Hall v. . Short

Dillakd,. J. There was a sum of money in the hands of the clerk and master, arising from the sale of lands for partition, to the use of which one Thos. B. Nichols was entitled for term of his life and then the principal was to remain, over to the present plaintiff who was a feme covert before and long after the sale made by decree of the court of equity. Nichols, the party entitled for life, was allowed by order of the court to receive and use the principal fund itself, on the execution of a bond with sureties, to be approved by the clerk and master, conditioned for the payment of the same at his death to the plaintiff, and in pursuance of said order of the court, the tenant for life executed the bond as required with the defendant and Chas. Latham as sureties. On the death of the life tenant, the plaintiff and her husband received from defendant $700, about one-half of the fund due, and executed to him a deed, releasing him from any and all liability for the residue of the sum secured by the said bond taken by the clerk and master, and assigning him tile money produced by the sale of the land for which the said bond was taken, so far as might be necessary for his discharge, with all the requisites and formalities, including a privy examination of the plaintiff as required by law in the case of deeds of husband and wife for land. Since the execution of said deed the plaintiff, now become discovert, has instituted this action, and therein seeks to subject this defendant for the whole-amount, the estate of the life tenant and Chas. Latham the co-surety having proved to be insolvent, and the question is, was the release *277 of the feme and her husband, discharging the defendant, in law obligatory and effectual on the plaintiff. The solution of this question makes it necessary to inquire into and determine the nature and kind of property the plaintiff had in the money secured by the bond taken in the clerk and master’s office, and to consider and define the rights and powers over the same of the feme covert. The money secured by the bond aforesaid arose from a sale of land by decr.ee of a court of equity for partition, and by law it w.as impressed with the character of realty, and retained that character-at the time of the execution of the release. Bat. Rev., ch. 84, § 17. Jones v. Edwards, 8 Jones, 336, and Lyon v. Akin, 78 N. C., 258. The estate of the plaintiff in the money was 'under our constitution a separate estate, not liable for any debts, obligations or engagements of her husband, and capable of being devised, and with the written assent of the husband, conveyed by her as if she were unmarried. Const.,'Art. N, § 6. And her power over the same is to be estimated under this clause in connection with section 17, chapter 69 of Battle’s Revisal, wherein it is enacted that no woman during coverture shall be capable of making any contract to affect her real or personal estate except for her necessary personal expenses, or for the support of her family or payment of her debts dum sola without the written assent of her husband, unless she be a free-trader. Without controversy, under these provisions of law the plaintiff with the written assent of her husband usually signified by joinder in the deed, had the right to assign, and convey her estate in the fund in question to another, or to encumber it with her own or her husband’s debts, and of this there is no need .to cite authorities. She had power to eollect in the money secured by the bond for her benefit by suit in court or otherwise, as practiced in the ordinary course of business among prudent business men; and her *278 contracts to this purpose carried into effect and executed with the written assent of her husband, were legitimate and valid. Kirkman v. Bank, 77 N. C., 394. The plaintiff had power under this restriction of having the written assent of her husband, to convey to another, or if in the course of her efforts to collect, it occurred that it was to her benefit to compromise with the defendant upon the terms of receiving one-half and releasing him from all liability on the bond for any further sum, she had the right and capacity to settle the matter on that basis and execute the arrangement by a deed suited to the purpose with joinder of the husband, and with the formalities prescribed by law for deeds to which a feme covert is a party. In Pippen v. Wesson, 74 N. C., 437, and Rountree v. Gay, Ibid., 447, it is decided that marriage under the present constitution and the marriage act'is a disability to the wife, just as it was before, to enter into any contract operating in personam, or affecting her separate estate, unless it is made-with the consent of the husband now, in place of the trustee formerly, and charged on the separate estate expressly or by necessary implication arising out of the nature and consideration of the contract and showing that it was for her benefit. And it may be if the contract of the plaintiff and her' husband with this defendant had been executory and never executed by deed, the same would be nudum paetum, and no bar to a recovery in this action according to McKenzie v. Culbreth, 66 N. C., 534; Mitchell v. Sawyer, 71 N. C., 70. But this is a contract expressly concerning her separate estate, and with the written assent of the husband, and not left ex-ecutory, but executed by a deed with the joinder of the husband and acknowledged with privy examination of the wife, releasing the defendant from any further, payment than the sum already paid, and assigning to him the entire fund for his protection and indemnity against any breach of the agreement. And it seems to us that the thing done was within *279 the express provisions of the constitution a conveyance, and barred the plaintiff of any right to recover, except perhaps in an action impeaching the release and assignment on a special equity of being obtained by fraud and imposition. It is our opinion that the release and assignment executed by the plaintiff and her husband with the requisite formalities to convey land, was effectual in law to release the defendant from the claim of the plaintiff and is a bar to her present action. There is no error. Judgment of the court below affirmed. No error. Affirmed,