Smith v. . King

Clark, J.: On grounds of public policy, deeds of separation between husband and wife were held invalid in this State. Collins v. Collins, Phil. Eq., 153. There has been no statute since legalizing such d'eeds, but they seem *276 •incidentally to be recognized as valid by section 1831 of The Code. Smith, C. J., in Sparks v. Sparks, 94 N. C., 527, intimates that this section, to some extent, at least, renders valid articles of separation. But it is not necessary that we pass upon this question. For conceding, for the argument, that such deeds, in proper cases, will be upheld, we concur with his Honor below that, it being admitted that “at the commencement of this action the wife was, and had been, for twelve months next preceding -said term, living and cohabiting with the plaintiff as his wife,” the deed of separation became void and of no effect. It was alleged in the complaint, and admitted on the trial, as stated in the case on appeal, that, notwithstanding the consideration expressed on its face, the deed, in fact and in truth, was executed in consideration of the perpetual separation and living apart of the husband and wife, and to maintain the wife in such state while deprived of the support of her husband. When she returns to his roof, cohabits with him, and is supported by him, this annuls all agreement for a separation and for the support rendered necessary thereby. Adams’s Eq., 45; Shelford Marriage and Div., 629; 2 Roper Husband and Wife, 316; Sheltar v. Gregory, 2 Wendell, 422; 90 Am. Dec., 369. The law, if "it recognizes, does not favor, articles of separation, and will not so construe them as to be valid after'the parties have themselves cancelled the agreement to separate by cohabiting together, unless it appear in the deed plainly that such separate support is to be continued, notwithstanding any future reconciliation and cohabitation. This was so considered by Lord Eldon in Lord St. John v. Lady St. John, 11 Vesey, 537, and by Bulled, J., in Fletcher v. Fletcher, 2 Cox, Ch. Rep., 99. The Court properly ordered the deed to be cancelled. There is no provision of the statute that, in such cases, an entry referring to the judgment of cancellation shall be made on the margin of the registration of the deed. The *277 Court below did not adj udge the original deed void in its inception, but to have become so by matters subsequent, and the proper course was to have ordered a reconveyance of the legal title by the trustee, and that such judgment be regarded as a deed of reconveyance and registered. The Code, §§ 426, 427. The reference on the margin of registration, also, is advisable and convenient in practice, and to be recommended, but of itself it does not reconvey the title. The statute giving such effect to the marginal entry of satisfaction applies only to the discharge of trust deeds and mortgages. The Code, § 1271. The judgment should be modified to comply with provisions of sections 426 and 427. As to the fourth exception, it appears that the judgment is based solely upon the pleadings and admissions on the trial, and no facts were in dispute to be passed upon or found by the Judge. Brooks v. Brooks, 90 N. C., 142. There was no allegation in the pleadings that the return of the wife was procured by fraud, or was other than bona fide, and the answer states that her return was of her owrn motion. It was not error to refuse to submit to the jury an issue not raised by the pleadings, though the Court, in its discretion, had power to submit the issue and permit an amendment of the pleadings. On the trial, the Court suggested that it would order a reference to ascertain what debts and obligations were outstanding and chargeable upon the trust property, and whether anything was due the trustee, whereupon defendant trustee stated that “such reference was unnecessary, for that there were-no debts or obligations chargeable upon the property, and nothing due the trustee, as all the transactions under the trust had been several years ago, and had been fully settled up.” The defendant has nothing, therefore, it seems to us, on which to base his fifth and sixth exceptions. *278 It was erroneous to tax the wife and the trustee personally with costs. By virtue of The Code, § 535, subsection 1, the costs should be taxed against the estate in the hands of the trustee, and not against him personally, except when the Court adjudges that the trustee has been guilty of mismanagement, or bad faith, in such action or defence. Such was was not the case here, and the judgment for costs must be modified accordingly. Let this be certified, that the judgment may be modified below in the particulars indicated. Per Curiam. Modified and affirmed.