Long v. . Barnes

The first exception taken by the defendants' counsel was to the refusal of his Honor to charge the jury, "that the legislature had no power to make parties man and wife without their free consent, and unless they gave their consent to the same in the manner pointed out by the statute, the statute is a nullity."

The ruling of his Honor upon this instruction as asked was not erroneous. The first branch of the instruction is answered by the fact that Thomas Barnes and Ailsy Barnes continued to live together for several years after the passage of the act of 1866, as man and wife, recognizing each other and recognized by others as standing in that relation to each other. This was certainly conclusive evidence of afree consent, and meets the constitutional objection. And the latter branch of the instruction has been settled by the decisions of this court in the cases of State v. Adams, 65 N.C. 537, and State v. Whitford,86 N.C. 636, where it was held that a record of the acknowledgment of cohabitation was not essential to the consummation of marriage, and a marriage constituted by the operation of the act could not be avoided by a failure to have the acknowledgment entered of record; and that the purpose of the legislature in requiring the (333) record to be made, was only to perpetuate the evidence of the marriage, for the benefit of the issue of such marriage.

The next instruction asked — that conceding the marriage of Thomas and Ailsy to be valid without a record of their cohabitation, the constitution had the effect to take from an estate granted to husband and wife, the right of survivorship, was properly refused. The section of the constitution referred to reads: "The real and personal property of any female in this state, acquired before marriage, and all property real and personal to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised or bequeathed, and with the written consent of her husband conveyed by her as if she were unmarried." Const. Art. X, Sec. 6.

We do not believe it was the intention of the framers of the constitution by adopting this provision in that instrument, to effect such a radical change in the construction of deeds and wills as that contended for by the defendants' counsel. We are of the opinion its sole purpose was to restrict the marital rights of husbands in the property of their wives, by investing all the real and personal property married women may acquire in their own right, with the attributes of "separate estate," but never had in contemplation to change the established rules of construction, or destroy or change the properties and incidents belonging to estates, or to give to married women any greater estates than are conveyed to them by the terms of the instruments under which they derive title.

Thomas and Ailsy then being husband and wife, the deed executed by John Barnes to them dated January 13th, 1869, vested in them a joint estate, not in joint-tenancy, for they were neither properly joint-tenants, nor tenants in common, for being considered as (334) one person in law they could not take the estate by moieties, but took it by entireties — per tout, et non per my — and consequently when Ailsy died the whole estate remained to Thos. Barnes the survivor. 2 Blackstone, 182; Motley v. Whitemore, 19 N.C. 537; Todd v.Zachary, 45 N.C. 286.

The exception to his Honor's charge is not sustainable. His instructions to the jury were substantially correct as applied to the facts of the case and are supported by the decision in Whitford's case supra, and the authorities there cited.

There is no error. The judgment of the superior court is therefore affirmed.

No error. Affirmed.

Cited: Baity v. Cranfill, 91 N.C. 298; Simonton v. Cornelius,98 N.C. 436; Branch v. Walker, 102 N.C. 37; Jones v. Hoggard,108 N.C. 180; Harrison v. Ray, 108 N.C. 216; Bruce v. Nicholson,109 N.C. 204; Phillips v. Hodges, 109 N.C. 250; S. v. Melton,120 N.C. 595; Stamper v. Stamper, 121 N.C. 254; Ray v. Long,132 N.C. 896; Bettis v. Avery, 140 N.C. 186; West v. R. R.,140 N.C. 621; Bynum v. Wicker, 141 N.C. 96; Jones v. Smith,149 N.C. 320; Isley v. Sellars, 153 N.C. 378; Forbes v. Burgess,158 N.C. 132; Greenville v. Gornto, 161 N.C. 343; Freeman v. Belfer,173 N.C. 582, 584; Croom v. Whitehead, 174 N.C. 309; Dorsey v. Kirkland,177 N.C. 523; Moore v. Trust Co., 178 N.C. 123, 124, 125; Odum v. Russell,179 N.C. 7; Bowman v. Howard, 182 N.C. 665; Turlington v. Lucas,186 N.C. 285; Davis v. Bass, 188 N.C. 203; Johnson v. Leavitt,188 N.C. 683; Winchester-Simmons Co. v. Cutler, 199 N.C. 712; Bankv. Hall, 201 N.C. 789; Willis v. Willis, 203 N.C. 520.