29 S.E. 835 | N.C. | 1898
Lead Opinion
The deed executed by the husband and wife charging her land, is full and explicit. It specifies and describes the property to be charged, itemizes the debts for which said lands were charged, and sets out that the charge was executed with the written consent of the husband (though that sufficiently appears by his joining in the execution of the deed. Jones v. Craig miles, 114 N. C., 613; Bates v. Sultan; 117 N. C., 94). The deed contains a covenant that the charge shall be binding for all renewals of the debts specified. This would be so without any agreement, unless a different intent appeared. Hyman v. Devereux, 63 N. C., 624; Bank v. Manufacturing Company, 96 N. C., 298.
The wife’s privy examination was duly taken. There is a most rigorous compliance with the specific charge
The feme defendant sets up that the privy examination is invalid because she was imposed upon by her husband’s representations, was ignorant of the legal purport of the charge, and the officer who took the examination did not explain her rights to her. To this it must be observed: (1) No statute requires that the charge shall be made with privy examination. This is not a conveyance of real estate as to which the statute {Code, Sections 1246(5), 1256, 2106), still requires privy examination of the wife, but merely the contract of the wife, as to which the simple requirement of The Code (Section 1826) is “with written consent of her husband.” (2) The allegation of ignorance, and being imposed upon by her husband, would not be sufficient even when a privy examination is required by statute, since she does not allege that the party to whom the instrument was made had knowledge of or participated in the alleged fraud or imposition. Riggan v. Sledge, 116 N. C., 87. (3) The Act of 1889, Chapter 389. provides that where a privy examination is duly certified, it shall not be held invalid because procured by fraud, duress or undue influence, unless the grantee had notice
The male defendant sets up in his answer specific allegations as to usury, and demands forfeiture of the interest, and, as a counter-claim, the recovery of double the interest paid by him. The Code, Section 3836, gives the action to recover double the interest, and it has been repeatedly held that this can be done by way of counterclaim to an action upon the note or bond. Smith v. B. & L. Association, 119 N. C., 257, 261; indeed, Chapter 69 of the Acts 1895 specially provides that this recovery may be had as a counter-claim in the action. The plaintiff not having replied to the counter-claim, the defendants would have been entitled to judgment thereon {Code, Section 249), but, as the case goes back, the Court in its discretion will doubtless permit the reply to be filed. Code, Section 274.
The plaintiff relied chiefly upon the ground that, being a National Bank, the defendant could not sue it in-a State court for the recovery of double the interest, and therefore, of course, could not set up that demand as a counter-claim in this action. But by the Act, approved July 12, 1882, Congress conferred the jurisdiction of such actions upon the State courts. Morgan v. Bank, 93 N. C., 352.
It was error to render judgment upon the pleadings,
Error.
Lead Opinion
STATE OF NORTH CAROLINA — Forsyth County.
This paper-writing witnesseth: That whereas H. B. Ireland and his wife, A. S. Ireland, of said county and State, have executed and delivered to the Wachovia National Bank, of Winston, N.C. their following notes for borrowed money, to wit: One note in the sum of $1,000, dated 5 November, 1894, payable 4 months after date; one note in the sum of $1,000, dated 1 November, 1894, payable 4 months after date; one note in the sum of $1,000, dated 3 November, 1894, payable 4 months after date; one note in the sum of $1,000, dated 1 December, 1894, payable 4 months after date; one note in the sum of $1,000, dated 13 December, 1894, payable 4 months after date; one note in the sum of $1,000, dated 12 January, 1895, payable 4 months after date; and whereas the said A. S. Ireland has endorsed the following notes, signed by H. B. Ireland, executed to E. A. Elbert Co., and endorsed over to the said Wachovia National Bank, and now held by it, to wit: one note in the sum of $1,040.67, dated 3 October, 1894, and payable 6 months after (573) date; one note in the sum of $1,080.67, dated 3 October, 1894, and payable 12 months after date; one note in the sum of $1,120.67, dated 3 October, 1894, and payable 18 months after date; and whereas the said H. B. Ireland and his wife, A. S. Ireland, have executed and delivered said notes, and the said A. S. Ireland has endorsed the said notes with good faith, and with full intention to pay the same according to the terms thereof; and whereas the said H. B. Ireland desires to give his written consent to the signing and endorsing of said notes by his said wife, A. S. Ireland; and whereas the said A. S. Ireland desires to bind her separate estate for payment of her aforesaid obligations, and to mention specifically the separate estate so bound and charged by her: Now, therefore, the said H. B. Ireland, for himself, does hereby ratify and confirm and give his written consent to the signing and execution *356 and delivery and endorsement of the aforesaid obligations, and any and all renewals of the same by his said wife, A. S. Ireland, and also gives his written consent to the execution of this paper-writing by his said wife, A. S. Ireland; and the said A. S. Ireland, for herself, and by the written consent of her husband, as aforesaid, does hereby charge and specifically bind her following separate estate for the payment of all her aforesaid obligations and any and all renewals thereof, the said separate estate so charged and bound by her being as follows, to wit: First, a tract of land containing 350 acres, lying in or near Fulton, in Fulton Township, in Davie County, N.C. and known as the home place, and being the land which descended to the said A. S. Ireland from the estate of her mother, Emma Sharpe; second, also a tract of land (574) containing 500 acres, known as the county line place, in Calahan Township, in Davie County, N.C.
The consideration for the execution and delivery of this paper-writing to the Wachovia National Bank is for the aforesaid purposes, and the further consideration of the sum of one dollar in hand paid to the said H. B. Ireland and his wife, A. S. Ireland, by the said Wachovia National Bank, the receipt of which is hereby acknowledged.
In testimony whereof, the said H. B. Ireland and his wife, A. S. Ireland, have hereunto set their hands and seals, the day and year first above written.
The deed executed by the husband and wife charging her land is full and explicit. It specifies and describes the property to be charged, itemizes the debts for which said lands were charged, and sets out that the charge was executed with the written consent of the husband (though that sufficiently appears by his joining in the execution of the deed. Jones v.Craigmiles,H. B. IRELAND. [SEAL] A. S. IRELAND. [SEAL]
The wife's privy examination was duly taken. There is a most rigorous compliance with the specific charge required under Flaum v. Wallace,
The feme defendant sets up that the privy examination is invalid because she was imposed upon by her husband's representations, was ignorant of the legal purport of the charge, and the officer who took the examination did not explain her rights to her. To this it must be observed: (1) No statute requires that the charge shall be made with privy examination. This is not a conveyance of real estate as to which the statute (Code, secs. 1246 (5), 1256, 2106) still requires privy examination of the wife, but merely the contract of the wife, as to which the simple requirement of The Code (section 1826) is "with written consent of her husband." (2) The allegation of ignorance, and being imposed upon by her husband, would not be sufficient even when a privy examination is required by statute, since she does not allege that the party to whom the instrument was made had knowledge of or participated in the alleged fraud or imposition. Riggan v. Sledge,
The male defendant sets up in his answer specific allegations as to usury, and demands forfeiture of the interest, and as a counterclaim, the recovery of double the interest paid by him. The Code, sec. 3836, gives the action to recover double the interest, and it has been repeatedly held that this can be done by way of counterclaim to an action upon the note or bond.Smith v. B. and L. Assn.,
The plaintiff relied chiefly upon the ground that, being a National bank, the defendant could not sue it in a State court for the recovery of double the interest, and therefore, of course, could not set up that demand *358
as a counterclaim in this action. But by the act, approved 12 July, 1882, Congress conferred the jurisdiction of such actions upon the State courts.Morgan v. Bank,
It was error to render judgment upon the pleadings, ignoring (577) the defense of usury and counterclaim set up in the answer of H. B. Ireland.
Error.
Concurrence Opinion
concurring: I concur in the judgment of the Court, but not in the intimations therein that the feme defendant might have bound her real estate without acknowledgment and privy examination.
To hold that she could have done so, without acknowledgment and privy examination, would be contrary, to the traditions of the common law and to all our adjudged cases.
Whether the Legislature could provide for the conveyance of the land by femes covert without acknowl-edgement and privy examination, is not the question. If it could do so, it has not done so, and I hope it will not. They have little enough protection now. Do not take this little from them.
