Farthing v. . Shields

*295 Shepheed, J.: This action is not brought to foreclose the mortgage executed by the defendants on the wife’s land, but its purpose is either to obtain a personal judgment on the bond, or to enforce its payment out of the general statutory separate estate of the feme defendant. As the plaintiff obtained a personal judgment against the husband, it is only necessary for us to consider the liability of the wife, or her statutory separate estate for the debt sued upon. Apart from the mortgage given to secure it, the bond is an executory contract, and it is well settled by the uniform decisions of this Court that, except in the cases mentioned in The Code, §§ 1828,1831, 1832,1836, a feme covert is, at law, incapable of making any executory contract whatever. Accordingly, it has been determined that The Code, § 1826, requiring the written consent of the husband in order to affect her real or personal estate, did not confer upon her (even when such written consent was given, or where the liability was for. her personal expenses, &c.) the power to make a legal contract. Its object was to require the written consent of her husband, in order to charge in equity her statutory separate estate, on the same principle which requires the consent of the trustee when the separate estate is created by deed of settlement. Pippen v. Wesson, 74 N. C., 437; Flaum v. Wallace, 103 N. C., 296. In the light of these, and other decisions, the section should read as follows: “ No woman during her coverture shall be capable of making any engagement in the nature of an exe-cutory contract, by which her statutor}'- real or personal estate is to be charged in equity, without the written consent of her husband. But where the consideration is for her necessary personal expenses, or for the support of the family, or where it is necessary in order to pay her ante-nuptial indebtedness, she may so charge such real or personal estate without such consent of the husband.” As to *296 the real estate, it will be seen that this construction is hereinafter modified. The necessary conclusion, therefore, is that Mrs. Shields had no legal capacity to execute the bond sued upon, and that no personal judgment can be rendered against her. Appreciating this difficulty, the plaintiff amepded his complaint so as to charge the separate estate. As the instrument executed bj? the wife, with the written consent of her husband, did not specifically charge the separate estate, it was necessary to show such a consideration inuring to her benefit, or the benefit of her said estate, as would necessarily imply such a charge. Flaum v. Wallace, supra. It was for this purpose that the plaintiff undertook to show that the consideration of the instrument was either for the wife’s necessary personal expenses, or for the support of the family. These facts being alleged in the amended complaint, and denied by the defendants, the issues settled by his Honor were correct, and the exception in respect to their submission must be overruled. We also concur in the ruling of the Court that there was not sufficient evidence to show that the indebtedness was incurred for the necessary personal expenses of the wife, or for the support of the family. The plaintiff testified that the bond was given to secure the indebtedness of the husband to the plaintiff, “for provisions, agricultural supplies, clothing, etc.,” and that only about $50 of them were bought by the feme defendant. The character of the articles received by her is not stated, nor does the testimony disclose anything which is inconsistent with the idea that she received them on account of her husband. Very clearly, it is not shown that they were obtained for the support of the family, or that they were necessary for that purpose, by reason of the husband’s neglect to perform his duty in that respect. Berry v. Henderson, 102 N. C., 525. Neither can we see that they were purchased for her “necessary personal expenses.” Indeed, it seems that she had but *297 little to do with the making of the accounts, and that the transactions were managed solely by the husband and for his benefit. For these reasons, we think that there was no error in the instructions given on the first and second issues. As to the third issue, it is argued that there was error, on the part of the Court, in charging the jury that the writing was not executed with the written consent of the husband. In this, we agree with the plaintiff, but in view of the findings on the preceding issues, the erroneous ruling becomes immaterial. For, conceding that the husband gave his written consent, the writing would still be insufficient to charge the separate estate, as it contains no express charge upon it, and this is absolutely necessary where the consideration is not for the benefit of the wife, or her said estate, and of such a character as to necessarily imply a charge. (See Flawn's case, supra) This disposes of all the grounds specifically set forth in the complaint upon which the separate estate is sought to be charged. But as there was evidence tending to show another consideration inuring to the wife, and the fourth issue having been framed so as to comprehend it, we assume that his Honor passed upon this phase of the case also, and we will, therefore, consider it. It seems that the husband, defendant, was indebted to the plaintiff in the sum of several hundred dollars for provisions, agricultural supplies, &c , and that the plaintiff procured from one Walker, a loan of §550, which was secured by a mortgage on the land of the defendant wife. The money never went into the hands of either of the defendants, but was applied by the plaintiff to the indebtedness of the husband. When the mortgage matured Walker threatened to foreclose, and the -plaintiff paid off and cancelled the said mortgage and took one to himself, from the wife and husband, on apparently the same land, to secure the amount so paid to Walker, and also some eight or nine hundred dollars due him by the husband. *298 It is contended that, inasmuch as a part of the consideration of the bond sued upon was for the benefit of the separate estate of the wife, in relieving it from the burden of the Walker mortgage, that her general statutory separate estate is chargeable for the same. We had occasion, in Flaum v. Wallace, supra, to discuss at some length a married woman’s capacity to charge, and the manner in which she may charge, her statutory separate estate. We there held that the wife could, with the written consent of the husband (and without his consent, in the eases within the exceptions in The Code, §1826), bind her statutory separate personal estate by way of engagements in the nature of executory contracts. We further declared that she could so charge her- said separate personal estate where the consideration was not for her benefit, or for the benefit of the estate, provided she expressly charged it in the instrument creating the liability. We were greatly influenced in so holding because of the power of the wife to absolutely dispose of her statutory separate personal estate by the simple written assent of her husband, and we deemed it but reasonable that if she could so absolutely dispose of such property, she might exercise the lesser power of charging it, either expressly or by necessary implication. But when we come to the statutory separate real estate, the foregoing reasoning fails, because, under our' statute law, the wife and husband cannot dispose of such property unless the former has been privately examined, separate and apart from the husband. Whatever may be the rulings in other States (and they are admitted be in hopeless conflict), we prefer to adhere to the principle, so often declared by this Court, that a married woman, as to her statutory separate property, is to be deemed a jeme sole only to the extent of the powers conferred by the Constitution and laws creating the same. Holding, as we do, that her power to charge such separate estate, by an engagement in the nature *299 of a contract, is measured and limited by her power to dispose of the same, it must follow that if the wife, with the ■written consent of her husband, had expressly charged her statutory separate real estate, it would have been of no avail without privy examination. But it may be said that no such express charge or written consent is necessary where the consideration is sufficient, as in this case, to necessarily imply an intent to charge. This is true, as we have said, as to the personal estate, but it has no application, we think, to the statutory separate real estate. The case of Withers v. Sparrmo, 66 N. C., 129, cited by the plaintiff, was a bill in equity, under the old system, to charge the equitable separate estate of a married woman, and is no authority in cases where charges are sought to be enforced against the statutory separate estate. Neither was the point directly called to the attention of the Court and passed upbn in Arrington v. Bell, 94 N. C., 247. On the other hand, it is well settled by this Court that the lands of a married woman cannot be charged by any undertaking on her part in the nature of a contract, unless it be evidenced by deed accompanied by privy examination. This view is strongly expressed by the Court in Scott v. Battle, 85 N. C., 184, where the land of a married woman -was sought to be charged with the purchase-money received by her from a purchaser to whom she had executed a deed, but to which she had not been privily examined. RueeiN, J., said that “upon principle, too, it seems impossible to conceive that the law will ever permit that to be done indirectly which it forbids to be done directly. Or that it will give its countenance to a doctrine which must subvert its whole theory in regard to the contracts of married women. To do so would be equivalent to saying that a feme covert cannot, by express deed, unless privately examined thereto, convey or charge her lands, and yet may, by a mere con *300 tract to sell,- and the acceptance of the purchase-money, create such a lien upon it as a Court of Equity will enforce by. a sale against her will. If this be tolerated, then the statute intended to regulate the contracts of a married woman has no longer any virtue left in it, and all the teachings of the common law as to her disability are swept away. As to her not being privileged to commit fraud, there can grow no fraud out of the contract of a married woman. It stands upon' its own strength, both in law and equity. If perfect, then well arid good; if imperfect, then it is an absolute nullity. No matter upon what consideration, and, as was said in Towles v. Fisher, 77 N. C., 438, no one can reasonably rely upon the contract of a married woman, or on a representation as to her intentions, which is, at best, in the nature of a contract, and by which he must be presumed to know that she is not legally bound.” The distinction between the liability of the wife’s separate estate for undertakings in the nature of contracts, and where she has obtained an undue advantage by fraud, is well illustrated by the following cases: Weathersbee v. Farrar, 97 N. C., 106; Walker v. Brooks, 99 N. C., 207; Towles v. Fisher, 77 N. C., 437; Boyd v. Turpin, 94 N. C., 138; Burns v. McGregor, 90 N. C., 222., Applying these principles to the case before us, it is plain that the transaction amounted to nothing more than a loan of money by the plaintiff to the wife. The plaintiff, it is presumed, knew of her inability to charge-her general statutory separate real estate in any other way than by a deed and privy examination, and if we were to give the effect contended for to such a transaction, it would, as Judge Ruffin said, be doing, indirectly, what the law forbids to be done directly. In passing, we will state that the case of Smaw v. Cohen, 95 N. C., 85, may be sustained, as to the liability of the separate estate, on the ground that the statute, ch. 41 of 1 he Code (Liens), directly charges it. *301 There is another view, however, which is fatal to the plaintiff. Where the separate estate is sought to be charged, “the complaint should allege that the wife has a separate estate subject to the charge.” Dougherty v. Sprinkle, 88 N. C., 300; Flaum v. Wallace, supra. Here the only separate estate described in the complaint is the land upon which the plaintiff has a mortgage for the money paid to Wallace by the plaintiff, and it does not appear that the wife has any other property whatever. In closing, we may remark that it is not a little strange that this mortgage does not appear, upon the pleadings, to have been foreclosed before resorting to the present action. Upon a review of the entire record, we are of the opinion that the conclusion reached by his Honor was correct., and that the judment should be affirmed. Affirmed.