Bridgers v. . Bridgers

Davis, J., (after stating the case.) The general rule that a plea in bar of an account must be passed upon and determined before ordering a reference is well settled, and though the plea in bar does not cover all the matters involved in the pleadings it should be first passed upon, although an account of transactions subsequent to the settlement alleged in bar may be necessary. Quarles v. Jenkins, 98 N. C., 258; Clements v. Rogers, 95 N. C., 248, and cases cited. We do not understand the plaintiff as controverting this rule, but she insists that the defendant has no right to have his alleged settlement as a plea in bar passed upon, but that she is entitled to an account because of the admissions and facts of record — and that these show that there could have been no settlement by which she was barred, and this upon two grounds : First. The note given by her upon the alleged settlement was for balances alleged to be due upon notes and transactions entered into while she was a married woman and not warranted by the terms of the marriage settlement, and which, for this reason were void, and could not constitute a consideration for the notes given by her to the defendant on *76 the 17th day of March, 1885, and the note was therefore without consideration and void. Conceding, as is undoubtedly the law, that the/eme plaintiff while covert could have entered into no contract or -obligation that could have been enforced against her; and that any note that she may have given or obligation into which she may have entered, while under coverture, was void as such, and could not in themselves furnish any valid consideration for a note or other obligation executed by her when discovert and acting sui juris; yet if the consideration upon which the void note was given or the void obligation entered into, during coverture, enured to the benefit of her separate estate, it would in equity constitute a good consideration for the note, not by reason of any contract or obligation entered into, except as authorized by statute, by her which would be void, as such, but by reason of the fact that she or her property derived the benefit of the consideration. The defendant says that the money paid out by him was for her benefit — was on account of, or for the benefit of her property, and that he owed her sums with which she was credited. The action is brought for an account and settlement. The feme plaintiff says that the defendant was her agent and she asks for an account. If there were any transactions between the feme plaintiff and the defendant which entitled her to an account and settlement when discovert, it would be a curious result if the defendant could not make a valid settlement or one by which she would be barred. The very able argument of the learned counsel for the plaintiff, whose brief evinces much research and learning, applies rather to the controverted questions of fact presented by the pleadings and the law applicable to them upon which must rest the determination of the defendant’s plea in bar for or against him than to the question now before us. The -defendant alleges that there was a settlement of all transactions up to a given date, at which time the plaintiff executed *77 her note to him for a balance due to him ; the feme plaintiff admits the execution of the note, but says it was void for want of consideration. The defendant does not admit this ; he does not admit that the void notes and acts of the feme- plaintiff during coverture constituted the only consideration of the note, and an issue is raised which he has a right to have passed upon by a jury under the instructions of the Court before a reference is ordered. Second. But the further objection to the submission of the plea in bar is that the plaintiff is not bound by the settlement because of the relation of confidential adviser and attorney which the defendant sustained to the plaintiff, which-induced her to accept his statements without inquiry. This is denied by the defendant, who says that' the accounts and vouchers for the payments made by him were fully and carefully explained by him to the feme plaintiff, who held them under consideration from June, 1884, till March, 1885. The-invalidating allegations in regard to the settlement as affected by the relation of the parties 'tending to impeach its fairness on the one side and the denials on the other, are to-be considered in passing upon the defendant’s plea in bar, and he has a right to have them passed upon before the reference. There was error in ordering the reference before the issue tendered by the defendant was- passed upon. Error.