Hall v. . Castleberry

Smith, C. J. Inasmuch as the husband is not in the action, and possession under a claim of dower can only be asserted after the husband’s death, we see no basis for the demand of a judgment for the recovery of possession of the lot that belonged to the husband, and still less for a cancellation of the mortgage deed, which, as we have repeatedly said, should not be adjudged, as it may be a protection to others not in the suit, and besides, the destruction of a deed does not reconvey a divested estate in the lands. But aside from these and other embarrassments in the way of prosecuting the present suit, the alleged irregularity connected with the plaintiff’s execution of the mortgage and the manner of taking her private examination, the imputations charged in the most general terms but specified in the plaintiff’s testimony, as impeaching the mortgage, are met and repelled by the verdict of the jury given under the instructions of the Court. The argument for the appellant made before us, proceeds upon the idea that it was the duty of the Judge to pronounce upon the legal effect of the facts developed in the testimony, and to tell the jury what it was, and that in this respect it is erroneous in law. No demand for instructions appears to have been made, and an omission to give such, as if asked, ought to have been given, it has been often said, is not an error assignable upon an imputed imperfection of the charge as transmitted with the record, for it is a settled rule to regard the record as intended to present so much of what transpired at the trial only as tended to present and explain the rulings complained of in the Court below. State v. Hardee, 83 N. C., 619; Willey v. Railroad, 96 N. C., 408, and numerous cases therein cited. *157 The exception to the charge is directed to that portion which begins with the words: “Now in this case did the Clerk examine,” &c., but where terminating, except at the end of the charge, is not stated. .The charge, proceeding from the words quoted are, “ the plaintiff separate and apart from her husband.” The statute does not define how or to what distance from the husband the plaintiff should have been separated, but the wife should have been put in a position and place with respect to her husband to feel free to express herself under the examination as to her will and desire in respect to the deed which, it is claimed by the defendants, she executed. It was not necessary to the validity of the examination of the plaintiff, by the Clerk, that her husband -should have gone entirely out of the room. It was only necessary that he should have gone separate and apart from the plaintiff, and so far as to leave the plaintiff free to express to the Clerk her will and desire with respect to the alleged mortgage freely and voluntarily. This is a fair interpretation of the requirements of the law in the conveyance of the real property of married women, and furnishes no ground of complaint, at least, to the appellant. We do not undertake to say to what extent these useful safeguards, provided for the protection of persons under coverture and their lands, observed and certified by officers authorized to take such acknowledgments and private examinations to assure the'freedom and volition of the act, may be impeached, and the deed thus made and certified rendered invalid, by proof that the act was not voluntary, but under restraint and coercion, thus rendering title insecure and uncertain, nor whether such attempted repudiation, if tolerated would not be a fraud, against which coverture does not afford shelter. Most serious consequences, with temptations to fraud and perjury might follow, the main- *158 tainance of such a proposition. But it is enough to say that in the conflicting testimony as to the fact and circumstances surrounding the present transaction, the jury find against plaintiff, and under the charge, the verdict settles the controversy adversely to the plaintiff. There is no error, and the judgment must be affirmed. Affirmed.