Draper v. . Allen

Shepherd, C. .J.: The only question presented in this appeal is whether the interest of the feme defendant in the land mentioned in the complaint can be subjected to the payment of the purchase-money. It is hardly necessary at this late day to cite the authorities which deny the existence in this State of the equitable lien of the vendor for the purchase-money. These will be found collected in the opinion in Peck v. Culberson, 304 N. C., 425, which case also decides that no change was made in this respect by the constitutional provision that no property shall be exempt from sale under execution issued on a debt contracted for the purchase thereof. Sec also upon this point, Moore v. Ingram, 91 N. C., 376. It is also equally well settled that where, as in this case, a married woman sets up her cover-ture as a defence, her contracts, except in a few instances, will be declared void ; nor will she be precluded from pleading her legal incapacity even whore it is induced by *52 lier fraudulent representations, if such representations grow out of the contract. It. is also established that she cannot charge her separate real estate by an obligation in the nature of a contract unless she has been privily examined as prescribed by law. Williams v. Walker, 111 N. C., 604; Baker v. Garris, 108 N. C., 218; Farthing v. Shields, 106 N. C., 289; Flaum v. Wallace, 103 N. C., 296. According to these principles, the feme defendant having pleaded her coverture, the bonds sued upon are void as to her; and it is also manifest that they cannot be enforced against her general separate real estate as obligations in the nature of contracts. While these limitations have been placed upon the power of a feme covert to bind herself personally or to charge her separate estate, it is not to be understood that she enjoys an immunity from those general principles of equity which sternly forbid one from repudiating a transaction and at the same time retain and enjoy its benefits. On the contrary, these principles have frequently been applied to the transactions of married women and the general doctrine has been enunciated in many cases with which the profession is familiar. Walker v. Brooks, 99 N. C., 207; Boyd v. Turpin, 94 N. C., 137 ; Burns v. McGregor, 90 N. C., 222; Hodge v. Powell, 96 N. C., 64; Williams v. Walker, supra; Atkinson v. Richardson, 74 N. C., 455. in Walker v. Brooks, supra, a father delivered his daughter (a znarried woman) a z’ailroad bozzd of the value of $1,070, azid took her bozid for $670. The Court held that the diiferezzce of $400 was azi advaziceznezit, but that she could zzot repudiate her bond for the excess ozr the ground of izzc.apacity azul retaizi the railroad security. The Court said: “ It is zzot a question of her ability to bind herself by a contract, but whether she can be allowed to retain so much as inures to her own benefit and disavow her own *53 part of the agreement, which was the consideration and condition on "which the benefit was accepted.” In Hodges v. Powell, supra, the Court said: “An infant is not bound by his contract, but if he makes a contract and disaffirms it lie cannot retain any property acquired by virtue of the contract, and the same principle applies to a married woman. The counsel relied upon Scott v. Battle, supra. That ease is unlike this. There the married woman had executed a deed by herself alone, and it was the folly of the purchaser to take such a deed, but in that case Ruffjx, J., said: ‘ If a feme covert should retain and have actually in hand the money paid her as the consideration for her imperfect and disaffirmed contract, her vendee would be permitted to recover the same at law, or if she had converted it into other property so as tobe traceable he might pursue it in its new shape by a proceeding in rem and subject it to the satisfaction of his demand.’ That is just the case here. The plaintiff has her election. If the obligation is repudiated and disaffirmed, she cannot retain the consideration .without compensating the defendant for his damages.” The principle laid down in the above case, assimilating a married woman who repudiates her contract on the ground of incapacity to that of a disaffirming infant, at least to the extent that she cannot retain the property obtained under such contract if it can be found or its proceeds traced, is'well sustained by reason and authority and is peculiarly applicable to the present case. It is urged that Mrs. Allen has done all that she contracted to do, and having performed the concurrent act agreed upon — that is, the execution of the bonds — there is no equity that can be asserted against her simply because she does not pay the same. This is a very correct proposition if she had not repudiated her obligations, in which case the same judgment would have been rendered against her as that against *54 ber husband. There would have boon no equity to charge the. land because she failed to pay, and a judgment would have been rendered for the amount of the debt and enforceable like all other judgments, except that as against the land purchased she could not have', claimed a homestead. She has not been content to abide by the contract, and the plainest principles of equity require that she should not be permitted to take an unconscionable advantage by retaining the proceeds. In such, cases, for the purpose of preventing a fraud of this kind, equity treats the legal owner as a trustee and impresses upon the land a charge to the extent of the purchase-money. Such should have been the judgment in this case, subject, of course, to the rights of the intervening mortgagee. Error.