Ferguson v. . Kinsland , 93 N.C. 337 ( 1885 )

The Code of Civil Procedure (339) provides that every conveyance, power of attorney or other instrument affecting the estate, right or title of any married woman in lands, tenements or hereditaments, must be jointly executed by such marriedwoman with her husband, and due proof or acknowledgement thereof must be made as to the husband, etc. Sec. 429, par. 6.

The same words are contained in the amendatory Act of 1869, ch. 279, sec. 429, followed by a clause extending the jurisdiction, before only exercised by the probate judge of the county wherein the real estate is situated, to the same officer in every county. Substantially the same provisions will be found in the Revised Statutes, ch. 37, sec. 9, and in the Revised Code, ch. 37, sec. 8, all of which, in positive terms, require the joint execution of the deed by the husband and wife in order to transfer her estate in land.

The only point made by the appellant's counsel is that the Constitution, Art. 10, sec. 6, which secures to a married woman all the property acquired previous to and since her marriage as her sole and separate estate, free from her husband's debts, and confers upon her power to devise and bequeath, and, with her husband's written consent, to convey it as if she were unmarried, sanctions this mode. But it is for the General Assembly to provide the method by which this right may be exercised, as it has done heretofore when her real estate was not less her own, and when she was permitted to convey it only by observing a prescribed form. The requirement that the husband should execute the same deed with his wife was to afford her his protection against the wiles and insidious arts of others, while her separate and private examination was to secure her against coercion and undue influence from him. These have been deemed prudent safeguards to insure freedom of volition and action on her part when she is disposing of her real property, and these are none the less necessary now, when she retains her full real and personal estate. The statute in force when the deed was made comprehends her sole and separate estate in land, retained (340) under the Constitution, as well as that she held before, after entering into the marriage relation. It no more abridges her rights of property and is but a legislative direction as to the manner in which it may be exercised. The consent necessary under the Constitution must be given in the manner provided by law, and whether by the husband's writing in the deed or by a separate writing as attempted here, it equally restricts her capacity of disposal, and is alike exposed to the imputation of being in conflict with the Constitution.

While this legal experiment of departing from established forms and introducing new methods of alienation for femes covert, fails of its intended object, the manner of probate is not less at variance with the law. The execution by the husband is an indispensable preliminary to the private examination, more especially when this is taken under a commission. Without further citations, we refer to a recent case for an authoritative declaration of the law, McGlennery v. Miller, 90 N.C. 215.

This was not done, perhaps could not be done, when the instruments are separate and disconnected. The feme's deed was registered in 1876, the husband's written assent in 1885, nine years later.

We concur in the ruling that the deed was legally inoperative upon the estate of said Laura L., and the plaintiffs acquired no title to it thereby.

There is no error. Judgment affirmed.

No error. Affirmed.

Cited: Southerland v. Hunter, ante, 311; Lineberger v. Tidwell,104 N.C. 511; Strouse v. Cohen, 113 N.C. 353; Barrett v. Barrett, 120 N.C. 129; Green v. Bennett, ibid., 396; Slocomb v. Ray, 123 N.C. 573,576; Jennings v. Hinton, 126 N.C. 57; Bryan v. Eason, 147 N.C. 291;Council v. Pridgen, 153 N.C. 446; Jackson v. Beard, 162 N.C. 107;Warren v. Dail, 170 N.C. 409; Graves v. Johnson, 172 N.C. 178; Thomasv. Sanderlin, 173 N.C. 334; Stallings v. Walker, 176 N.C. 324.

(341)