Ball v. Paquin.

Connor, J.,

after stating the facts: The demurrer is general in that it does not specify wherein the complaint fails, to state facts sufficient to constitute-a cause of action. This, under The Code practice, is not allowable. His Honor could have overruled it for that cause. Elam v. Barnes, 110 N. C., 73. We assume, however, that the real ground of the demurrer was that the feme defendant was a married woman. Baker v. Garris, 108 N. C., 218.

The difficulty encountered by the defendant is that it does not appear, on the face of the complaint, that she was a married woman at the date of the contract or the commencement of the action. The pleaders appear to have carefully avoided this allegation. His Honor properly overruled the demurrer.

The feme defendant does not plead her coverture, nor does it appear by the answer that she is covert, except that the male defendant informs the court that nothing can be made out of him because he has no interest in the dwelling house and lot, save as the husband of the feme defendant. He says; however, that be alone contracted for the work on the house which the written contract declares was being erected, “by the said Hannah B. Paquin.” How all of this is we do not know, except as the jury have found.

The plaintiffs put the contract of October 15 in evidence by which it appears that they bad theretofore furnished some material and done some work for the defendants on thé dwelling on the lot of the feme defendant “in the city of Asheville, on Haywood street, known as the ‘Coffin Lot,’ ” being erected by the said Hannah B. Paquin. The terms upon which the balance of the work is to be done and material furnished are set forth, and the defendants promise to pay promptly the amount due on the contract. It is signed by the defendants,' acknowledged by them, and the private examination of the feme defendant taken and certified by a notary public in the manner and form prescribed for executing deeds of conveyance of real estate. The jury have found that there is due the plaintiff for material furnished and work done on the dwelling, since the execution of the contract, the sum of $1,337. In this court the plaintiffs were permitted to amend the complaint to correspond with the proof.

The defendants contend that they may have, use and enjoy the labor and material furnished, by which the dwelling is supplied “with lavatories, hot and cold baths, and pay nothing for it; that the right to do all of this is secured to them by the Constitution and laws of this State, because the property is the separate estate of the feme defendant. If this contention is correct, it would seem that our Constitution and laws are sadly in need of radical amendment.

The appeal renders it necessary to examine the statutory law and decisions of this court relied upon to sustain the defendant’s exception to the judgment. It would serve no good purpose to review the numerous cases which have been before this court, in which creditors have endeavored to collect debts from married women. The construction of the Constitution and laws has received the most anxious and careful consideration of the judges who have sat upon this bench. We find that the same effort has been made in England and in many of the States of the Union to break away from the common law conception of the status of married women, in regard to their property rights and contractual capacity. An interesting history of the course of parliamentary and judicial thought and action on the subject is given by Professor Dicey in “Law and Opinion in England,” 869; Pomeroy’s Eq., section 1098, et seq. (3 Ed.), Mr. Bishop, volume 1, section 847, says: “That since the confusion of tongues in the Tower of Babel, there has been nothing more noteworthy in the same line than the discordant and ever shifting utterances of the judicial mind on the subject.” Flaum v. Wallace, 103 N. C., 306. It is but natural and not to be regretted that under our system of jurisprudence, in which, by the operation of three agencies, legal fiction, equity and legislation, the law is brought into harmony with society (Maine Anc. Law), the movement is slow and at times unsatisfactory. In no court in this country was the common law conception of the marital relation, with all of its incidents, more clearly and tenaciously retained than in ours. Prior to 1848 we find no statute interfering with or limiting the common law right and power of the husband over his wife’s property. In respect to dower, the law was so changed that the husband could sell his land without her consent and deprive her of “her third.” This was changed by the Act of 1866-’67 and dower as at common law restored.

It is therefore not unnatural that when, by the Constitution of 1868, an entirely new theory was adopted by which it is declared that “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 estate and property of such female,” etc. (Const., Art. X, sec. 6), the court should have moved with caution in giving it operation.

It would seem that this language carries with it, as an essential attribute of ownership of the wife, the power to deal with and make contracts in regard to such property, except as expressly restricted by the same instrument, as a feme sole. This was clearly intimated in Withers v. Sparrow, 66 N. C., 129. That- expression was doubtless taken as an indication that this court would so hold, when the question was fairly presented. At the session of 1868-’69 we find no legislation upon the subject of married women. The effect of the holding, as foreshadowed in Withers v. Sparrow, supra, would have been to adopt the English and New York doctrine, by which a married woman could contract with respect to her separate estate as a feme sole. At the session of 1871-’72, chapter 193, an act was passed “concerning marriages, marriage settlements and the contracts of married women.” The act is comprehensive in its scope and evidently drawn with care. The subject matter, as published in the Public Laws of 1871-’72, is classified under “headings,” the third being, “What contracts a married woman may make with strangers.” Section 17 (being section 1826 of The Code). “No woman during her cover-ture shall be capable of making any contract to affect her real or personal estate, except for her necessary personal expenses or the support of her family, or such as may be necessary in order to pay her debts existing before marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed.” It would seem that the Legislature enacted this statute with full recognition of the radical change made by the Constitution, and the clear suggestion by the court that the power to contract, as a feme solej was conferred as a necessary incident to the power to own property “as if unmarried.” It was not supposed that the words “devise” and “with the written assent of the husband convey,” used in the Constitution, referred to her power to enter into executory contracts. For the purpose of throwing around her the protection of her husband’s counsel and advice, the Legislature declared that, with certain exceptions, she should not contract “without the written consent of her husband.” In the absence of controlling decisions to the contrary, we should unanimously hold that she could make all maimer of contracts with the written assent of her husband, and that for breach of them her property was liable as if she were a feme sole. The cases which came to this court during the years 1868-1816 clearly indicate that such was the construction of the statute by tbe profession and laymen.

The first case is Harris v. Jenkins, 72 N. C., 183 (1875). The feme plaintiff signed a sheriff’s bond as security without the written assent of her husband. The case came clearly within the words of the Act of 1871-’72, and the court did not hesitate to hold that she was not bound.

Pippen v. Wesson, 74 N. C., 437 (1876), presented the question for the first time, whether under the Constitution and the Act of 187l-’72 a married woman could, with the written assent of her husband, enter into an executory contract for breach of which she could be sued to judgment, and her property subjected to sale under final process. It will be noted that the statute uses the word “contract.” There is no suggesstion therein of any other form of obligation or remedy for breach thereof. This court held that no power to enter into an executory contract was conferred by the Constitution or statute on a married woman; that the only change made in her contractual capacity was that her separate estate, formerly called her equitable separate estate and property secured by the intervention of a trustee, was by the Constitution made her statutory separate estate, her husband occupying the position of trustee; that the only way in which such separate estate or property could be subjected to her engagements, even with the written assent of her husband, was by a specific charge or by showing" a beneficial consideration; and that thereby her separate estate was charged with her obligations, not upon the theory that she had contracted a debt, but that her engagement, thus made, constituted a charge which the courts of equity had theretofore enforced. .

It is not our purpose to do more than say that this decision was based upon the view that neither the Constitution nor the statute enlarged her common law contractual capacity, and that the statute was disabling rather than enabling in its provisions, except as to the class specified. Whatever, in the light of thought and experience of thirty years, may be said of this decision, it became the accepted law of this State, and its fundamental principle with some modification, has been followed. A number of important and disturbing results have flown from it. A constant struggle has been going on to find some adjustment of the law' to the inevitable result of the radical change made-by the Constitution. Married women today are the owners of property, both real and personal, worth millions of dollars. They employ tenants and croppers and cultivate thousands of farms, engage in merchandise, conduct hotels, boarding houses and almost every kind of business suited and sometimes unsuited to their mental and physical capacity. The-largest possible powers have been conferred upon them in> respect to the control of their property, as in Manning v. Manning, 79 N. C., 293, and many other cases. It has .been found by an experience of thirty years that the most unexpected and often startling results have come from this condition. As- a matter of every day experience, we know that a very large portion of the industrial and commercial life of -the State is under the control and subject to their judgment and opinion. It is possible that nine-tenths of the contracts entered into by them are not enforcible in the courts.

In Harvey v. Johnson, 133 N. C., 352, upon a review of, and in accordance with all former decisions, this court held that a note executed by husband and wife, charging her separate estate, is sufficient to bind her sepárate personal property; that in the. absence of a privy examination it did not bind her separate real estate. In that case it appeared that the consideration enured to the benefit of her estate.

In Flaum v. Wallace, supra, such a note was held binding on her separate personal estate, although not for her benefit. This court took one step forward in the enfranchisement of married women by holding, in a well considered opinion, in Vann v. Edwards, 135 N. C., 661, that the restriction upon her right to convey her land, requiring the written assent of her husband, did not apply to her separate personal estate; hence, it is now the law of this State that she can sell and transfer her personal property as a feme sole.

It is unnecessary to make further reference to the numerous decisions of the court in which her power to deal with her separate personal estate is discussed. Flaum v. Wallace and Vann v. Edwards, supra, settle her rights in this respect.

It is said, however, that a different principle obtains when it is sought to subject her separate real estate to her contractual obligations. While expressions had been used by some of the judges indicating an opinion that she could do so only by a contract executed with the formalities prescribed for the conveyance of ber land, no decision was made to that effect until 1890, when -the question underwent a careful and thorough consideration in Farthing v. Shields, 106 N. C., 289. There, Mr. Justice Shepherd, referring to Flaum v. Wallace, said: “We were greatly influenced in so holding because of the power of the wife to absolutely dispose of her statutory separate personal estate by the simple assent of her husband, and we deemed it but reasonable that if she could so absolutely dispose of such property, she might exercise the lesser power of charging 'it, either expressly or by necessary implication. But when we come to the statutory separate real estate, the foregoing reason fails, because under our statute law, the wife and husband cannot dispose of such property unless the former has been privately examined, separate and apart from her husband.” The learned justice concludes that the power to charge her separate estate is measured by her power to dispose of the same; hence, if she had expressly charged the debt in that case with the written assent of her husband, “it would have been of no avail without privy examination.” In further discussing the law he says that the lands of a married woman cannot be charged by any undertaking on her part “unless it be evidenced by deed with privy examination.” This, for the reason that she will not be permitted to do indirectly what she cannot do directly. Scott v. Battle, 85 N. C., 184. Similar expressions are used in Thurber v. LaRoque, 105 N. C., 301; Williams v. Walker, 111 N. C., 604; Loan Asso. v. Black, 119 N. C., 327; Bank v. Fries, 121, N. C., 241. In Weathers v. Borders, 121 N. C., 387, the contract was not in writing and of course there was no privy examination. The expression that she could only charge her real estate by “a regular conveyance executed as required by the statute,” etc., was not necessary to the decision of the case and, as we have seen, is not required by any decision of this court. When the question came directly before the court, it was said that the cases did not bold it to be necessary that a mortgage should be executed. Banks v. Ireland, 122 N. C., 571.

It will be found in all these cases that the question whether it was necessary that the form of the contract should be a conveyance, was not presented. It is evident that the judges were referring to the formalities with which such contracts should be executed. In Bank v. Howell, 118 N. C., 271, it is said that she cannot charge her separate real estate “except upon privy examination.” In Bank v. Ireland, 122 N. C., 571, the present Ghief Justice, writing in that respect for a unanimous court, referring to Farthing v. Shields, supra, and other cases, said: “Those decisions do not require that the charge shall be made by mortgage.” In so far as it was intimated that no privy examination was necessary, the then chief justice and other justices did not concur.

The conclusion is irresistible that where the contract has all of the elements required by the statute and is reduced to writing, assented to by the husband, and the wife is privately examined separate and apart from her husband, it is binding upon her separate real estate. In this record we have such a contract, executed with all the formalities required for conveying the property, describing it with sufficient certainty to convey, the consideration clearly set forth, admittedly for the improvement of her separate real estate. Why is such estate not bound for the breach of her express contract, by necessary implication? It is true that she does not expressly charge it upon either real or personal estate, but she refers to her separate real estate, describing it as her property, and stating that she is erecting a dwelling thereon, and that the work and material contracted for are for such dwelling. Language not so strong was held in Bates v. Sultan, 117 N. C., 94, sufficient to charge her personal estate. Brinkley v. Ballance, 126 N. C., 393.

The decisions, while not in all respects harmonious, indicate a movement of the court towards bringing the -law in this respect into harmony with our social, industrial and commercial conditions. The Legislature has to some extent responded to this demand. In so far as it is within our province to do so, we desire to express our opinion that it is desirable that the Legislature simplify the subject by giving to married women full power to enter into executory contracts, binding their property, real and personal, “as if unmarried” — removing all doubt and uncertainty either as to the form of the contract, its execution, or remedy for breach.

How far they should be restricted or protected by requiring the assent of the husband is worthy of the most careful con sideration. It is manifest that the court, in its desire to so construe the statute as to prevent injustice and wrong, has been hampered by the early decisions made when we were passing from the old into the new conception of the status of married women, in respect to their rights of property and power to contract. The wisdom of the experiment was seriously doubted by many of our wisest men, both lawyers and laymen. It was probably well, when confronted with two cases in which married women bad signed bonds as security, that the court,should move cautiously.

We do not feel at liberty, nor is it necessary in this case, to overrule any of the decisions made in this court upon the subject. This, with the exception of Bank v. Ireland, supra, is the first case in which an executory contract was executed by the wife with privy examination. She was held liable there, because there was an express charge. In this case, in which the contract is executed with privy examination, we bold that she is liable upon an implied charge upon the separate real estate. We have not overlooked Daugherty v. Sprinkle, 88 N. C., 300, nor Thompson v. Taylor, 110 N. C., 70. In neither of these cases was there any express contract by the married woman.

We are of the opinion and so bold that upon the pleadings and contract, His Honor correctly Held that- the separate real estate of the feme defendant was bound for the amount found to be due by the jury. The plaintiffs are entitled to enforce their lien on her property. This court in Thompson v. Taylor, supra, said that the lien, given by the Constitution and statute for work and labor done and material furnished, was predicated upon a valid contract, and, as a married woman had no capacity to make such a contract, her property could not be subjected to such lien. This was not the point in the case. The feme covert had not made any contract, either express or implied. In Smaw v. Cohen, 95 N. C., 85, it was held that an action against a married woman to enforce a lien for an amount less than $200 was within the jurisdiction of a justice of the peace. This court, as we construe the opinion, did not pass upon the validity of the contract. Mr. Justice Shepherd, in Farthing v. Shields, supra, intimated that the lien could be enforced upon a simple contract by the married woman because of the lien law. However this may be, we are of the opinion that by construing section 6 in connection with section 3 of Article X of the Constitution, and section 1826 in connection with section 1781 of The Code, the conclusion is sustained that for all debts contracted for work and labor done, a lien is given upon the property of a married woman.

It is true that the lien is given'for the amount due upon debts contracted. In this connection it is permissible to give the term “contracted” the larger meaning — agreed to be paid — thereby giving a highly remedial statute an operation commensurate with its purpose. The provisions for the mechanic’s and laborer’s lien and for securing to the married woman her property, are found in the same article of the Constitution. In this case, the principle noscitur a sociis is invoked to ascertain the intention of the law maker. Sutherland Const. Stat., section 414, et seq. It has been held by many courts that when a married woman was empowered to contract for tbe benefit of her separate estate, the lien for debts contracted for that purpose attaches. Boisot Mech. Liens, section 271; Philips on Mechanic's Liens, section 96; Carthage M. & W. Co. v. Baumann, 44 Mo. App., 386. In Stephenson v. Ballard, 82 Ind., 87, it is held that a statute forbidding a married woman to encumber her separate estate, except by deed with her husband, must be so construed in connection with another statute giving a mechanic’s lien as to give effect to the latter. Greenough v. Wigginton, 11 Iowa, 435; Appeal Germania Savings Bank, 95 Pa. St., 329; Kuhas v. Turney, 87 Pa. St., 497. However this may be, the Act of 1901, chapter 617, expressly extends the lien law to the property of married women. It has been sustained in Finger v. Hunter, 130 N. C., 529.

We think that in the light of the authorities and upon the reason of the thing, the judgment can be sustained upon either view, that under the Act of 187l-’72 (Code, section 1826), the feme defendant is liable, and that upon a proper construction of the lien law, she is equally so.

We have examined the exceptions in the record to rulings of His Honor during the trial and do not find any error. We have taken this case under advisement from the last term and given to it our most serious consideration. We hope that the subject of the powers and rights of married women in respect to their property and contracts, may attract the attention of the General Assembly and be brought into harmony with the best modern thought and conditions. The judgment must be

Affirmed.