*1 Y9 1904. TEEM, N. O.] v. Bruton. Smith
SMITH v. BRUTON. (Filed 30, 1904). November C., 1. AWARD—Husband ARBITRATION AND and Wife—Const. Code, X, Art. sec. 6—The sec. 1882. by agreeing
A married woman cannot bind herself to arbitrate question title to land owned her. Code, 2. secs. PLEADINGS —Consideration—The allegation An of new matter in an answer not relative to a coun- plaintiff. ter-claim is deemed controverted Deeds—Judgments. AND HUSBAND WIPE— only by deed, duly A married woman can be bound executed privy with the written assent of her husband and with her examination, competent of a jurisdiction.
Clark, J., dissenting. C. M. A. Smith J. G. Bruton others,
ActioN Allen, heard O. H. by Judge April Term, 1904, Superior Court MONTGOMERY From a County. defendants plaintiff appealed.
for. &
Shepherd Shepherd, plaintiff. j Adams Robbins, & Jerome Armjield and H. M. for the defendants. J. This
Montgomery, action was brought by to recover of a possession tract of which she claims to be owner. The defendants contest her claim on the grounds, first, they those under whom claim they possession the same for fifty sec- years, and, ond, that the before this suit plaintiff, brought, en- into an tered agreement Kron Adelaide and Elizabeth IN THE SUPREME COUNT. Bkutoh. *2 title, into an who to.tbe to enter arbitra
Kron, laud, claimed tion arbitration was to' settled thereto; have. title that and returned to Court in wbicb tbe bad award and made Adelaide and to the was be in title property adjudged award was made a Kron; Elizabeth that tbe award that by that tbe plaintiff estopped tbe Court de land. In their answer the claiming.the was a that the plaintiff fendants further averred although of her' ease time of the woman at the married submission been mar that continuously and has since time arbitration, her husband had by been abandoned ried she that woman, yet into, a,t bad not been entered agreement time she tbe him, has not since ten for more than years, with living ever since was that and has that time him; she lived said that In her plaintiff trader. reply been a free in tbe ber alleged husband “as abandoned by not been had answer.” wo- a married then Can is, main in
The case question the title consent to have husband joinder man ? of arbitrators award by to ber real determined tbe estate not be neces- that will however, defendants contend, The Their insist this case. question that in counsel to decide sary that she says in her wherein that that statement reply, answer,” not “as alleged husband has abandoned as is averment required such defendant’s not denial to, therefore, as true that it is taken The and that be Code, by admission; abandoned own ber husband bad ber ber, by consent to the to' that so only had being right tbat without the even to tbe deed convey but arbitration, to, It so. If do written assent of husband she wished the respect conceded plaintiffs reply, should to a. denial of the was not sufficient amount complained of, ber it is to be re- husband, abandonment by yet charge on on that no the part membered reply question TERM, N. C.] v. Bruton. was The matter on the
plaintiff part averred necessary. defendants not a was deemed counter-claim, and controverted direct denial or plaintiff upon
avoidance. Code, The sec. arbitrators their award had about nothing say whether or had not the her hus- abandoned band. declared They that she was a married woman during award the arbitration and period children, ac- the Court held estopped present tion rendered in Superior *3 the award of arbitrators. the further contend that as the ad defendants in
mitted to arbitrate she was a agreement citizen of this and in her a State, declaration to become free trader she stated had Arizona, that her husband was a citizen of she her land of to deed under convey decisions right express this Court, and, if she had a to therefore, right convey land would have to to arbitra right deed submit of tion the settlement her title. decisions this of But Court which counsel do not sustain their rely upon position. Walker, 118 N.
We referred Hall v. and C., 380, Marsha, C., Levi v. 122 N. In the first-mentioned case the Court said: “The 1832 of question sole section whether The Code was constitutional. That section as follows: woman whose abandon ‘Every shall her or mali husband shall turn her out of doors' shall be free ciously trader, deemed so far as to be to contract and contracted competent with, * * * and to bind her separate property, shall power her convey personal property and real ” estate without the assent of her husband.’ In case just above referred plaintiff’s to the husband had deserted had years, abandoned her out continuously five or State, had been seen heard from by the wife, 1ST-6
82 IN THE SUPREME COURT. v.
Smith Bruton. lie of herself or her way no contributed the support before ns there was no such family. ease evidence their arbitrators award offered, finding by or on failure to or desertion, support cruelty abandonment of the husband. part Marsha, In Levi v. supra, husband resided Syria and had never been in the States either as a resident United or as a visitor. The wife a debt with plaintiff, contracted question the sole whether was liable on per- contract. sonal
A North Carolina married woman in can bound as to two' her deed only ways: By duly executed written assent her husband and with exami privy or nation, court of decree competent requirements jurisdiction. As of the first method, the decisions of are and we will very numerous, mention Battle, v. only Scott 85 those N. 39 C., 184, Am. Shields, Rep., 694; 106 Farthing N. C., Smith v. Ingram, C., 100, L. R. A., 878; to the latter v. Branton, cases Green method, the 76 N. C., 500; v. Ingram, supra. But it may be Does asked, *4 not the fall present case within the decisions of the two last mentioned cases? Was a there not and judgment decree the in a which against plaintiff of her jurisdiction and her person of if property, and, so, was she not bound by that decision and a judgment? Undoubtedly woman married would have right the under section 178 of The Code to bring without tire of her action, joinder husband, to settled title or the connected with right her separate real estate, and if, upon the trial and regular disposition of that a suit, or of judgment tire decree Court should be rendered lrer she would be bound by it, and the would be thereafter a matter of estoppel by record in any subsequent claim she make to' the might property. reason for that FALL TEEM, N. G] v. Bruton. married, under of the woman’s interests the eye
is are the law as and or decree is based Court, its and facts out to the conditions written applied brought case. developed In an arbitration matter different- Arbitra- entirely tors are not bound to make their award to law, according will evidence; are bound they weigh make a of the it is on its face award, regular fraud, there no evidences of without are inquiry to how the arbitrators arrived at their conclusion. it is So that if evident a woman of perfectly married could dispose her real of her joinder sub- estate, by husband, mitting part title of arbitrators, section Article X, of the Constitution which ordains that a married woman, with her husband, written her real assent may convey a estate, would dead be letter. If such married law, or by women, design means fraud deceit, might arbitration be of their estate hus- deprived real and the band of his deprived therein before he had rights knowledge of the matter, or it in If pownr prevent case. either woman married could real estate arbi- dispose through would indirect tration, method to do that enabled which the Constitution and will the laws prohibit, never allowed.
That was a can trader make no difference. free As we have said, there are two only ways by which married woman can of her real dispose estate —one with the deed, written husband examination, assent privy decree a court of competent jurisdiction. However, free question right trader her separate estate does not arise in this charge case, record shows that did matter here involved *5 not concern any transaction other the than settlement of the THE COUNT. IN SUENEME V.
SMTI-I BRUTON. land. not that It appear does ownership creditors or owed debts. of this that
We to state in beginning opinion omitted the 'defendant’s state in brief the counsel their appellant that the has filed to the exceptions below. plaintiff took a
The nonsuit after his intimation of Honor estopped award judgment. do how statement into brief We understand this crept of the defendants. We however, that it was an inad- know, vertence. There was a in the statement that the nonsuit was taken plaintiff because his Honor’s inti- Be- mation, plaintiff appealed. sides, assignment of error there is in (and only one) these words: “That the Court erred that the holding record up set in the answer was res or an adjudicata estoppel against plaintiff, could not plaintiff recover upon plaintiff admission of'the could not recover if such record did constitute an or res estoppel adjudicata.”
Reversed. Walker, J., part took no in the decision of this case. dissenting. recovery This is an action for the Clark, J., of land. only exception The in the record is to the ruling Court that between the parties same for the same cause of action is an estopped this action. plaintiff brought action for re- of land covery of tract and in its heretofore, prosecution she arbitration, submitted to an court, rule which embraced also subject-matter this action. that action was in the adjudged Superior after Court, Term, Spring both matters reciting controversy as stated in the agree- ment therein to arbitrate court, rule of under “that the plain- tiff nothing taking action, judgment is rendered *6 TERM, C.] v. Bruton. * * * award was for costs.” plaintiff Tlie against J. with. Marmaduke S. and S. Pemberton, by made Kobbins the Court with- ICerr and was by umpire, approved Craige, have She could objection any her. suffered hardly out if she not now. but, should so, objected then, injustice; action con- The sec. 178 “When (1), provides Code, she separate may cerns her married sue (a woman) property alone.” This action concerns the plaintiff’s separate prop- she also (as brings she the former action erty, brought “If she she this) may sue, her husband. joining in her it is favor; must be a bound by judgment sec. Herman she must bound also.” on Estoppel, her, action entered into an agreement the former award a arbitration, court, to be rule of was entered thereon in of the award coming judgment nor taking no exception above stated, plaintiff making action sui As she was alone party appeal. statute, of the she is juris (as now) by then virtue ex- her or assented bv orders in bound by cause re- final which judgment cepted to, especially by the If she arbitrators. finding ferred to adjudged arbi- misconduct- of either for objection awards, had any to the action, party incapacity trators, any alleged her, thereto, certainly incapacity she was under to consent thereon; entered then to being raise objection judgment and not so she is judgment done bound like having If was in her own right. action bringing other person arbitration and award she was in not bound so. She is should bound certainly have said as a bar to interposed thereon. When that the judgment properly held action, the the same admitted these lands are “it being estoppel, former complaint in the plaintiff’s lands described as an to arbitrate the agreement action” —thus recognizing COURT. IN SUPREME THE Smith v. Bkuton. effect. A amended wliich it was in complaint, cannot thus attacked. should collaterally action to direct bring aside, set *7 recovery in such action a of though prayer might is in joined, there complaint impeach- this allegations indeed even ing the reference judgment, thereto.
Objection that former action as originally made cause of action. brought did embrace this But as this, well as action, the other cause concerned only separate and she could for this property, as well sued as that, have Code, without joining husband. The sec. 178 She (1). could complaint have both into the put when first stating cause of action. or By leave consent parties could been complaint to amended it. embrace This was in effect done when both in a written parties agreement set out the matters in controversy referred by them to the arbitrators under rule of court. as sui to parties juris, This, would certainly conclusive as all to matters embraced such agreement, award for after thereon, judg ment it cannot be objected no complaint at all filed. Robeson v. Hodges, C., 50, numerous other cases cited in Clark’s Code (3 p. Ed.), Here, agreement recited the matters writing carefully as controversy, did the award which was approved by judgment of the Court. As to this matter, which is an action concerning sepa rate made property, sui plaintiff is and author juris feme ized alone” “sue her husband joining Code, (The sec. 178 (1), and is bound the judgment as hence as fully who one else to sue. authorized
The former notion of prevailing the inferiority of married women sole was based the fact origi- femes captured wives were nally or in war and chat- bought TERM, N. O.] Bkuton. his who law of
tels. the English stated Shakespeare, usually his makes Petruchio wife: time accuracy, say chattels; my my my house, goods, Slie is she is My stuff, my field, my barn, household horse, my ass, my My ox, my anything.
But in between any distinction England property woman has single of married and her sister rights branch, since as done abolished, root has been long of this in most of States colonies and English State, the distinction as property rights Union. sole and was abolished by
between covert /ernes femes sec. 1868, convey Art. X, Constitution save a married woman written assent ances realty *8 135 Edwards, Vann v. N. C., husband was required. not noted that is requirement any lingering
It should be ones, of women to idea of married inferiority single the. ais a but half-emancipated class,
intended as a protection for of purpose protecting for the exactly opposite provision is by legislation) not abolished courtesy (if husband’s husband’s wife’s joining a of the merely correlative empow the statute to bar dower. Accordingly conveyances for her a to sue separate property, woman alone ers not her if does Limitations runs against of she Statute compe in the former litigation, sue. sui juris Thus she additional the recital complaint by tent to amend the judg and bound by matters she wished to be passed upon no ment the award. By process reasoning, upon can a nor stretch judgment metaphysics, imagination, a called ejectment in an action against shown). collusion was charged “conveyance” (unless bar conveyances wife husband to join must adverse in an but if he suffer action an dower, judgment a is not is invalid because recover she judgment land, IN THE. SUPREME COUNT. Smith v. Bruton. to the action. party This case is for the is stronger, wife statute alone. if expressly empowered to sue Even had been broader than the or if complaint, there from was judgment unappealed complaint, binding upon as one else bring authorized action. often so held. Here This has Court action obtained woman. brought by married has woman This often bound held married is when defend brought even is into as a ant and her will. against In Vick v. Pope, C., Smith, J.,C. says where husband wife are sued jointly husband to set the wife’s duty up dis fail to do so cannot have ability, he wife the judg ment against set aside on the ground of incompetency to contract. that a lie a married wo says judgment against man in the suit appearing by counsel of her husband’s selec tion is as one unless it binding against any person, be obtained the fraudulent combination of the husband adverse He 26: litigant. pertinently added page “If it how could a valid otherwise, ever be obtained a married woman how her lia could be tested? If bility disabled a false resisting can claim, how prosecute an action for her own benefit when nothing definite is ? determined It result is no answer say sufficient that the execution of the defendant’s *9 note with her husband did not bind her. The con clusively establishes the and obligation, such facts must be assumed to rendition, exist as its warranted inasmuch as neither coverture other defense was set inup opposi tion to defeat it. sue, a married woman and As, then, may her husband sued with on of them and contracts, they each must time resist the proper recovery at as other defend ants, and their failure to do so must he attended with the same This been has often with consequences.” case ap cited TEEM, N. 1904. 89 0.] V. BRUTON. tíMITII on this
proval many other v. point, among cases, Jones Cohen, 82 C.,N. 91 90; Grantham v. N. C., 156; Kennedy, Hartman, v. 92 Williamson v. 95 Neville C., 242; Pope, Arnold, N. C., Wilcox v. 351; C.,N. v. 711; Strother Railroad, 123 N. C.,
This is a stronger for case, here the plaintiff brought former action sui juris as statute; authorized se- lected her own counsel, agreed to the as a arbitration rule and made court, no objection to the the award, judgment upon which she was as fully competent to do in that action as she in this, which likewise alone. In the brought by suing Court proceeding, the had unquestionably jurisdic- and tion, if there was it defect was error entering the award and that judgment upon was cured by failing v. object Neville appeal. Pope, p. supra, In Vick v. Smith, J., Pope, C. cites as supra, authority J.,C. in Frazier v. Taylor, 8 N. Felton, 231, Green C., v. Branton, 16 N. in which C., the elder says: Ruffin “Married women are barred at law as by judgments much with persons, the sole exception allowed judgments * * * fraud of the husband combination another. She must charge that she was prove prevented fair trial at law collusion adversary between her and her husband, or at trial.” preceding v. Neville had been taken Pope, supra, a married woman before a justice of the peace, (unlike this) a action to direct set aside the judgment, stress plaintiff laying upon Daugherty Sprinkle,
C.,N. 300, which it had held that such action could maintained, but that ground Judge overruled — Merrimon named following three Justices above Chief (Taylor, a unanimous Smith) speaking Ruffin J., Ashe, C. (Smith, may said: “It be that J.), in this defense, case made her cov- pleaded *10 IN TI-IE COURT'. SUPREME Beuton. v. from erture, given against the adverse appealed not make been but her, successful; would did her accord- all, defense at and as there Court, treated as to it must be conclu- the course ing as war- sive that action such facts cause ranted judgment.” v. Grantham same learned Kennedy, supra,
said: are estopped by judg “Married women and infants in the same manner they parties ments actions which are above did the sui Yet none cases juris/' as persons coverture, waive but, being married woman it. But was held bound excepting judgment, went into went and voluntarily here further as the statute suing alone, coverture waiving court, action. in this doing present her to do as she authorized for aside the former This is not a motion set nor irregularity, mistake, excusable neglect ac was taken The judgment it for fraud. impeach action aas rule an arbitration entered upon to due course cording entered court, plaintiff, signed or her counsel. objection the award new action is brought of nine years, After acquiescence fop adjudicated by title same whose are adjudications . uniform As judgment. our infants estopped by judgments “married women and are manner per are in the same actions to which they parties cited, cases Kennedy sui juris” sons (Grantham held. correctly so his Honor below supra), No Error.