Robinson v. . Jarrett

HOKE, J., dissenting. The following issues were submitted to the jury: 1. Is the defendant indebted to the plaintiff? Answer: Yes. 2. If so, what amount? Answer: $21.31. From the judgment rendered, the plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE BROWN. This action was brought before a justice of the peace against the defendant for the recovery of $200, alleged to be for necessaries of life furnished to the defendant for the use of herself and her immediate family. This is the only assignment of error. The defendant offered no evidence. The evidence of the plaintiff tends to prove that the defendant had brought suit against her husband in October, 1909, for divorce from bed and board. At Spring Term, 1910, the plaintiff amended her complaint, *Page 134 charging adultery upon the part of her husband, and obtained a judgment for divorce a vinculo, 7 May, 1910. This action was instituted 11 June, 1911. The plaintiff's evidence tended to prove that the defendant had purchased a part of the goods, to wit, $21.31, after the decree of divorce was entered. His Honor held that the justice of the peace had no jurisdiction as to the remainder of the debt, and directed the jury to (166) enter a verdict for $21.31. The plaintiff excepted and appealed. The evidence offered for the plaintiff tended to prove that the entire debt, except the aforesaid $21.31, for which the suit was brought, was incurred by the defendant pending the divorce proceedings between herself and her husband, for the necessaries of life for herself and her family, for food and clothing. The evidence also tended to prove that for some time prior to the institution of the divorce proceedings the defendant and her husband had not lived together as man and wife, and that the defendant had contracted debts for the necessaries of life for the support of herself and children. We are of opinion that his Honor erred in holding that the justice of the peace had no jurisdiction. It is true that it has been held in a great many cases that a justice of the peace has no jurisdiction to render a judgment against a married woman upon a contract entered into without the written consent of her husband, and that the remedy is to proceed in equity in the Superior Court to charge the separate estate of the married woman, if the facts justify. Dougherty v. Sprinkle, 88 N.C. 301; Flaum v.Wallace, 103 N.C. 298; Bank v. Benbow, 150 N.C. 784. These cases proceed upon the theory that at law a married woman is incapacitated to bind herself personally, and hence her contract will not be enforced against her in personam, but equity will so far recognize it as to make it bind her separate estate, and will proceed in rem against it. The law regards such estate as a sort of artificial person, created by the courts of equity, and that the estate is debtor and liable for her engagements. Dougherty v. Sprinkle, supra. The statute, Revisal, sec. 2094, prohibited, prior to the act of 1911, a married woman during coverture from making any contract affecting her real or personal estate without the written consent of her husband, unless she be a free trader. In this statute there are two notable exceptions, and these are: debts for her necessary personal expenses or for the support of her family, and such as may be necessary in order to pay her debts existing before marriage. These two exceptions are recognized in Bank v. Benbow,supra, and as to them the feme covert has always had, since the passage of the statute, unrestricted power to contract as if she was a (167) feme sole. *Page 135 It is upon this principle that the case of Neville v. Pope, 95 N.C. 346, and similar cases were decided, and it is based upon one of the exceptions contained in the statute. In that case it is held that a femecovert may be sued in the court of a justice of the peace for a debt due by her, or on a contract made by her before marriage, or for a debt contracted by her as a free trader. We base our decision upon a construction of the statute, Revisal, sec. 2094, which gives by plain implication to a married woman the unqualified and unrestricted right to contract for necessaries for the support of herself and family, which contract may be enforced to the same extent and by the same courts as if she were a feme sole. New trial.