Kelly v. . Fleming

MacRae, J.: His Honor instructed the jury to respond to the first and second issues “ No,” and to this instruction and the finding of the jury in response thereto there was no exception. This eliminates from the case any question which might have arisen if a part of the property conveyed by the husband had been found to belong to the wife. *138 The first exception brings before us for construction the Act of 1891, cb. 91, entitled “An act regarding chattel mortgages.” “Section 1. That whenever household or kitchen furniture is conveyed by chattel mortgage or otherwise as allowed by law in this State, the privy examination of married 'women shall be taken as is now prescribed by law in conveyance of real estate; provided that all such conveyances of household and kitchen furniture, except as herein provided, shall be ineffectual to convey a title to the same.” The question presented is whether, upon a true construction of the statute above cited, it is necessary for the wife to join the husband in a conveyance and sale of his household and kitchen furniture, and be privily examined touching her free execution of said conveyance in order to make the same effectual in law. The act is novt drawn with that precision and clearness which will enable us to reach without difficulty a conception of the will of the Legislature. The words “household and kitchen furniture” may comprise not only that species of property which is in actual use, but also that which is on sale in shops, yet no one will contend that this statute should be construed so literally^ as to embrace articles of this kind of the latter class. The word “ convey,” in its broadest significance, might embrace any transmission of possession, but we are restrained to its legal meaning, which, ordinarily speaking, is the transfer of property from one person to another by means of a written instrument and other formalities. Rapalje & Lawrence Law Diet., “ Convey, Conveyance.” According to Webster a conveyance is “an instrument in writing by which property or the title to property is conveyed or transmitted from one person to another.” Themeaningof this word being well understood at common law, it must be understood in the same sense when used in a statute. Smithdeal v. Wilkerson, 100 N. C., 52. *139 The statute refers to the manner of conveyence, i. e., by chattel mortgage, and proceeds “ or otherwise as allowed by law.” It is a very familiar principle in the construction of statutes, that when there are general words following particular and specific words the former must be confined to things of the same kind. • Southerland on Statutory Construction, § 268. To aid us in reaching the meaning of the words of a statute we may, w'hen necessary, now resort to the preamble, or even the caption or title of the act. Southerland, supra, § 210; Randall v. R. R., 107 N. C., 748; Blue v. McDuffie, Bus. Law., 131. And this we find to be an act regarding chattel mortgages. The law as it was before the passage of this act permitted the wife to convey her real and personal property with the written assent of her husband (Constitution of North Carolina, Art.. 10, § 6,), but as to her personal property no privj'- examination was necessary. The evident mischief sought to be overcome by this act is the facility with which these necessary articles for the comfort and convenience of every household, however humble — the household and kitchen furniture — may be conveyed away, notwithstanding the .protection which the law throws around them by the personal property exemption, at least during the life of the husband, by the chattel mortgage, or other lien’ noyr almost the only basis of credit for the poor man. The remedy proposed was to protect the wife, as in case of lands which-were hers, or in which she had an inchoate interest, such as dower, from force or compulsion, by requiring her privy examination to be taken before the law would recognize the validity of such conveyance. The act could not apply to those methods of conveyance of personal property by sale and delivery where no writing was used, for then the privy examination of the wife would have been impracticable. Nor to the sale by the husband of the personal property of which he was the sole owner, *140 because, in this instance it was not necessary that the wife should join. But it was intended to prevent the conveyance by chattel mortgage, or in any other way by which a lien could be fixed thereon, of the property named, as by deed of trust or conditional sale, without a writing signed by husband and wife, and the privy examination of the wife, as in sales of real estate; and this may be applicable to such prop-ert}1' whether it belong to the husband or to the wife. We do not think it was made to appear by the evidence, though the defendant so contends, that the property in controversy had belonged to the husband before the passage of this act; indeed, it will not affect our conclusion, as we have held the act not to apply to an absolute sale by the husband, such as is evidenced by the bill of sale offered in evidence. In case of a chattel mortgage or other like conveyance of his own household and kitchen furniture by the husband, the serious question would arise as to whether the provisions of the act could be made to apply — howr far the Legislature may restrain the yus disponendi of private property, where no rights of others are to be preserved, or whether it may do so at all. Bruce v. Strickland, 81 N. C., 267; Hughes v. Hodges, 102 N. C., 236; or at any rate, whether it might be made to apply to such property as was owned by the husband before the passage of the act in question. Sutton v. Askew, 66 N. C., 172. We see no force in the exception that the description of the propertjr in the instrument is not sufficient. It was intended to and did cover all of the personal property of the grantor, which was then in the house or upon the lot described. There was no difficulty as to the identification thereof, which might be done by parol. Goff v. Pope, 83 N. C., 123. The plaintiff excepted to the refusal of his Honor to instruct the jury that “ conveyances from a parent to a child are in law presumptively fraudulent, although the child is twenty-one years of age. And the transaction must be shown *141 by E. L. Fleming, Jr., to have been in good faith and without any fraudulent purpose.” We think that this prayer was too broad and'sweeping in its terms, and that the instruction could not have been given. It was said in Jenkins v. Peace, 1 Jones (46 N. C.), 413: “Nor is a parent forbidden to sell to his child. The only difference would be that the latter would be held to fuller and stricter proof of the fairness of the transaction.” • In case of a voluntary conveyance or one upon insufficient consideration by parent to child, the parent being in embarrassed circumstances, such presumption would arise. The evidence in this case would not have warranted the instruction. McC anless v. Flinchum, 89 N. C., 373. The second prayer for instruction was a correct proposition of law, but there was no evidence to support it. The evidence, if believed, was all to the contrary. We have already disposed of the third prayer and exception, and we agree with his Honor in his refusal to instruct the jury: “If the bill of sale was made, as alleged, on the 13th of July, 1892, but there was no delivery of the property until after the levy of the attachment, then the same would be invalid as to creditors.” 1 Benjamin on Sales, § 330. We think that the response to the third issue was properly understood by his Honor. If"the jury had found the inter-pleader to be the owner of part only of the property, it would have been necessary to qualify the answer, but its only meaning must be that he was the owner of it all. There is No Error.