Wood v. . Wheeler

ShepheRI), J.: The bond and mortgage are both void. Neither was executed with the written assent of the husband, and the latter was unaccompanied by privy examination. Although the bond was given for a beneficial consideration, it could not be enforced in equity as an engagement, in the nature of a contract, as it does not fall within any of the exceptions of The Code, § 1826, which dispenses with the requirement of the written assent of the husband. Farthing v. Shield, decided at this term. Although the mortgage is void, and cannot be enforced as such, still if the agreement was that it should be executed concurrently with the deed, the feme defendant would not be permitted to retain the land without paying the consid *514 eration.. This is the principle of Walker v. Brooks, 99 N. C., 207; Boyd v. Turpin, 94 N. C., 137; Burns v. McGregor, 90 N. C., 222, and other cases. In our case, the feme defendant elects to repudiate the transaction, and offers to restore the property, together with the rents and profits. There seems to have been no fraud upon her part, and in the adjustment of the equities she stands upon the same footing as an infant who disaffirms a contract and offers to restore the consideration in its original “ plight and condition.” There was, therefore, error in the judgment of the Court below. It should have made a decree looking alone to the placing of the parties in statu quo, and to this end an account should have been taken of the rents and profits and the amount of the purchase-money paid. It is also necessary that Williams, the grantor, should be made a part}'. The bond being void, its transfer by Williams to the plaintiff amounted only to an equitable assignment of the former’s right to subject the property to the payment of the balance of the purchase-money. As the effect of the rescission is to re-vest the property in Williams, it must follow that the equity of the plaintiff must be worked out under and through him. Error.