Bank v. . Benbow , 150 N.C. 781 ( 1909 )

CLARK, C. J., dissenting, arguendo. These issues were submitted:

1. "Is the feme defendant indebted to the plaintiff? And if so, in what sum?" Answer: "Yes; indebted $163.20, with interest from maturity."

2. "Were the acceptances sued on signed by the feme defendant by the written consent of her husband?" Answer: "Yes."

3. "Did the feme defendant own a separate personal estate at the time the acceptances were signed and suit brought? And if so, how much?" Answer: "Yes; from six hundred to eight hundred dollars."

4. "Did the feme defendant own a separate personal estate at the time of the trial And if so, how much?" Answer: "Yes; $13,000."

His Honor rendered judgment against the feme defendant, Mrs. Benbow, upon the issues as found, directing that it be collected out of her personal estate only. The said defendant duly excepted and appealed. The feme defendant was the owner of and conducting a store in the town of Wilkesboro. Through her husband she purchased certain jewelry from Bixler Co., and, in payment therefor, executed six promissory notes, signed by herself alone, but with the written consent of her husband, which was found by the jury to have been given in certain letters appearing in the record. These notes or acceptances were assigned to the plaintiff for value and before maturity.

The complaint declares upon the notes, and asks for a judgment against the feme defendant only. The male defendant is a nominal party, no relief being asked against him.

The form of all the notes is the same, to wit:

"CLEVELAND, Ohio, 19 June, 1903.

"Two months after date pay to the order of M. F. Bixler Co., limited, the sum of thirty-two dollars, without interest, at their office in Cleveland, Ohio.

(Mrs.) L. S. BENBOW."

Appropriate prayers for instruction and exceptions present for (783) our consideration the liability of the feme defendant upon the contract as herein set out.

There is no specific charge upon her personal estate contained in the evidence of debt, or any other paper-writing executed in connection therewith, and there is nothing in the writing from which an intent to charge her separate estate may be implied.

That being so, we think the ruling of the court below contravenes the principles of law governing the executory contracts of married women as enunciated in numerous decisions of the Court since 1875, when the subject was first considered, in Harris v. Jenkins, 72 N.C. 183, and Pippen v.Wesson, 74 N.C. 437. From the adjudged cases covering a period of thirty years this rule of law may be deduced. In order that a married woman may make an executory contract enforcible against her personal estate it must be done with the written assent of her husband, and the contract must expressly or by clear intendment and implication create a specific charge against her personal estate. In order that she may bind her real property, the feme covert must execute either a formal conveyance or some paper-writing which in equity may be charged upon her separate estate, accompanied by the written assent of her husband and her privy examination. An example of the latter is to be found in Ball v. Paquin, 140 N.C. 85.

In the Pippen case this Court held that neither the Constitution nor statute law of the State conferred upon a married woman any power to enter into an executory contract except in the specific instances mentioned in the statute, now section 2094 of the Revisal. Since that case, in a long unbroken line of decisions, this Court has held that a married woman is incapable of making a contract of any sort, and that her attempted contracts, unless such as are authorized by the statute, are void. These decisions have been repeated and reaffirmed so often by this Court that in Ball v. Paquin, supra, they are regarded by Mr.Justice Connor as "controlling decisions," who refers to them in these words: "In the absence of controlling decisions to the contrary, we should unanimously hold that she could make all manner of contracts with the written assent of her husband, and that for a (784) breach of them her property was liable as if she were a femesole."

This subject has been so much discussed in decisions of this Court that to review them again is unnecessary and unprofitable. Both sides of the controversy are presented fully in the opinion of the Court by Mr. JusticeWalker and in the dissenting opinion of the Chief Justice in Harvey v.Johnson, 133 N.C. 353.

There is no pretense of any express or implied charge in the contract sued on upon the personal estate of the feme defendant which can be enforced by a court of equity. Because the jury have found that the feme defendant owns a separate personal estate affords no ground for charging it with the performance of such contract.

Our laws provide in what manner married women may become free traders, so that their contracts may be enforced as readily as if they were unmarried. Their status is easily ascertained by reference to the register of deeds by those who deal with them in business. If they neglect to obtain such information, it is the loser's fault.

His Honor erred in declining to give the defendant's prayer for instruction. As there was no motion to nonsuit, there must be a

New trial.