment by which toe parties settled their respective claims in the property -owned by Mrs. Gertrude Roberson Penland who died without lineal descendants on August 14, 1961. The defendant was -toe husband of toe testatrix. By (a) -of Item 2 of the will he was given ia legacy of $2,000.00. The remainder -of toe not inconsiderable estate w-a,s devised to toe plaintiffs -as shown by (b) of Item 2.

After toe probate of toe will the defendant filed -a dissent. Thereafter long negotiations -consisting of proposals and counter-proposals between toe parties and their counsel followed. All assumed toe husband had -a legal right to- dissent from toe will. The negotiations for a settlement -culminated in toe consent judgment which specified what properties toe defendant -should receive and that the remainder should go to toe plaintiffs who implemented toe settlement by executing a warranty deed. The defendant in the consent judgment released all further claim in his wife’s estate, including the $2,000.00 bequest.

Plow ever, subsequent to toe settlement -as sat forth in the judgment -and deed, this Oo-ur-t, in Dudley v. Staton, 257 N.C. 572, 126 S.E. 2d 590, held unconstitutional toe Legislative Act permitting -a husband to dissent from -his wife’s will. The consent judgment bad -already been signed and approved by toe court. The warranty deed had been executed, -delivered, .and recorded. At the time -of toe settlement all interested parties were sui juris. They were represented by eminent -counsel. They were -dealing at arm’s length upon a lawful subject. There is no sug- *505 gestión of -any unfair advantage. True, all parties made -the agreement in the mistaken belief the husband, by hi® dissent, became entitled to share in his wife’s estate as if she bad died intestate. The Legislature bad so provided. The provision .carried a presumption of its coustitu-■tionality. With this presumption on the pant of counsel, all parties entered into the settlement of the estate and completed the settlement 'by judgment and deed. May these be canceled by the court upon a showing the attorneys did not anticipate this Court would hold unconstitutional the provision, that a husband may dissent from his wife’s will? The question presented goes deeper than a mistake of law on the part of attorneys. Solemn documents fixing property rights 'are involved. These documents were executed in the exact form which the parties intended. On this subject, Justice Pearson used this language: “But however this may be, the plaintiff by her assent to. the legacy vested the legal title in the defendant; and the question is, does the bill disclose any .ground upon wlhich she can ask this Court to> undo what she has done, so ais to relieve her from the legal effect of her assent? * * * It is settled that mere ignorance of law, unless there .be some fraud .or circumvention, -is not a ground for relief in equity whereby to set aside conveyances or avoid the legal effect of acts which have been done.” Foulkes v. Foulkes, 55 N.C. 260.

The plaintiffs rely for a reversal upon a long line of cases, some by this Court, bolding that an unconstitutional statute is a nullity ab initio, confers no rights, imposes no obligations, bestows no power, and justifies no acts performed under it. Board of Managers v. Wilmington, 237 N.C. 179, 74 S.E. 2d 749; Norton v. Shelby County, 118 U.S. 425; Cooley, Constitutional Limitations, 8th Ed., (1927) p. 382.

The Norton case was decided in 1886. Its sweeping .statements 'have .been narrowed by later decisions. In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, the Court said: “It is quite clear, however, that such broad statements as to the effect of a determination of uniconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such determination, iis an -operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by >a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations. . . . it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”

In McLean Coal Co. v. Pittsburgh Terminal Coal Co., 238 Pa. 250, 195 A. 4, the Court held: “The uneonistitutionality of a statute is a *506 'defense to an -action only when, the liability is created by the statute in question; the invalidity of an act is of no av-ail when the liability -arise-s ■from acts indicating the assumption of liability by parties who -may, it is -true, be acting only because the statute was passed, b-ut who- are, nevertheless, voluntarily assuming a relationship which creates a liability.” See also, 49 Yale Law Journal, 959.

In this ease the ¡rights of the parties are fixed by solemn warranty dead and consent judgment. These may not -be set aside m-e-rely because eminent lawyers were unable to -anticipate that this Court would strike down the Act -of the General Assembly w-liic'h permitted the dissent. The rights of -the parties are fixed by the judgment and the deed. These documents provide road blocks which the Court -may not -remove merely because the -parties were mistaken- as to one or m-ore o-f the factual considerations which induced them.

The judgment of the Superior Court of Buncombe County is

Affirmed.