Smith v. Bruton.

CLARK, C. J., dissenting. This action was brought by the plaintiff to recover possession of a tract of land of which she claims to be the owner. The defendants contest her claim on the grounds, first, that they and those under whom they claim have been in possession of the same for fifty years, and, second, that the plaintiff, before this suit was brought, had entered into an agreement with Adelaide Kron and Elizabeth Kron, who claimed title to the land, to enter into an arbitration to have (80) settled the title thereto; that the arbitration was had and an award made and returned to court, in which the title to the property was adjudged to be in Adelaide and Elizabeth Kron; that the award was made a judgment of the court and that the plaintiff is estopped by that award and judgment from claiming the land. In their answer the defendants further averred that although the plaintiff was a married woman at the time of the submission of her case for arbitration, and has since that time been continuously a married woman, yet that she had been abandoned by her husband at the time she entered into the agreement and had not been living with him for more than ten years, and has not since lived with him; that she was at that time and has ever since been a free trader. In her reply the plaintiff said that she had not been abandoned by her husband "as alleged in the answer." The main question in the case, then, is: Can a married woman without joinder of her husband consent to have the title to her real estate determined by the award of arbitrators? The defendants contend, however, that it will not be necessary to decide that question in this case. Their counsel insist that that statement in her reply, wherein she says that her husband has not abandoned her "as alleged in the answer," is not such denial of the defendant's averment as is required by The Code, and that therefore it is to be taken as true that her husband had abandoned her, by her own admission; and that that being so, she had a right not only to consent to the arbitration, but even to convey the land by deed without the written assent of her husband, if she wished to do so. If it should be conceded that the plaintiff's reply, in the respect complained of, was not sufficient to amount to a denial of the charge of abandonment by her husband, yet it is to be remembered that no reply (81) on that question on the part of the plaintiff was necessary. The matter averred on the part of the defendants was not a counterclaim, and was deemed to be controverted by the plaintiff as upon a direct denial or avoidance. The Code, sec. 268. *Page 87 The arbitrators in their award had nothing to say about whether or not the plaintiff had been abandoned by her husband. They declared that she was a married woman during the period of the arbitration and award, and had children, and the court held that she was estopped in the present action by the judgment rendered in the Superior Court upon the award of the arbitrators. The defendants further contend that as the plaintiff admitted in the agreement to arbitrate that she was a citizen of this State, and in her declaration to become a free trader she stated that her husband was a citizen of Arizona, she had the right to convey her land by deed under express decisions of this Court; and, therefore, if she had a right to convey the land by deed, she would have a right to submit to arbitration the settlement of her title. But the decisions of this Court which counsel rely upon do not sustain their position. We were referred to Hall v.Walker, 118 N.C. 380, and Levi v. Marsha, 122 N.C. 565. In the first-mentioned case the Court said: "The sole question is whether section 1832 of The Code was constitutional. That section is as follows: `Every woman whose husband shall abandon her or shall maliciously turn her out of doors shall be deemed a free trader, so far as to be competent to contract and be contracted with, and to blind her separate property, . . . and she shall have power to convey her personal property and her real estate without the assent of her husband.'" In the case just above referred to the plaintiff's husband had deserted and abandoned her for five years, had been continuously out of the State, had not been seen or heard from by the wife, and he had in no way contributed to the support of herself or her family. In the case before us there (82) was no such evidence offered, and no finding by the arbitrators in their award of abandonment or desertion, failure to support, or cruelty on the part of the husband. In Levi v. Marsha, supra, the husband resided in Syria, and had never been in the United States either as a resident or as a visitor. The wife contracted a debt with the plaintiff, and the sole question was whether she was liable on her personal contract. A married woman in North Carolina can be bound as to her land in only two ways: By her deed duly executed with the written assent of her husband and with her privy examination, or by the judgment or decree of a court of competent jurisdiction. As to the requirements of the first method, the decisions of this Court are very numerous, and we will only mention those of Scott v. Battle, 85 N.C. 184, 39 Am. Rep., 694; Farthing v. Shields,106 N.C. 289; and Smith v. Ingram, 130 N.C. 100, 61 L.R.A., 878; and as to the latter method, Green v. Branton, 16 N.C. 500; Smith v. Ingram,supra. But it may be asked, Does *Page 88 not the present case fall within the decisions of the two last-mentioned cases? Was there not a judgment and decree against the plaintiff in a court which had jurisdiction of her person and of her property; and, if so, was she not bound by that decision and judgment? Undoubtedly, a married woman would have the right under section 178 of The Code to bring an action, without the joinder of her husband, to have settled the title or any right connected with her separate real estate, and if, upon the regular trial and disposition of that suit, a judgment or decree of the court should be rendered against her, she would be bound by it, and the judgment would be thereafter a matter of estoppel by record in any subsequent claim she might make to the property. The reason for that is that the married woman's interests are under the eye of the (83) court, and its judgment or decree is based upon the law as it is written and applied to the conditions and facts brought out and developed in the case. In an arbitration the matter is entirely different. Arbitrators are not bound to make their award according to law, nor are they bound to weigh the evidence; and the court will make a judgment of the award, if it is regular on its face and there are no evidences of fraud, without any inquiry as to how the arbitrators arrived at their conclusion. So it is perfectly evident that if a married woman could dispose of her real estate, without the joinder of her husband, by submitting her title to arbitrators, that part of section 6, Article X of the Constitution which ordains that a married woman, with the written assent of her husband, may convey her real estate, would be a dead letter. If such were the law, married women, from design or by means of fraud and deceit, might by arbitration be deprived of their real estate and the husband deprived of his rights therein before he had knowledge of the matter, or the power to prevent it in either case. If a married woman could dispose of her real estate through arbitration, she would be enabled by an indirect method to do that which the Constitution and the laws prohibit, and that will never be allowed. That the plaintiff was a free trader can make no difference. As we have said, there are only two ways by which a married woman can dispose of her real estate — one by deed, with the written assent of her husband with her privy examination, and the other by decree or judgment of a court of competent jurisdiction. However, the question of the right of a free trader to charge her separate estate does not arise in this case, for the record shows that the matter involved here did not concern any transaction other than the settlement of the ownership of the land. It does not appear that she had any creditors or owed any (84) debts. *Page 89 We omitted to state in the beginning of this opinion that the defendant's counsel state in their brief that the appellant has filed no exceptions to the judgment of the court below. The plaintiff took a nonsuit after an intimation of his Honor that she was estopped by the award and judgment. We do not understand how this statement crept into the brief of the defendants. We know, however, that it was an inadvertence. There was a statement in the judgment that the nonsuit was taken by the plaintiff because of his Honor's intimation, and from the judgment the plaintiff appealed. Besides, the assignment of error (and there is only one) is in these words: "That the court erred in holding that the record set up in the answer was res adjudicata or an estoppel against the plaintiff, and that the plaintiff could not recover upon the admission of the plaintiff that she could not recover if such record did constitute an estoppel or was res adjudicata." Reversed. WALKER, J., took no part in the decision of this case.