*1 SEPTEMBER TEEM, 1899. C.] WALTON BRISTOL. V. insolvent be the defendants apportioned equally between who signed plaintiffs, note, the solvent defend
ants, to the aggregate parts apportioned solvent defend to be ants added to their rata original and that pro shares, will the amount for constitute which will be ren judgment dered this action.
Modified and remanded. Bank, KATE E. BRISTOL, WALTON L. A. Receiver of Piedmont Morgan ton; THE NATIONAL BANK OF WILMINGTON. (Decided 12, 1899.) December Married Woman's Property Real, Personal —Power — 6, X, Art. Sec.
Convey, Constitution —Power Estate, Code, Pier The Sec. Charge 1826. Separate power of a married Tbe woman to real regulated personal, by 6, Constitution, Art. sec. by must be exercised assent of her written husband. power reg- charging 2. Her to make contracts estate is Code, requires' ulated which similar assent. property may charged disposed 3. Her her husband
without assent. 4. Where a married woman wrote her name and across the $1,250 belonging her, back of a to secure which $615, hypothecated payee, another note for A. Bris- L. tol, Walton, dead, and her now E. delivered (both notes) same to the Piedmont Bank as secur- ity bank, to his due said indebtedness which became increased dealings $3,000, further when Walton his note executed amount, Bank, for that indorsed the Piedmont and bor- money Wilmington, rowed the from the Bank of National paid with which sum he off his indebtedness Pied- ‘ notes, by agreement which retained mont wife’s with her as collateral its for indorsement $3,000 Wilmington; 'Held, of his note to Bank arrangement required wife, this last the assent of the which no there was evidence. IN THE SUPREME COURT.
Walton *2 immediate of possession for the certain Action Civil and tbe notes, plaintiff, claimed promissory L. A. Bristol, receiver the Piedmont defendant by held McNeill, J., at tried before Spring Bank of Morganton, Court of BuRKe County. 1899, of Term, Superior facts were found his was and the waived, by Jury trial and she plaintiff, Honor, who rendered judgment- Court- to the Supreme and appealed excepted in are recapitulated his Honor fully The facts found by the opinion. Ervin, & for appellant. & Avery, Avery
Avery Ervin, 8. J. for appellee.
MoNtgomiciíy, J., opinion. writes Clark, opinion. writes dissenting J., MontgomuRY, on the of the part This is action <T. the defendants the cer- possession recover of plaintiffs *3 tinuing to have mutual the all times bond at remain- dealings, in the of the bank.” that- time the After ing possession indebtedness of the husband to the bank became increased by in a overdrafts amount until it amounted to about large That borrowed $3,000. amount was from the other defend- ant, the National Bank the hus- of Wilmington, E. S. band, and for which he his note executed Walton, pay- that bank. note was able to That endorsed the Piedmont Bank upon $1,250 with the husband that the agreement it as note should be the with placed by security loss reason of endorsement $3,000 note, its of the and in order to secure the note. At the payment that the loan bank E. husband, time”of the the S. by Wilmington Walton, letter, the with the bank acquainted Wilmington Later, between him and the Piedmont Bank. agreement E. Walton, S. the wrote to the bank Wilmington $1,250 that the note was with deposited the Piedmont Bank as a the $3,000 endorsement of the note. The amount realized on the note $3,000 from the E. bank was Wilmington Walton the applied by pay- his indebtedness the Piedmont Bank. The ment of $3,000 still and E. note is due S. Walton is unpaid, dead, THE SUPREME COURT.
-1-22 IN these transactions the Since Piedmont insolvent. Ms estate is the and was receiver, L. A. Bristol failed; Bank has mentioned and the other paper writing the note possession action time this was commenced. at the in the complaint set ont as above of facts substantially finding Upon below the Court adjudged by it was considered stated, of the was not entitled possession that plaintiff plaintiff appealed. sued for, if are: that First, of the plaintiff, The contentions be con and transfer of the note by plaintiff endorsement same to the Piedmont as a sale or sidered conveyance hus with the -written assent it was not executed Art. sec. of the Oonstitu1 as was band, required that if the and was therefore invalid. endorse tion, Second, an the plaintiff, ment be attempt by wife, considered the husband not entered estate, charge having must because it thereto, attempt fail, Ms written assent Code; and, tMrd, of The under prohibited it be considered as the wife to' attempt by pass note to her it was inef title to the in the was not made to- the fectual, because it according reqrnre- 1835 of The ments of sec. Code. *4 are: that the endorse- First,
The defendants’ contentions in wife was effectual to vest the the property ment the by that a married woman has for Bank, they say Peidmont or dispose assent of her sell husband, with the verbal right, a line law drawn in and that the has action, of her chosés married 'contracts of and executory between the executed the wife the endorsement by that Second, women. he hands of her husband, it the and the note, placing and defendants, being it to the they was enabled to transfer the fact that value are not affected by for innocent purchasers of the virtue Third, woman. by was a married she TERM, O.] v. Bbistol. between E. agreement Walton, husband, and the Pied- Bank, mont and the subsequent between agreement them and in reference Wilmington bank, to the $3,000 note, $1,200 nóte the hands of the Piedmont Bank should be to the benefit of applied bank. Wilmington In the beginning examination of the contentions be said parties, that the may aspect the case which presented under the of sec. 1835 of falling prohibition The Code be eliminated h may from our- for consideration, . from the facts found
appears that the note was not attempted to be to the husband the wife. It given by was endorsed by and her, then taken the husband to the Piedmont and him delivered to the bank as to a then indebtedness of the for existing overdrafts, and it was accepted bank for that purpose.
If the endorsement the wife be view considered of an on her her attempt part property, sepa- convey rate then the for estate, must defendants, attempt fail, she could not do that without the hus- written assent of her band, that was never had. Art. the Con- is in these words: “The stitution, real personal prop- erty female any State, before acquired marriage, and all real and property, to which she after personal, may, become marriage, manner shall any entitled, be remain the sole and estate and separate of such property and shall not be liable for female, debts, obligations of her engagements devised may with bequeathed, and, the written assent con- her as she were veyed unmarried.” The Constitution as we have seen, so far as the wife’s power convey estate makes concerned, no difference between real If she personal property. undertakes either species' written assent of her *5 IN THE SUPREME COURT.
WaltoN v. In had. the brief of defendants’ counsel it husband must be a that, aside from all it would be monstrous- “But is said: law that a married with tire ver- in our woman can, doctrine assent, of an article of personal of her husband, dispose bal draft, a note or receive proceeds or endorse property on the recover such then thereof, hus- have the written consent of her that she did ground then her coverture becomes law, band. If such be the ( no law, if such be the instead of a shield. sword Certainly, found this State to sustain cases reported Gonslitulion, have as we But should be found.” none have distinctly requires in the section we quoted, seen, wife in order to enable the assent of her husband written no and certainly property, separate personal in the State cases can be found Reports reported the language that constitutional requii’eanent, That married “none be found.” brief, -should where out of a bank be able to draw her woman should money a note due to herself or to receive it is deposited, payment husband, is altogether writlen assent of her without In the first- from conveying property. different thing all that she into her estate cases, she mentioned brings in a of her personal prop- while sale of conveyance entitled to, be defrauded her husband she may without the assent of erty value or in the transaction with the in the facts connected Constitution, doubly guard and the of her property, to be writing. her husband the assent of requires Taylor us to the cases of cited defendants’ counsel Bank, 77 N. Sikes, and Kirkman N. C., 724, occurred the transaction having In case, the first-mentioned been intro- having no proof contrary Maryland, law prevailed common assumed the Court ducedj law of the common principles 'Maryland applied *6 425 TERM, N. 0.] BRISTOL. WALTON V. Bank,
tbe in of v. the facts the case. In the case Kirkman wife of on her draft drew out of the bank a sum money without, order of and after the written assent her wife, her brought death administrator of his deceased be, suit bank so to the paid the to recover the amount against the wife. The said that Court he could not recover that the wife was her bank, not “conveying” property she was her it, only that “disposing” -“receiving” property. and Kirkman
So it is seen that cases of v. Sikes the Taylor Bank, not do not of the defend the only support position ants’ it. the counsel, but are authorities against Again, the and its depos endorsement of note the plaintiff being his ited the Bank found by with Piedmont for the purposes the Honor in the view of an to be considered attempt charge answered that it was wife, estate the separate may husband and that he never gave for the benefit of the alone, As the assent to the transaction. to written agreement E, the Piedmont Walton, made between the bank, reference hypothe- the Wilmingt-on $3,000 note to the $1,250 payment cation of secure to save harmless the bank, to the latter of the husband $3,000, it appears Bank for its endorsement of Piedmont but did make writing, that that agreement wife never consent that is that the gave trouble note that did endorse the for purpose. not arrangement, Sutton, in the brief cited Bates case aspect, has no here counsel, application of defendants’ pur his consent writing for the husband there gave own separate on account the wife chase of goods for credit writing and her estate; application same. estate for the contained clause charging that counsel, is, As to defendants’ the last position a note married woman of belonging aby endorsement IN THE SUPREME COURT. BRISTOL. WALTON V. ber tbe therein to the conveys holder who has paid value for and who was fact ignorant that she was at coverture the time of we endorsement, think it can under not be maintained. The purchaser of such 'in place married woman North in her Carolina, attempt contract, in the of a to contract. Our position free person *7 Constitution and our laws will married woman permit to malee contracts without the written assent of hus- any her band, whether her coverture known not, be or those except authorized under sec. 1826 of The Code. But was no there of his Honor finding as whether either of the banks knew that the plaintiff not married woman.
For the we reasons find error given, judgment the Court below, same is
Reversed.
Ct/ARK, The Constitution of Caro- J., dissenting. North lina, Art. real and “The provides: personal prop- erty female any State, before acquired marriage, and all real to which she after personal, property, may, .and become manner marriage, shall and remain entitled, the sole estate and such separate property female, shall not be for any liable or obligations engagements debts, her be devised may and bequeathed, and, with the written assent her her as conveyed by n she unmarried.” were
To who anyone reads this as it is section, written, must be clear a married rights of woman remain property as if she were unmarried, with the that she single'exception can not without the written assent her husband. convey That is the sole restriction her her upon disposition prop- while and there is living, not even that erty restriction upon her disposition of it at death. The of married emancipation 42? TEEM, C.] v. Beistol. women as to their could not be more property rights unequiv- ocal. her Her is to remain sole and estate property as if she unmarried, she were can not property, except her assent. With that without husband’s written remain her exception, rights unimpaired To the them unchanged marriage. rights guaranteed women are as any- married entitled as Constitution, fully There is one else. no restriction jus disponendi upon unmarried,” or as'“if she were save using in the There the one recited constitutional respect guarantee. her freedom to con- imposed no whatever disability upon effect thereof
tract, prop- avoiding possible that a There is no married constitutional erty. presumption the fact of becomes less woman, intelligent, marriage, “if than were unmarried” —a less contract she competent man. in which she as free to contract as any state courts have been advanced should Two arguments why *8 of and con- the Constitution paternal supervision exercise as it does mean to married women what the strue that not and says. unmistakably unequivocally language married women can not with- is, that, The first as allow them con- the written assent of the to to out them do such would to allow tract without assent not do That is what directly. argu- indirectly they to the Constitutional which have been addressed might ment but as did not induce the was, Convention, doubtless of married women to shackle the property rights Convention of on faith and credit inhibition of their contracting should do it. the courts ownership, centuries has of frauds for more than two The statute in unless invalid of realty writing, rendered conveyances that no one has never court to hold but it occurred whereby realty liable verbal contract upon could be IN THE SUPREME COURT.
WALTOX BRISTOL. V. could be to sale, because “that would subjected to be permit done what can indirectly not be done The con- directly.” stitutional of married women emancipation should bear the same construction has been for centuries given pro- in vision A the statute frauds. requirement “writing” in one and of in case, “written consent” the other, as to “con- veyance” can not be construed so as forbid differently, in the- in “contracts” one case and not the other. objection other is that the absolute property rights “as if married woman she remained unmarried” in con- are flict with common law That is precedents. exactly why has been in provision put Constitution, is, which abe, intended to break with complete past in several other respects.
In
Shuler v.
"Wai/í-ok conclusive fact of marriage gave ti’ol her property) by or that those only of imbecility incompetency, proof whatever the married, who discretion women were lacking basis, of 1868 the dis- constitutional swept away provision them the same abilities of married women guaranteed rights if save that as unmarried,” “as remaining pi’operty there must be the written assent the hus- conveyances band. a fanciful doctrine of is late “charges equity” a for there is not line by purely judicial
creation legislation, and it in direct conflict with statute to is support of the Constitution. The the beneficent liberal provision written Code, of The oft-quoted requires only assent, more. To a nothing require “charg- husband — is to the time a married woman not back when ing” harking a her- had no over her but was chattel control only self, and when Shakespeare expressed English correctly law as to wives Petruchio by making say:
“ ; my I will what own master chattels; ; my my goods, my She is she house field, stuff, My my my household barn. horse, ass, ox, anything.” My my my my con- . woman to The Constitution does disable married her as to do so as her tract, but oortlie leaves free contrary when endorsed the sister. Tt follows that the plaintiff single anyone of commerce, in hank and it the stream placed fraud in the absence of or loaned on it who bought money it as title to is not (which charged) got good or collusion á woman or had been her, as she fully single man. n ownership prop- endi is inherent The jus dispon constitutional married woman remains erty, if she were remain hers is to that her property provision *10 430 THE IN SUPREME COURT.
WAX/TON BRISTOL. V. with the exception which unmarried, single conveyances, to word refers cases which “conveyances” are required, i. deeds leases of e., realty mortgages per realty No is sonalty. “conveyance” required pass personalty This Court has held that except by mortgage. the Legisla ture can not is a deprive jus which anyone disponendi, vested protected the United States right Constitution. Strickland, N. v. 239; 102 Bruce 81 Hughes Hodges, C., N C., 267. But it were held that the Legislature could restrict the “sole to a ownership” guaranteed married woman of The it is Code, provision to be observed: That that (1) section has though strangely been construed enough conveyances, its apply when terms it to contracts the same applies only, decisions of the husband’s written has requirement assent always been restricted to deeds .and that if mortgages; applied (2) to personalty, the husband has here' his written given assent by letter to bank. such It true Wilmington assent was subsequent endorsement the note blank but wife, the assent need not be simultaneous. Bates Sultan, N. 94.
Nor indeed is the endorsement in blank of a promissory “a contract to affect real estate” in personal purview of this action. The note is secured by mortgage, to be appears collectible. This is not an action to make with its chargeable payment (when question might but action her to arise), possession recover of the note has which she endorsed, allowed to be put col- deposit lateral, and which now so held with the written assent the husband. Nor does fact that the due past note was when endorsed cut doc- any figure plaintiff. trine sets-off case of after passed paper maturity applies pr in favor of and not between endorser maker, payee and endorsee. TEEM, C.] v. Beistol.
It that the endorsement a bill be contended hardly *11 all a for if such so, or in blank is endorse “conveyance,” note if it for of a But were a con ments are void want grantee. of assent the hus said, as the written is, there above veyance, Sultan, band. Bates v. The word “conveyance” supra. of refers to deeds of or either’ realty, mortgages
ordinarily i. a e., to cases which “conveyance” realty personalty, 113 N. such is And Kelly Fleming, required. of can the Constitution. It its meaning this'provision cow, not a sell a a mean that married woman not horse, a a without written assent of her or cash check ear-ring, husband. a
In when women this married own so share of day, large far- notes, checks, drafts and is of stocks, bonds, promissory hold that the endorsement them reachirrg consequence of when invalid, especially (as such papers case) wife is tendered as endorsed paper the written assent written instrument containing only of but his that it be so used. Commer- request cial endorsement it is put is sexless. When by proper paper of taker it before trade, maturity into currents of should it as without and not be a “courier luggage,” regard of the held to scrutinize whether endorsers inquire widows, wives or And he or were not spinsters. were he should liable sets-off takes after only maturity, favor maker. from the constitutional of of the Apart rights same as that over property being married women their which refer as to single “conveyances” women (except laiv has before the commercial never deeds and mortgages), scrutinize the sex or of commercial paper held the taker The endorsers such paper. marital condition endorse- stands on the a. married a check ment woman payee aof when payee promissory her endorsement same footing IN THE SUPREME COURT. WaltoN note, far, so tbe certainly entitling bolder to receive tbe check proceeds which is at matter note, only issue here. statute, recent the law revising nego- codifying Laws instruments, 1899, was-drawn chap. 7i33,
tiable committee of able the American Bar lawyers appointed by secure Association to the sub- legislation uniformity ject, has adopted been States. In there is by many no intimation the doctrine of married disability into, women has been the mercantile law or inval- imported idates the endorsement of a promissory a married woman. is at least a This construction. It must legislative *12 further be remembered that not even present case it is that, found holders endorsed, of this when so paper, taking knew that not the the endorser was was (who original payee), a married woman.
Even at common of a a mar law, endorsement note by ried woman valid to transfer the note (though make, her liable as if the husband was endorser) present v. if (Menkins Heringhi, Mo., 17 with his 297), made Marshall, or consent authority 594; v. 4 C. & (Prestwick P., Bullock, Stevens v. 10 v. 83 Cush., 291; Ill., Mudge 22; McClain v. 25 v. Weidemayer, Mo., 364; Nimes Bige low, 45 N. H., 343), the husband’s be may authority presumed his conduct from ratification. Prince subsequent Brunette, Bullock, v. 1 C., 435; Bing. Mudge supra; Duke, Coxlia v. Cobb Connelly, 141; Miss., Ind., It would be since the strange, liberal therefore, provisions our of a Constitution endorsement promissory married woman should now invalid title carry under the case. circumstances especially of certain notes consisting promissory tain personal property one the complaint; mentioned another paper writing on the 18th executed $1,250, the sum of of the notes being & J. M. Huffman Bristol, L. S. A. March, 1893, Huffman, order, with cer- J. V. Pearson, Blackwell, -T.H. to- Co.,and was in the sum note thereon. other tain endorsed credits L.A. C. E. A. Buffaloe and Buffaloe R. $615,executed was note hypothecated Bristol. The last-mentioned of the first-men- Bristol,with A. Blackwell, payee payee,L. other to that note. The paper- note, security tioned the assignment the complaint mentioned writing for the first-men- Buffaloe note as security transfer of the was the facts were A found waived, note. trial jury tioned follows: The substances,as were payee. his ivliich by Honor, was note, plain- of the first the father Blackwell, J. V. TERM, 1899. 0.] v. Beistol. tiff in this his action, after death the assigned I. T. executor, to her as a Avery, share of part her father’s estate. Afterwards the who was then plaintiff, a married of E. the wife S. woman, Walton, now deceased, language “wrote name finding fact, the back across thereof E. and her (the note), Walton, delivered the same to the Piedmont Bank of Mor- N. C., as collateral to an indebtedness then ganton, due and him to the said bank on of over- owing by account and the same was for this accepted bank drafts, pur- the bank E. and the said S. Walton con- thereafter pose,