Mayo v. . Farrar , 112 N.C. 66 ( 1893 )

The Court said (Ruffin, J., delivering the opinion), inHardy v. Holly, 84 N.C. 661: "We must take it to be the settled law of this State, at least, that a married woman, as to her separate property, is to be deemed a feme sole only to the extent of the power expressly given in the deed of settlement. Her power of disposition is not absolute, but limited to the mode and manner pointed to in the (69) instrument, and when that is silent she is powerless." True, thefeme plaintiff reserved "full power to convey by deed or will — by will, as if she were a feme sole; by deed, in which her husband and trustee must unite." The mode of conveyance pointed out in explicit terms is by deed, in which husband, wife and trustee "must" all join; and as it is obvious that the restrictions upon her power have been disregarded by the attempt to convey without the joinder of the trustee, we must either hold the mortgage inoperative as a conveyance of her separate land, or overruleHardy's case, supra. In that case the feme sole reserved the power to remove the trustee and appoint another, and to direct the trustee, in writing, as to all sales of her property or reinvestments of the fund arising from such sales, yet a mortgage deed made by her and her husband, the trustee failing to unite with them, was declared void and a sale under it enjoined, as in this case in the court below, and the decree was upon appeal affirmed in this Court.

Where a feme covert derives title in any manner other than under the limitation of a deed of settlement, she can alien her estate in land only by joinder of her husband in the conveyance, with privy examination in conformity to the statute. Clayton v. Rose, 87 N.C. 106; Thurber v.LaRoque, 105 N.C. 301; Farthing v. Shields, 106 N.C. 289. When she acts under such settlement, she is not only subject to its express restrictions as to the manner of exercising such power as is granted to her, but she is dependent upon a strict construction of its terms for authority to make any disposition whatever of the property embraced in it. Kemp v. Kemp, 85 N.C. 491; Hardy v. Holly, supra. This Court is classified by a prominent text writer as one of those that (70) "regard the wife's power over her separate estate as resulting not from the existence of the equitable separate estate itself, but from the permissive provisions of the instrument creating such estate." 3 Pom. Eq. Jur., sec. 1105; ib., p. 30, note 1.

As we understand the statement of the case, though the averments of the answer were admitted to be true, the defendants did not move the court at the hearing for judgment against J. M. Mayo, the husband, on the notes admitted to have been executed by him, but, after resisting the prayer of plaintiffs for injunction, demanded a judgment against husband and wife, charging the lands described in the mortgage with the payment, or for the possession of said land with perception of profits in satisfaction of the debt. They could not, after judgment, assign as error the refusal of a judgment for which they did not ask. When they failed to move the court for judgment against J. M. Mayo, the judge was warranted in assuming that defendants did not, for reasons satisfactory to themselves, desire any relief in addition to that specifically mentioned. It would be unjust to the court below, and impose costs wrongfully upon plaintiffs, should we direct the judgment to be so modified as to permit a recovery against the husband, when his Honor would doubtless have so ordered upon a bare suggestion at the hearing before him. The judgment is

AFFIRMED.

Cited: Monroe v. Trenholm, post, 640; Broughton v. Lane, 113 N.C. 18,19; Kirby v. Boyette, 116 N.C. 167; S. c., 118 N.C. 254, 256; Cameronv. Hicks, 141 N.C. 28.

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