CLARK, J., dissents, arguendo
The defendant Nancy Arnold, while she was the wife of Joseph Tyre, executed, together with him, the note upon which suit was brought before a justice of the peace and which
constitutes the basis of this action. It purports neither to charge her separate estate nor to be for her benefit; and if it had, the court of a justice of the peace would have had no jurisdiction in the matter.Dougherty v. Sprinkle, 88 N.C. 300. The note as an executory contract had no validity. In Farthing v. Shields, 106 N.C. p. 289, this Court said, Justice Shepherd delivering the opinion, "It is well settled by the uniform decisions of this Court that, except in the cases mentioned in The Code, sections 1828, 1831, 1832, 1836, a feme covert
is, at law, incapable of making any executory contract whatever. Accordingly it has been determined that The Code, section (711) 1826, requiring the written consent of the husband in order to affect her real or personal estate, did not confer upon her (even when such written consent was given, or when the liability was for her personal expenses, etc.) the power to make a legal contract. Its object was to require the written consent of her husband, in order to charge in equity her statutory separate estate on the same principle which requires the consent of the trustee when the separate estate is created by deed of settlement. Pippen v. Wesson, 74 N.C. 437; Flaum v. Wallace,103 N.C. 296."
Vick v. Pope, 81 N.C. 22, and Neville v. Pope, 95 N.C. 346, have no bearing on this case. In both of them the femes covert made no defence to the actions and allowed judgment to go against them by default. They became bound by the judgments.
The attempt of the plaintiff to hold the defendant liable on a new promise cannot be successful. His testimony and that of Goodman on this point was not sufficient to go to the jury; and if the promise had been proved it would be nudum pactum for the reason that there was no present consideration for the promise, and the consideration of the note was not for the benefit of her sole and separate estate.
There is no error in the ruling of the court below and the judgment is
Affirmed.