Boyett v. First National Bank of Durham

Adams, J. The plaintiff held title to the real estate in controversy. She and her husband executed and delivered the deed of trust, and a notary public who took the acknowledgment of the makers certified, as the law requires, to the private examination of the wife. The parties agree, however, that the notary never examined the wife while separate and apart from her husband touching her voluntary assent to the instrument. C. S., 997. The plaintiff seeks a reversal of the judgment, and rests her appeal on two propositions: (1) the deed of trust is invalid and ineffective because *644 her private examination was not taken pursuant to law; (2) upon no legal or equitable principle can she be held liable for the return of the loan, or the real property described in the instrument be subjected in equity to the burden of a trust. The first proposition may be conceded. Scott v. Battle, 85 N. C., 184; Council v. Pridgen, 153 N. C., 443; Foster v. Williams, 182 N. C., 632; Hardy v. Abdallah, 192 N. C., 45. The second proposition must be considered in its relation to the statement of facts. The plaintiff and her husband signed a receipt for $3,500 for the sale or pledge of their note which was secured by the deed of trust and paid this sum, except fees and expenses, to R. L. Brown as a part of the purchase price of the land which he conveyed to the plaintiff. The plaintiff received the full benefit of the loan and now contends that the deed of trust is void and that she is free from any liability attaching to its execution. As to this position also, she relies on Scott v. Battle, supra. There the material facts are given as follows: “In the year 1845 the plaintiff intermarried with one T. H. Scott, and lived with him until the year 1850, when she separated herself from him, and from that time until his death in 1816 they lived apart with the exception of one short interval, he at no time after the day of their first separation assuming any control over her property. At the time of her marriage, the plaintiff was seized in fee of the land in controversy, and continued to possess the same until 7 December, 1858, when she conveyed it to her brother, the defendant L. E. Battle, by a deed to which her husband was not a party. The deed was attested by two witnesses, and in 1872 it was admitted to probate upon the oath of one of them, and registered without her being privily examined in regard thereto. At the time of the execution of the deed, the said L. E. Battle gave his note to the plaintiff for $600, upon which she brought suit and, at Spring Term, 1870, recovered judgment for the full amount of principal and interest, and in 1871 collected the same in full and used the money.” The trial court held that the plaintiff’s deed to Battle did not convey her interest in the land, but that she was not entitled to recover possession thereof until she had repaid the purchase money. On appeal this Court held that the plaintiff’s deed to Battle was “wholly inoperative” and that the defendant’s demand for the restoration of the' purchase money should be refused. The conclusion was stated in these words: “The plaintiff’s right to the possession of the land cannot be questioned. The statute imperatively says that, in order to effectually pass the estate of a married woman in lands, the conveyance must be executed jointly with her husband and, after due proof or acknowledgment thereof as to him, she shall be privily examined as to her voluntary assent thereto. *645 Bat. Rev., cbap. 35, sec. 14. To properly -understand tbe effects of these provisions, it is necessary to remember that the statute is an enabling, not a disabling one. . . . The statute confers upon her the power to convey by a simple mode, but it prescribes the terms, and without their strict observance the act stands, as it would at common law, absolutely null and void. The instrument executed by the present plaintiff to the defendant Battle lacked both of the essential elements to constitute it her deed — its joint execution by the husband and her own private examination — and consequently it is wholly inoperative.” Scott v. Battle, supra, was decided in the year 1881. At that time it had been settled by uniform decisions of this Court that a married - woman was incapable of making any executory contract whatever except in the cases mentioned in sections 1828, 1831, 1832, and 1836 of The Code. Farthing v. Shields, 106 N. C., 289. Afterwards the law was materially changed by the enactment of a statute which provides that every married woman, except as to conveyances and contracts with her husband, shall be authorized to contract and deal so as to affect her real and personal property in the same manner and with the same effect as if she were unmarried; but no conveyance of her real estate shall be valid unless made with the written assent of her husband as provided by section six of article ten of the Constitution and her privy examination as to her execution of the same be certified as now required by law. Public Laws, 1911, chap. 109. It has accordingly been held that a married woman may bind herself by a contract for the purchase of goods, by a contract of suretyship, and by a contract to convey real property. Lipinsky v. Revell, 167 N. C., 508; Royal v. Southerland, 168 N. C., 405; Warren v. Dail, 170 N. C., 406. It is admitted that the plaintiff and her husband signed and delivered an estoppel certificate, which is made a part of the record. It contains this paragraph: “The undersigned has therefore executed this instrument in order that it may be exhibited to prospective purchasers of the said note to induce a purchase of the same, and do hereby represent and certify that there are no defenses available to the undersigned or any of them against the payment of said note, or the payment of the monthly sums set out in the deed of trust securing same, nor any offsets or equities between the undersigned and the holder thereof, and the said deed of trust and note thereby secured are valid and free from any and all infirmities of any nature whatsoever.” In Scott v. Battle, supra, it was said that a married woman’s disability to contract distinguishes her case from one in which a purchaser under a parol contract, void under the statute, has been allowed his claim for a return of the purchase money; that the ruling in such case *646 proceeds on the idea that although the contract was void the party had capacity to make it; and that the ground of relief was that the vendor by inducing the vendee to spend his money on the land had obtained an unconscionable advantage which a court of equity would not permit him to use. As a married woman now has power to contract the principle applies to her as it applies to others. Gann v. Spencer, 167 N. C., 429. The principle is exemplified in Burns v. McGregor, 90 N. C.; 222. A married woman, her husband joining her in the execution of the deed, conveyed her land and received a deed for a tract of greater value, agreeing to execute a note and mortgage to the plaintiff on the latter tract to secure payment of the difference in the price. She signed the note and mortgage but refused to acknowledge the execution of the mortgage as her voluntary act. The court, disapproving her conduct, remarked: “The wife may, under an engagement not legally binding upon her, refuse to pay her debt, but if she- does so, she cannot keep the property for which the debt was contracted. It would contravene the plainest principles of justice to allow a married woman to get possession of property under an engagement not binding upon her, and let her repudiate her contract and keep the property. She must observe and keep her engagement, or else return the property; if she will not, the creditor may pursue and recover it by proper action in her hands.” A court of equity will not undertake to compel a married woman to execute and acknowledge a deed freely and voluntarily but it can declare the price paid her to be an equitable lien on the land in favor of the other party. North v. Bunn, 122 N. C., 766. The plaintiff received, accepted, and used the amount advanced as a loan and certified that no defenses were available to her against the payment of the note and that the deed of trust is valid and free from any and all infirmatives. To grant her the relief she seeks in this action would be inequitable and unjust. Judgment Affirmed.