Bolin v. Bolin

99 S.E.2d 920 (1957) 246 N.C. 666

Nelle Walker BOLIN
v.
Dr. Paul BOLIN.

No. 161.

Supreme Court of North Carolina.

October 9, 1957.

Seavy A. Carroll, Lemuel M. Williford, Fayetteville, for plaintiff.

Grady Mercer, Kenansville, for defendant.

DENNY, Justice.

The sole question posed on this appeal is whether or not the court below was correct in sustaining the demurrer interposed by the defendant.

The plaintiff contends that since the defendant, under the terms of the separation agreement, agreed to pay her the sum of $200 per month, in full satisfaction of his obligation for her support and maintenance, during the remainder of her natural life, without requiring her to release her dower or any other interest in his real or personal property, the agreement is enforceable, irrespective of the manner of its execution.

We have universally required separation agreements to be executed in conformity with statutory requirements governing contracts between husband and wife. Rev. 2107; C.S. 2515; N.C. Code of 1939, section 2515, now G.S. § 52-12. This requirement is logical and sound in view of the fact that the right of a married woman to support and maintenance is held in this jurisdiction to be a property right. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261; Walton v. Walton, 178 N.C. 73, 100 S.E. 176; Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460; Daughtry v. Daughtry, 225 N.C. 358, 34 S.E.2d 435.

In the last cited case the appellant likewise insisted that the agreement was not such a contract between the husband and the wife as to require the separate examination of the wife, and a finding by the probate officer examining the wife that it was not unreasonable or injurious to her, as required by G.S. § 52-12, since the agreement did not purport to divest the wife of dower or the husband of curtesy in any real property owned by them or that might be acquired thereafter. It was pointed out by this Court that the provision for support brought the agreement within that class of contracts which in order to be valid and binding on the parties must be executed in the manner and form required by G.S. § 52-12.

In view of our decisions in this respect, it is not necessary to consider whether or not the officer of the United States Army was vested with authority to take such acknowledgments.

Furthermore, this Court has uniformly held that a contract between husband and wife, which must be executed in the manner and form required by G.S. § 52-12, is void ab initio if the statutory requirements are not observed. Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636; Id., 226 N.C. 307, 37 S.E.2d 904; Daughtry v. Daughtry, supra; Fisher v. Fisher, 217 N.C. 70, 6 S.E.2d 812, Id., 218 N.C. 42, 9 S.E.2d 493; Farmers' Bank of Clayton v. McCullers, 201 N.C. 440, 160 S.E. 494; Garner v. Horner, 191 N.C. 539, 132 S.E. 290; Barbee v. Bumpass, 191 N.C. 521, 132 S.E. 275; Whitten v. Peace, 188 N.C. 298, 124 S.E. 571; Davis v. Bass, 188 N.C. 200, 124 S.E. 566; Wallin v. Rice, 170 N.C. 417, 87 S.E. 239; Butler v. Butler, 169 N.C. 584, 86 S.E. 507; Singleton v. Cherry, 168 N.C. 402, 84 S.E. 698.

It is further contended by the appellant that since the defendant complied with the agreement from June 1952 until February 1955, he should be estopped from attacking it, citing Howland v. Stitzer, 236 N.C. 230, 72 S.E.2d 583. The contract involved in the Stitzer case was not void; therefore, the ruling there is not controlling on the facts in this case. A void contract will not work as an estoppel. Daughtry v. Daughtry, supra; Fisher v. Fisher, supra, 218 N.C. 42, 9 S.E.2d 493; Wallin v. Rice, supra. Furthermore, if the doctrine of estoppel were available to the plaintiff, she has not pleaded it. Upton & Co. v. Ferebee, 178 N.C. 194, 100 S.E. 310; 19 Am.Jur., Estoppel, section 179, page 832 et seq.; Annotation, 120 A.L.R. 28.

The ruling of the court below is

Affirmed.