Jackson v. . Beard , 162 N.C. 105 ( 1913 )

CLARK, C. J., dissenting; BROWN, J., concurring in the dissenting opinion. Our statute, Revisal, sec. 952, provides that: "Every conveyance, power of attorney, or other instrument affecting the estate, right, or title of any married woman in lands, tenements, hereditaments, must be executed by such married woman and her husband, and due proof or acknowledgment thereof must be made as to the husband and due acknowledgement thereof must be made by the wife, and her private examination touching her voluntary assent to such instrument shall be taken separate and apart from her husband, and such acknowledgment or proof as to the execution by the husband, and such acknowledgment by the wife and her private examination shall (107) be taken and certified as provided by law." This section has been repeatedly held a constitutional and valid enactment, and authority with us is equally decisive that unless the formalities established by this statute are complied with, the deed of a married woman is absolutely void. Council v. Pridgen, 153 N.C. 443; Bank v. Benbow,150 N.C. 781; Ball v. Paquin, 140 N.C. 83; Smith v. Bruton, 137 N.C. 79;Ferguson v. Kinsland, 93 N.C. 337; Southerland v. Hunter,93 N.C. 310.

In Council v. Pridgen, the accepted doctrine on this subject is stated as follows: "Article X, sec. 6, of our Constitution, requiring that a married woman conveying her separate real estate shall have the ``written assent of her husband,' the statute law, now embodied in Revisal, sec. 952, provides the manner in which the assent of the husband must be obtained, to wit, that the deed ``must be executed by such married woman and her husband and due proof or acknowledgment thereof must be made by the wife and her privy examination taken,' etc.; and thus construed, the statutes are constitutional and valid.

"In order to convey a married woman's separate real estate or fix a charge upon it, her privy examination is required, and the husband must join in the deed.

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"A deed executed by a married woman to her separate real property, the name of the husband not appearing in the body of the deed or his signature thereto, proved on oath of a subscribing witness and registered on such probate, without her privy examination, is inoperative, and the written assent of her husband indorsed on the deed does not meet with the constitutional and statutory requirements necessary for her to make a valid conveyance."

It will be noted that the essential requirements to a valid deed by the feme covert are that her husband must join in the execution of the deed, and the privy examination of the wife must be taken, and this act of the husband being contractual in its nature both by the express terms of our statutory law and in its operative effect, we are of (108) opinion that it is subject to the general principle prevailing here and elsewhere, that the deeds and contracts of an infant, except for necessaries, etc., may be avoided by him in a reasonable time after coming of age. Weeks v. Wilkins, 134 N.C. 516; McCarty v. WoodstockIron Co., 92 Ala. 463; s. c., 12 L.R.A., 138; Miles v. Lingerman,24 Ind. 385; 22 Cyc., p. 546. The purpose of our statute in making these requirements as to the deeds of femes covert is stated by ChiefJustice Smith in Ferguson v. Kinsland, supra, as follows: "The requirement that the husband should execute the same deed with the 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." And Connor, J., inBall v. Paquin, supra, says: "For the purpose of throwing around her the protection of her husband's counsel and advice, the Legislature declared that with certain exceptions she could not contract without the written consent of her husband."

The basic reason for permitting infants to avoid these deeds and contracts is that until they are 21 they are not supposed to have the mental capacity to make them, and if the reasons for such enactment be correctly stated by these eminent jurists, the principle should apply, we think, when in order to its validity the husband is required to join in the execution of the deed for his wife's property. If the husband were shown to be a lunatic, and this fact were known to the purchaser, it would hardly be contended that his assent to his wife's deed would stand; and the same reason for avoiding the deed in the one case appears in the other, to wit, the mental incapacity to make a deed. The question has been directly presented to the Supreme Court of Tennessee in Barker v. Wilson, 51 Tenn. 268, and it was there held: "That a bargain and sale made by an infant husband jointly with a wife of full age, of the real estate of the wife, is voidable at the election of the husband"; and in Craig v. Van Bebber, 100 Mo., 584, the Court, treating of a similar question, said: "Now, it is true that in the cases cited the deeds were worthless from the beginning, whilst here the deed is voidable only; but we do not see that this makes any difference. When the deed is disaffirmed because of the minority of the wife, (109) it becomes worthless as to the husband. As said in the case last cited, the title can only be transferred by an indivisible integer, or not at all. So, too, if the deed be avoided as to the wife, it is avoided as to the husband. It must stand or fall as a whole."

And our own Court is not without expression on the subject. The same article of our Constitution which (in section 6) enables a married woman to convey her property with the written assent of her husband, in section 8 provides that no deed by the owner of a homestead shall be valid without the "voluntary signature and assent of the wife, signified on her private examination, according to law." There is nothing here said as to whether the wife shall be over or under 21 years old, and in Ritch v. Oates, 122 N.C. at page 633, in discussing the validity of a deed by the husband and his wife, who had joined in the deed, being privily examined and was under age at the time of its execution, the present Chief Justice said: "She, being under age, her assent, though given with privy examination, is invalid, but the interest of the husband, a mere right to call for the title, was not such an interest as to require her legal assent to the conveyance to bar the husband's assertion of a homestead therein." As the excerpt shows, the case was decided on other grounds, to wit, that the husband's interest did not amount to a homestead; but the view of the learned judge as to the validity of a deed, under section 8 of the Constitution, by an infant wife, seems to be in full accord with the Tennessee decision. On reason and authority, therefore, we are of opinion that it was open to the husband to disaffirm his consent on arrival at full age, and that, having done so, the deed must be held void as not conforming to our statute on the subject.

It is earnestly urged that the act of the husband in consenting to his wife's deed has no operative or contractual effect, as he has no longer any interest in his wife's land; but this, we think, cannot be maintained. It is true that under the terms of our Constitution we have held that a wife may devise her land and thus defeat any and all interest of the husband therein (Tiddy v. Graves, 126 N.C. 620); but unless this has been done, the estate and interest of her husband, as tenant (110) by curtesy after issue born alive, is still regarded as existent under our law, recognized both in our statutes and decisions as a valuable interest. In Revisal, sec. 1730, "where the interest of one who has entered land dies the estate is recognized." It may be lost by decree of divorce in certain cases. Revisal, 2109-2111. By virtue of such estate he is regarded as a freeholder. Thompson v. Wiggins,109 N.C. 508.

In McGluminy v. Miller, 90 N.C. 215, it was held: "That a husband, tenant by curtesy, has an interest in his wife's land and is a necessary party to a suit concerning it, and if he refuses to become a coplaintiff in an action by the wife to assert her right to the property, he must be made defendant." Pell's Revisal and note to section 2102.

In Tiddy v. Graves, supra, there are some expressions in the opinion which seem to favor defendant's position, but the decision properly rests upon the express provision of the Constitution that the wife may devise her lands, and on the question presented here the expressions referred to may not be allowed to reverse the entire current of authority to the effect that a tenancy by the curtesy initiate must still be considered as existent interest. As to section 2108 of the Revisal, a provision much relied upon by defendant, it clearly refers throughout to contracts between the husband and the wife, and does not and was not intended to affect the contracts between the husband and the wife and third parties. These, as we have seen, are chiefly controlled by section 952 of the law as heretofore cited.

We have not referred to the fact that the first grantee, a brother of the feme covert, had conveyed the property to another brother. It does not appear whether the second grantee did or did not have notice, but this does not seem to affect the application of the principle that an infant may avoid his deed within a reasonable time after coming of age. 22 Cyc., p. 551.

For the reasons stated, we hold there was error in the proceedings below which entitles plaintiff to a

New trial.