Butler v. Butler

Alliskt, J. It is provided by section 2107 of the Revisal that “no contract between a husband and wife made during coverture shall he valid to affect or change any part of the real estate of the wife or the accruing income thereof for a longer time than three years next ensuing the making of such contract, . . . unless such contract shall be in writing and be duly proved as is required for conveyances of land; and upon the examination of the wife, separate and apart from her husband, as is now or may hereafter be required by law in the probate of deeds of femes covert, it shall appear to the satisfaction of such officer that the wife freely executed such contract and freely consented thereto at the time of her separate examination, and that the same is not unreasonable or injurious to her.” This statute has been held to be constitutional in Sims v. Ray, 96 N. C., 87; Long v. Rankin, 108 N. C., 337; Kearney v. Vann, 154 N. C., 319, and at the last term the deed of a wife to her husband, duly acknowledged and with private examination properly certified, was held invalid in Singleton v. Cherry, 168 N. C., 402, by the unanimous opinion of the Court, because of the fact that the officer taking the probate failed to certify that the making of the deed was not unreasonable and not injurious to the wife. The Court said in the first of these cases: “It will be seen from a glance at the deed from Mary Ray to the defendant (her husband) that the requirements of the statute have not been observed. There is no finding that the execution of the deed is not unreasonable or injurious to the wife, and no conclusion in relation thereto certified by the officer. Our conclusion is that the deed from Mary Ray to the defendant is not valid”; in the second, “Ordinarily, where a conveyance of a feme covert is alleged, it will be presumed, upon demurrer, that it is valid and effective, but where a conveyance by the wife to the husband is made the basis upon which equitable relief is asked, the rule is different, on account of her general legal incapacity to make such a conveyance (Sims v. Ray, 96 N. C., 87), and it is therefore necessary that it should affirmatively appear, in a ease like the present, that the provisions of the Code, secs. 1835 and 1836 (now Rev., sec. 2107), have been strictly complied with,” and in the last, “The other deed of Cornelia Cherry to her husband, under which the defendants claim, has the ordi — 587 — nary privy examination in due form, but the provisions of Revisal, section 2107, Have not been complied with. This section requires certain findings and conclusions of tbe probate officer to be made witb reference to contracts between tbe wife and husband in relation to her separate property. While the act of 1911, chapter 109, known as the Martin Act, provides that a married woman may contract and deal so as to affect her real and personal property as if she were a feme sole, it excepts contracts between herself and her huband. We are of opinion that in a conveyance of the landed estate of a wife by herself to her husband, the requirements of section 2107 must be observed.” The earliest of these decisions was written in 1887, and the latest six months ago, and they cannot be said to be the utterances of judges who belonged to a ruder age and who believed in the incompetence of woman. Rather let it be said that these judges, recognizing the gentler qualities of woman, and knowing how she may be influenced to her own hurt when her affections are enlisted, have determined to give force and vitality to a statute designed, not for her enslavement, but for her protection. These cases also hold that deeds are embraced in the term “contracts” used in section 2107 of the Revisal, but it ought not to require citation of authority to show that a deed is an executory contract until delivered, and that after delivery it becomes an executed contract. The case of Rea v. Rea, 156 N. C., 526, has never been an authority for the position that the section of the Revisal (2107) does not include deeds, because there were two dissenting' judges, and Associate Justice Walker, who concurred in the judgment, did so^ upon the distinct ground that the subject-matter of the action was a gift of personalty, and therefore not a contract, and he clearly recognized the application of the statute to deeds from the wife to the husband. That this is the correct view of the case is put beyond question by the decision in Singleton v. Cherry, supra, where the Court said, all the members agreeing thereto: “It is a mistake to suppose that the case of Rea v. Rea, 156 N. C., 530, relied upon by the defendant, applies to the facts of this case, or is any authority that, in the conveyance of real property by the wife to the husband, the provisions of the statute, Re-visal, 2107, are dispensed with.” The Martin Act, chapter 109, Public Laws of 1911, has no bearing upon the question before us, because it is written in the face of the act that it is subject “to the provisions of section 2107 of the Revisal,” and this is also held in the Singleton case, in which the Court said, speaking of a deed from wife to husband: “We do not think that the Martin Act intended, in such a transaction between the husband and — 588 — wife, that tbe safeguards provided by tbe statute for tbe protection of married women should be set aside.” It would seem, therefore, that tbe validity of tbe statute as a constitutional exercise of legislative power and its application to deeds cannot be further questioned, and if valid, tbe paper-writing relied on by tbe defendants as a conveyance, standing alone on tbe certificate of probate of 1912, has no legal effect, as there is no finding by tbe officer purporting to take tbe probate that tbe conveyance is not unreasonable and not injurious to tbe wife. Tbe learned counsel for tbe defendant concede this to be true, but insist that tbe certificate of 1915 complies fully with tbe statute, and that it cures tbe defect in tbe certificate of 1912. There is much conflict of authority as to tbe power of a judicial officer to amend bis certificate of probate after tbe instrument be is probating has passed from bis bands, but it seems that tbe weight of authority is against tbe exercise of tbe power. (1 Devlin on Deeds, sec. 539 et seq.) and all agree that it is a power fraught with many dangers. Tbe higher judicial tribunals are not permitted to correct their records without notice to tbe parties and without an opportunity to be beard, and if tbe jiosition of tbe defendant can be maintained, a justice of tbe peace, who has no fixed place for tbe performance of bis official duties, may at any time, and when parties cannot be beard, change bis certificate of probate and materially affect tbe titles to property. Counsel for plaintiff and defendant in this case bear testimony to tbe high character of tbe justice of tbe peace who made tbe certificate of 1912 and 1915, but we are dealing with a principle that affects all judicial acts relating to probates, and not with bis acts alone. If, therefore, we were inclined to admit that tbe power exists, we would not recognize it except when it is made clearly to appear that tbe later certificate was merely reducing to writing in tbe form of a certificate bis official acts done at tbe time of tbe completion of tbe first certificate, and this does not appear from tbe certificate of 1915. On tbe contrary, be does not confine bis certificate and adjudication to tbe examination of tbe wife separate and apart from her husband, as required by tbe statute, but be relies also upon an examination of all tbe facts surrounding tbe execution of tbe deed, without stating that be ascertained these facts in 1912, and concludes that “it doth appear to my satisfaction that tbe said conveyance is not unreasonable or injurious to her.” "When does this appear and when does be conclude that tbe conveyance is not unreasonable or not injurious? Tbe language deals with tbe present and not with tbe past, and tbe natural construction is that be reached this conclusion at tbe time of making bis certificate on 25 March, 1915. If not, why was not this included in tbe certificate of 1912? Tbe remainder of tbe certificate of that date is in regular — 589 — form, and gives evidence of tbe acts of an official of some experience, and if be then knew tbat it was necessary to adjudicate fhat tbe conveyance was not unreasonable, and not injurious to tbe wife, and be did so^ adjudicate at tbat time, be would bave included it in bis certificate. We therefore conclude tbat tbe certificate of 1915 is not an attempt to amend tbe certificate of 1912, and tbat it is a new and original certificate, and as sucb it can give no force and vitality to tbe deed because, if otherwise valid, both tbe grantor and the grantee were then dead. Neal v. Nelson, 117 N. C., 406; Thompson v. Lumber Co., 168 N C., 229. A deed passes no title unless delivered in tbe lifetime of tbe grantor (1 Devlin on Deeds, sec. 26Q), and it must be complete at tbe time of delivery. 1 Devlin on Deeds, sec. 310; McKee v. Hicks, 13 N. C., 379. Affirmed.