Slocumb v. . Ray

DOUGLAS, J., delivers the opinion of the Court. CLARK, J., dissents. *Page 399 This is an action for the foreclosure of a mortgage executed 18 January, 1892, to the plaintiff by the defendant J. C. Ray, in which his wife and codefendant Mary A. Ray did not join. Subsequent to its execution, on 3 November, 1892, the said Mary A. Ray executed to the plaintiff a similar mortgage upon her dower interest in the same property to secure the same debt of her husband. In this mortgage the husband did not join. Upon the trial of the action the defendants demurred to the complaintore tenus, "upon the ground that the complaint showed upon its face that the defendant John C. Ray executed the note and mortgage on 18 January, 1892, and that the defendant Mary A. Ray, wife of John C. Ray, did not sign and execute the same mortgage at the same time with her husband, but on 3 November, 1892, she executed a paper releasing her dower interest and all other interest she might have in said lands by virtue of her marital or other rights, in favor of the note and mortgage executed by her said husband." The defendants filed no answer. The Court sustained the demurrer as to Mary A. Ray, and gave judgment against the other defendants for the debt and foreclosure of the mortgage on the land, discharging the defendant (573) Mary A. Ray. The plaintiff appealed from that part of the judgment sustaining the demurrer as to Mary A. Ray only. This presents the sole question in the case, whether the mortgage of the wife, executed by her alone, is sufficient to convey or release her right of dower. We think not. Article X, section 6, of the Constitution is as follows: "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, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed, and with the written assent of her husband, conveyed by her as if she were unmarried." Section 1256 of The Code provides that "Every conveyance, power of attorney, or other instrument affecting the estate, right or title of any married woman in lands, tenements or hereditaments, must be executed bysuch married woman and her husband." This clearly contemplates that the same instrument of writing shall be executed by both. Chapter 136 of the Laws of 1895 in no way alters this requirement, as the act simply refers to the acknowledgment and not to the execution of the instrument. This Court has well said, in Ferguson v. Kinsland, 93 N.C. 337, 339, that: "The requirement that the husband should execute the same deed *Page 400 with the wife, was to afford her his protection against the wiles and insidious arts of others, while her separate and private examination (574) was to secure her against coercion and undue influence from him." Approved in Green v. Bennett, 120 N.C. 394. The wife is legally presumed to be always under the protection of the husband, whose stronger character renders him less liable to sinister influences, and whose wider range of experience gives him a better knowledge of business affairs. The particular act by which her property is affected must meet his concurrent assent, expressly given in the instrument itself. Otherwise, the instrument is a nullity, as coming within the express prohibition of the statute and opposed to the letter and spirit of the Constitution. The Constitution includes "all property, real and personal"; while the statute relates to "every instrument affecting her estate, right, or title." Both clearly include her right of dower, which, although inchoate, is none the less vested. The legal assent of the husband cannot be presumed from any other instrument. It must be expressed in the instrument itself, to which it alone can give validity. Under the statute it is the joinder of the husband and wife that makes the instrument, which without such joinder would be the deed of neither as far as the wife's interest is concerned. We think that these conclusions, based upon the letter of the law, are in harmony with the uniform current of our decisions. Harris v.Jenkins, 72 N.C. 183, 186; Southerland v. Hunter, 93 N.C. 310, 311;Ferguson v. Kinsland, ibid., 337, 339; Lineberger v. Tidwell, 104 N.C. 506,510; Green v. Bennett, 120 N.C. 397. The opinion in Barrettv. Barrett, 120 N.C. 127, does not conflict with these cases, as there the husband and wife executed the same deed, and the opinion says, on page 130, that "The sole defect is that the privy examination was (575) taken a few minutes or hours before the husband's acknowledgment on the same day of the execution of the deed by him." It was therefore held that this defect was cured by chapter 293 of the Laws of 1893. For the reasons stated in this opinion the judgment is Affirmed.