Weir v. . Page

Davis, J.: The plaintiff bases his claim and lien for work and labor done and material furnished upon a contract made with Rufus H. Page, the deceased husband of the defendant. It is well settled that unless a married woman be a free trader, as prescribed by statute, The Code, §§ 1827, 1828 et seq., she is incapable of making any executory contract, affecting her real or personal estate, except as allowed in § 1826 of The Code. We deem it sufficient to refer to these sections of The Code and to Farthing v. Shields, 106 N. C., 289, and the authorities there cited, in which the subject is considered, as conclusive of the correctness of the ruling of his Honor below. But counsel for the plaintiff says the defendant’s property has been greatly enhanced in value by the work and labor done and material furnished, and that she enjoys the benefit of this increased value at the expense of the plaintiff, and upon broad principles of equity ex equo et bono, he is entitled to compensation and ought to be paid by the defendant, who enjoys the benefit of the increased value. The only answer to this — and so far as this Court is concerned or has power, it is conclusive — is that the law to which reference has been made clearly and explicitly declares otherwise, unless the work and labor had been done and the material furnished under a contract allowed by law. It is the duty of this Court to construe and declare the law, and it is not within its province to make or alter it. The Constitution of North Carolina secures to every married woman the sole and separate estate in her real and per *224 sonal property, independent of her husband, as if she were a feme sole. Having, in relation to her separate estate, all the rights of a. feme sole, whether and to what extent her protecting disabilities ought tó be removed, and her liabilities, in dealing with her separate estate, as to all persons other than her husband, made commensurate with her rights, and whether such alterations in the law would not prevent much injustice and many frauds, are questions to be addressed to the wise consideration and sound discretion of the law-making power, and not to the Court. No error.