Hodge v. . Powell

Davis, J., (after stating the facts). The law favors dower, and is careful to protect the rights of married women and widows. We take it to be well settled that a married woman, being under disabilities to contract, cannot be estopped by anything in the nature of a contract, but where she does anything in a matter affecting her rights, upon which a person dealing with her might reasonably rely, and upon which he did rely, she cannot protect herself by the disability of coverture, and claim all the benefits of the transaction, and repudiate all that is against her, while withholding and enjoying the fruits and benefits of her misguiding and repudiated act. It would be to make her coverture a safe retreat and safe protection for fraud. The plaintiff joined her then husband, Hawkins, in the execution of the bond to the defendant for title to the land, to be made upon the payment of the purchase money, but her privy examination was not taken, and she was not estopped from claiming dower. The defendant executed to the husband notes for the purchase money. These notes were delivered to the wife and claimed by her after the death of the husband as her property. The defendant was not *69 obliged to pay them unless he could get a good title to the land. He was in possession of the land, and she held the notes. It is manifest from the evidence, that he would not have paid the notes to her, or to any one by her direction or with her consent, if he had supposed that she would thereafter set up any claim to the land, and we are at a loss to see how, consistent with any idea of right, she could have received the money, if, at the same time, she intended to claim the land. It appears that the money was paid by her consent, and some of it by her direction, to Joseph Hodges, her present husband, and the whole of it was invested in the purchase of the home and land on which she and her husband now reside, and the title to which, according to the evidence of the husband, (the only evidence upon that point to be found in the record), is in her, though from the verdict it appears to be in the husband. Can she, while enjoying the benefits of a home, paid for by the money of the defendant, be heard to say, because she was a married woman when she joined her now deceased husband in the obligation to make title : “ I will hold my interest in my deceased husband’s land, because a beneficent law says I am not bound by any obligation entered into under coverture, and I will enjoy, with my living husband, the home and land purchased with money derived from my repudiated act, because, though not bound myself, the same beneficent law says it was the defendant’s folly to deal with me?” This the law will not tolerate. Burns v. McGregor, 90 N. C., 222, and cases there cited; Towles v. Fisher, 77 N. C., 443; Boyd v. Turpin, 94 N. C., 137. An infant is not bound by his contract, but if he makes a contract and disaffirms it, he cannot retain any property acquired by virtue of the contract, and the same principle applies to a married woman. The counsel for the plaintiff relies on Scott v. Battle, 85 N. C., 184. That case is unlike this. There the married woman had executed a deed by herself alone, and it was the folly of the purchaser to take *70 such a deed, but in that case, RuppiN, J., said, “ if a feme covert should retain and have actually in hand, the money paid her as the consideration for her imperfect and disaf-firmed contract, her vendee would be permitted to recover the same at law, or if she had converted it into other property so as to be 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. We-are also referred by counsel to Clayton v. Rose, 87 N. C., 106. An examination will show that it is unlike this. In that case the act and the silence of the wife, constituted no estoppel. She was under the presumed marital influence of her husband, and there was no consideration, benefit or advantage accruing from the transaction to her. The form of the judgment is objected to here. This is not assigned as error in the record, and it does not appear from the record that this objection was made when the judgment was rendered, or that the attention of the Judge was called to it in the Court below. If the plaintiff shall elect to claim dower, the defendant will have a right to such damages as he may sustain thereby, and the judgment can be modified and such order made in regard to the money, as will secure and protect the rights of the parties. There is no error. Let this opinion be certified to the end that further action may be had in conformity therewith. No error. Affirmed.