Hanover National Bank v. Howell

*273 Clark, J.: In Pippen v. Wesson, 74 N. C., 437, 445, it is said, a The Legislature may abolish all the incapacities of married women, and give them full power to contract as femes sole. The question is, Has it dono so?” The Court proceeded to answer the question by holding that the Legislature had not done so and that in a case exactly like the present the feme covert had incuired no legal liability by her signature to a similar obligation, it not being for lier benefit nor charged upon her separate estate. That case has been held ever since to be the settled law in North Carolina. The plaintiff contends that this case does not come under the rule because the note was payable in New York, and that by the laws of that state a married woman is liable upon an obligation like the present. The law in force there is as follows, being Ch. 381, Acts 1S*4, of New York: “ Section I. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her soparateestate.be necessary. “ Section II. Provided that this act shall not apply to any contract that shall be made between husband and wife.” Whether the adoption of a similar statute here would not cure many abuses which now exist and would not be more in accordance with the liberal intent of the constitutional provision as to married woman (Art. X., Sec. 6) is a matter addressed to the judgment of the Legislature. Our statute is still the same that was in force when Pippen v. Wesson was decided. But it was earnestly and ably contended by the counsel for appellant that, though our policy in this regard is settled until our statute shall be changed, this contract *274 being solvable in New York, the liabilities of the married woman, though resident here, must be enlarged to the extent of the New York statute. But her liability is sought to be enforced in our courts and against her property within the jurisdiction of this state, and under our present statute by our precedents judgment cannot be given against her, since a judgment would be a charge upon her real estate (if she has any), and she cannot charge it except upon privy examination. Farthing v. Shields, 106 N. C., 289; Thompson v. Smith, Ibid., 357. Nor can the plaintiff recover against her because the complaint neither alleges that she has separate property nor describes it, and it is admitted that the debt was not incurred for her benefit and is not charged on her estate. Dougherty v. Sprinkle, 88 N. C., 300; Flaum v. Wallace, 103 N. C., 296; Baker v. Garris, 108 N. C., 218; Green v. Ballard, 116 N. C., 144. But it is unnecessary to discuss the subject further since the point nq.w in issue was fully considered in the very -careful and well considered opinion delivered by Shepherd, •C. J., in Armstrong v. Best, 112 N. C., 59, in which case the authorities were cited and reviewed, and it was held that where "a married woman domiciled in this state makes :a contract solvable in another state her liability thereon can he enforced in our courts only in the same cases in which it could be enforced if the contract was solvable in this state. Affirmed.