Stout v. . Perry

Manning, J. The plaintiff contends that the judge’s ruling was correct, because the contract between the husband and wife was not executed with the formality required by section 2107, Rev., and the evidence offered did not so tend to prove, but established that it was not so executed. ' The defendants contend that the evidence tended to prove that the wife created her husband her agent; that it was not a contract to charge or impair the body or capital of the wife’s personal estate for the husband’s advantage, and was not required to be executed with the formality prescribed by that section of the Revisal. That the husband can be appointed her agent by the_wife jhas been several times decided by this Court, and_seems¡jo.ojL¿ñ.be_ controvefted~~by "the ' plaintiff. Bazemore v. Mountain, 121 N. C., 59; Weathers v. Borders, 121 N. C., 387; Cunningham v. Cunningham, 121 N. C., 413; Witz v. Gray, 116 N. C., 48; Faircloth v. Borden, 130 N. C., 263; Francis v. Reeves, 137 N. C., 269; Weld v. Shop Co., 147 N. C., 588. It is clear that the contracts required by section 2107, Rev., to be executed with the formality of a deed are contracts made between the wife and the husband, by which the wife conveys, affects or charges any part of her real or personal estate to the benefit of and for the advantage of her husband. Its purpose was to prevent frauds by the husband upon the wife, and to give validity to transactions, invalid at common law, between husband and wife, of the nature described, provided they are executed with the prescribed formality. Sims v. Ray, 96 N. C., 87; Long v. Rankin, 108 N. C., 338. The liability of the wife for her antenuptial debts is declared by section 2101. It being her clear duty to pay such debts, we knnffi_of.no statute or decisionjwhich forbids.her to appointher husband her agent to pay jthese^ debts, and deliver to him the means with which to do so.. There is no statute which prevents a wife from being honest. If the wife recognized her moral duty to support an aged and invalid mother, we are not advised of any statute or decision which forbids her to discharge this *314 high moral duty. It follows tbe precept of divine law, and we find no human statute which forbids it. She may appoint her husband her agent to disburse the means which she shall supply him for the discharge of this moral obligation. IíLÜifí_seygEal„cases..-eited-.there can be found no utterance of this Court which*indicates that a feme covert is_required to use any different jbrnudity, iix.ap_psijliiag=her, agent than a. person sui The excluded evidence tended, at least, to prove that in the transaction detailed the wife appointed her husband her agent to collect the notes, and directed him how to disburse the proceeds. The burden is cast upon his representatives to prove (they admitting'he did collect the notes) that he disbursed the proceeds as directed by his wife. In excluding the evidence offered by the defendants, there is error, for which there must be a New trial.