Foster v. . Williams

HoKE, J\ Our decisions have very insistently and uniformly held that in order to a valid conveyance of a married woman’s real estate there must be the written assent of her husband and her privy examination had pursuant to “the law, appertaining to the question. 1 C. S., 997; Stallings v. Walker, 176 N. C., 321; Warren v. Dail, 170 N. C., 406; Smith v. Bruton, 137 N. C., 79; Scott v. Battle, 85 N. C., 185. And when the conveyance is from the wife directly to the husband it is essential that, in addition to her private examination in ordinary form, there shall appear the certificate of the officer taking the probate that the conveyance is not unreasonable or injurious to her, as required by C. S., 2515. Butler v. Butler, 169 N. C., 584; Wallin v. Rice, 170 N. C., 417; Kearney v. Vann, 154 N. C., 311. And in the interpretation of the regulations appertaining to the subject, it is further held that the'requirements of the law are in nowise affected by the fact that the wife is, at the time of the conveyance, a properly constituted free trader. Council v. Pridgen, 153 N. C., 443. It is urged for the defendant that while these and other like decisions may express the rule ordinarily applicable, the same should not prevail in the present case by reason of a statute appearing in C. S., 3351, purporting to cure defective executions of deeds of married women free traders at the time and prior to 24 September, 1913. Our decisions on the subject being to the effect that an attempted conveyance by female covert without the private examination and certificate, as required, are absolutely void, there is doubt if same could be rendered valid by statutes subsequently passed, but if it be conceded that the defect comes only from a lack of proper probate, and same is subject to curative legislation as against heirs at law, etc., the grantor and others holding only as trustees. Under the principle applied and approved in the recent case of Sluder v. Lumber Co., 181 N. C., 69, the question is not presented Qn the present record, as, in our opinion, the statute referred to affects, and is only intended to affect, the deeds of married women to third persons, and not those she has attempted to make directly to her husband. That statute provides that deeds by a married woman, free trader, from 24 September, 1913, “taken without privy examination and without written assent of the husband,” shall be valid and effectual to convey her land, thus showing clearly that only *636 deeds of third persons were contemplated and provided for. This being the law appertaining to the question, the alleged deed of Mrs. McGrlam-mery to Her husband is void for a lack of proper examination and'certificate, and on her- death the land descends to her children and heirs at law subject to an estate by the curtesy in her husband. And he having died, and it appearing from the admitted facts that the present plaintiff was only 19 years of age at the time of the conveyance of the husband and children to defendant Williams, and the present action having been instituted within three years from her arrival at maturity, we are of opinion that on the facts presented the plaintiff is entitled to maintain the action in the assertion of her interest and ownership in all of the lands in possession and control of defendants contained in the alleged deed from Mrs. McGrlammery to her husband, to wit, one-fourth thereof, except the 95-acre tract, in which she is entitled to one-eighth undivided interest. Hogan v. Utter, 175 N. C., 332; Chandler v. Jones, 172 N. C., 574; Baggett v. Jackson, 160 N. C., 31; Gaskins v. Allen, 137 N. C., 430; Weeks v. Wilkins, 134 N. C., 522. The question sometimes presented as to whether, in actions of this kind, based on avoidance of his deed, an infant is required to restore the consideration is not raised in this record, as it appears by admission of the parties that no part of the consideration was paid to the present claimant, but all of it was received by the father except $1,000, and that was evidenced by note to him. And the authorities are to the effect, also, that the right of an infant to avoid his deed within three years after his becoming of age is not affected by reason of the adverse interest of one purchasing without notice, but the claimant is entitled to the land, or his interest in it that the facts may disclose. Jackson v. Beard, 162 N. C., 105-110; Searcy v. Hunter, 81 Texas, 644; Richardson v. Pate, 93 Ind., 423; Sims v. Smith, 86 Ind., 577; 22 Cyc., 551. Plaintiff, then, being a tenant in common to the extent of her established interest, is entitled to a division of the property as of right, either by sale or actual partition, as the facts may appear, and the portion of the decree by which this right has been denied her will be reversed. Holmes v. Holmes, 55 N. C., 334; Purvis v. Wilson, 50 N. C., 22; Freeman on Cotenancy, 424. This will be certified that the cause may be proceeded with in accordance with this opinion. Plaintiff’s appeal reversed. Defendant’s appeal affirmed.