In Re Foreclosure Under Deed of Trust Made by Longley

ClaeksON, J. The question involved: The appellant raised the bid within ten days after the sale under foreclosure. The property -was resold, was knocked down to him at the advanced bid. He failed to pay the imrehase price and was attached for contempt of court. Under subsequent proceedings he was exonerated of contempt of court but required by an order of court to pay a certain sum alleged to have been collected as rent on the premises during the proceedings. The appellant filed *490 response alleging that he had collected no rent from the property during the period and an order was signed by the clerk finding that to be a fact. Under subsequent appeal to the judge of the Superior Court a judgment was signed requiring the appellant within ten days to pay into court the sum of $96.50, which the record shows was rent collected by his wife and not by him. The property involved which was foreclosed having been the separate estate of the wife. Query: "Was such judgment valid ? We think not. The record to this Court imports verity and we cannot go behind it. The record discloses that the property was owned by Mrs. Broadfoot and the judgment discloses that the rent was paid to her by the rental agents — “net amount paid Mrs. Broadfoot $96.50.” We have not been furnished any authority by appellee in this Court in which a husband could collect his wife’s rents and keep them, or be responsible for them to any other person. N. 0. Const., Art. X, sec. 6, is as follows: “The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed and, with the written assent of her husband, conveyed by her as if she were unmarried.” “There is no ‘beneficent provision of the Constitution’ which throws additional shackles around women in the management of their separate property. The provision of the Constitution is in exactly the opposite direction, in accordance with the free spirit of the age and with the universal trend of legislation the world over. Its purpose is not to further assimilate married women to the condition of infants, but to make free women of them, to emancipate them from most of the restrictions formerly existing.” Strouse v. Cohen, 113 N. C., 349-353. “The Constitution was evidently intended to emancipate married women and place them, so far as property rights are concerned, on a par with men and femes sole." McLeod, v. Williams, 122 N. C., 451, 454. The common-law rule giving to the husband the actual or potential ownership of the separate choses in action belonging to his wife by reducing them into possession is now changed by this section giving the wife the sole ownership of her separate estate. Turlington v. Lucas, 186 N. C., 283. The appellant in his brief says: “The proceeding in its entirety, so far as we have been able to determine, is without a parallel and without precedent, consequently, a diligent search has failed to disclose any authority from this or other jurisdictions upon the question.” In answer the appellee says that the judgment of the Superior Court, ordering appellant to pay these rents, was not appealed from and the *491 matter is concluded. Tbe clerk bad absolutely no power under tbe statute, N. C. Code of 1931, sec. 2591, to attach appellant under tbe admitted facts in tbis case for contempt and further to force him to take bis wife’s rents, which in law be bad no control over. Section 978 is as follows: “Any person guilty of any of tbe following acts may be punished for contempt: (4) Wilful disobedience of any process or order lawfully issued by tbe court.” Tbe contempt proceedings was not an order “lawfully issued” under tbe facts and circumstances of tbis ease. Tbe proceeding is void ab initio. The judgment is Reversed.