Bowles v. Bowles , 237 N.C. 462 ( 1953 )

75 S.E.2d 413 (1953) 237 N.C. 462

BOWLES
v.
BOWLES.

No. 379.

Supreme Court of North Carolina.

April 8, 1953.

Land, Sowers, Avery & Ward, Statesville, for the plaintiff, appellant.

Scott, Collier & Nash, Statesville, for the defendant, appellee.

PARKER, Justice.

Separation agreements between husband and wife have not always been recognized as valid in North Carolina. Collins v. Collins, 62 N.C. 153; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261. This view has been modified from time to time. The authorities are generally agreed upon the requisites for a valid deed of separation. One essential requisite is that the "agreement of separation * * * must be reasonable, just, and fair to the wife, having due regard to the condition and circumstances of the parties at the time it was made." Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460.

"Questions relating to the construction, * * * of separation agreements between a husband and wife are governed, in general, by the rules and provisions applicable in the case of other contracts generally." 17 Am.Jur., Divorce and Separation, Sec. 732.

"The cardinal rule to be applied in determining the effect of property settlement agreements is to ascertain the intention of the parties as expressed in the agreement, and to carry out such intention as nearly as may be done without violence to the language used." 27 C.J.S., Divorce, § 301.

"The heart of a contract is the intention of the parties which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time. Jones v. Casstevens, 222 N.C. 411, 23 S.E.2d 303." Gould Morris Electric Co. v. Atlantic Fire Ins. Co., 229 N.C. 518, 50 S.E.2d 295, 297. See Wall v. Williams, 93 N.C. 327, where this Court in construing a contract for support, gave the word support a liberal construction.

Webster's New International Dictionary defines exclude as follows: "To shut out; to hinder from entrance or admission; to refuse participation, enjoyment, consideration, or inclusion to; as, to exclude the light; to exclude one nation from the ports of another; to exclude nonessentials from an argument; * * *. Keep out what is already outside."

The meaning of the word exclude has frequently been construed in connection with G.S. § 1-593. "The time within which an act is to be done, as provided by law, shall be computed by excluding the first and including the last day. If the last day is Sunday or a legal holiday, it must be excluded." In construing this statute this Court has decided in many cases that exclude means to shut out; to refuse consideration in the computation of time. Barcroft v. Roberts, 92 N.C. 249; Burgess v. Burgess, 117 N.C. 447, 23 S.E. 336; Pittsburg Lumber Co. v. Rowe, 151 N.C. 130, 65 S.E. 750; Adcock v. Town of Fuquay Springs, 194 N.C. 423, 140 S.E. 24; Pettit v. Wood-Owen Trailer Co., 214 N.C. 335, 199 S.E. 279.

In Pittsburg Lumber Co. v. Rowe, supra [151 N.C. 130, 65 S.E. 751], the court says: "The court adjourned for the term June 5, 1908. Under the consent order plaintiff was required to serve his case within 30 days. Excluding the 5th, plaintiff was required to serve his case on July 5th. That day being Sunday, service on the 6th is legal."

The agreed case states that the defendant with the consent of the plaintiff, through a real estate agent, has rented the house for $75 a month. It is a fact known to all that rental agents charge commissions to collect rent for the owners of property. The $75 a month paid to the rental agent is gross rent; when he deducts his commission, and pays over the rest of the rent collected to the defendant, it is net rent. Giving the word exclude its ordinary and usual meaning it is clear that the defendant cannot deduct or take out from the net rent the cost of major repairs and upkeep, property taxes and payments on insurance against loss by fire, but must pay over the net rent received by his to his wife without any such deductions, and we so hold. The defendant had separated from his wife; had given her custody of their three minor children; had made a property settlement with his wife; had provided for the support and advanced education of his children and had conveyed to his children his home place, with a provision that his wife should live there during her life. While his wife with her children lived at this home, the defendant bound himself by the deed of separation to pay on it the property taxes, to keep it adequately insured against loss by fire, and to make such reasonable and necessary repairs as may be required to keep it in good order, ordinary wear and tear excepted. All through the deed of separation runs the clear intent of the defendant to provide support for his minor children, to give them an advanced education, and to provide for them and his wife during her life, whether subsequently divorced or not, a home in Statesville; or if his wife with her children lives elsewhere the net rent of the Statesville home without any deduction from the net rent of the cost of major repairs and upkeep, property taxes and payments on fire insurance, so that his wife might pay the rent on a home elsewhere. His wife has moved to Lexington to be nearer to the Baptist Hospital in Winston-Salem, where the defendant's son is receiving treatment. To hold that the defendant can take from the net rent received by him from the real estate agent the cost of major repairs and upkeep, property taxes and payments on fire insurance on said home place would do violence to the word exclude used in the deed of separation, and construing the deed of separation as a whole would not effectuate the clear intent of the parties.

The plaintiff's assignments of errors to the court's conclusion of law, and the signing of the judgment are upheld, and the court's conclusion of law and the judgment below are reversed.

Reversed.