41 S.E. 533 | N.C. | 1902
Lead Opinion
after stating the case. Tbe attempt to file notice of a lien by Zachary & Zachary against the property c-f the feme defendant must fail of its purpose. Only Robinson, the original contractor, could file the notice of lien, and then only after he had completed the work and completed his contract, and within the time provided by law. But he abandoned his contract, and therefore himself could file no- lien. The. acceptance by the defendants of the draft drawn by Zachary & Zachary is as follows:
'•$84.98. Mouht Olive, N. 0., Nov. 16, 1898.
"Mr. D. Perry and wife K. D. Perry will please pay to Zachary & Zachary the sum of eighty-four and ninety-eight one-hundredth dollars, and charge the same to my account as a payment on the contract price for building a dwelling-house about two miles north of the town of Mount Olive, N. C.”
Probate of the paper and acceptance was had as to both, and the private examination of the feme defendant was taken. The paper (draft) contains no express charge upon the land mentioned in it, nor can it be considered as a lien by way of mortgage, and is therefore not effectual to bind the real estate of the feme defendant. Farthing v. Shields, 106 N. C., 289 ; Loan Association v. Black, 119 N. C., 323.
Affirmed.
Dissenting Opinion
dissenting.
The feme defendant contracted for the erection of a building on her land, in writing, with written assent of her husband and privy examination duly taken. Subsequently, she accepted an order drawn by the contractor upon her, the acceptance being in writing, with written assent of her husband and privy examination. If this constitutes a valid, binding obligation upon the feme covert for the betterments on her land, then a mechanic’s lien can be. filed to secure it. If, with all these formalities, a mar-
It is true we are referred to Flaum v. Wallace, 103 N. C., 296, for the doctrine that there must be a “charge in equity” (whatever that may be) on the feme covert’s land, but with the utmost and most diligent research, both bench and bar have been unable to discover any statute or previous decision which requires such “charge,” and this Court has distinctly repudiated that doctrine. Brinkley v. Ballance, 126 N. C., at page 396.
The statute enacted by the proper law-making authority, Code, Sec. 1826, provides that a married woman can make a contract affecting? her real estate “with the written assent of her husband.” The plaintiff certainly ought to have the benefit of the law of the land. Several recent statutes show that such is still the mind of the law-making power, such as the statute allowing the statutes of limitations to run against a married woman, allowing her to vote her stock in corporations, and the recent act providing that a married woman is liable for improvements put upon her property, even when she makes no contract, but merely stands by and sees the work done without exception. Independent of the statute, the Constitution gives a married woman the same control over her property “as if she remains single,” and responsibility always goes with the power to- control.
Lead Opinion
CLARK, J., dissenting. The attempt to file (291) notice of a lien by Zachary Zachary against the property of thefeme defendant must fail of its purpose. Only Robinson, the original contractor, could file the notice of lien, and then only after he had completed the work and completed his contract, and within the time provided by law. But he abandoned his contract, and therefore himself could file no lien. The acceptance by the defendants of the draft drawn by Zachary Zachary is as follows:
$84.98. MOUNT OLIVE, N.C. 16 November, 1898.
Mr. D. Perry and wife, K. D. Perry, will please pay to Zachary Zachary the sum of $84.98, and charge the same to my account as a payment on the contract price for building a dwelling-house about two miles north of the town of Mount Olive, N.C.
Probate of the paper and acceptance was had as to both, and the private examination of the feme defendant was taken. The paper (draft) contains no express charge upon the land mentioned in it, nor can it be considered as a lien by way of mortgage, and is therefore not effectual to bind the real estate of the feme defendant. Farthing v. Shields,
Affirmed.
