Archbell v. Archbell

• Decision Date: 20 March 1912
• Parties: ARCHBELL v. ARCHBELL.
• Court: North Carolina Supreme Court

74 S.E. 327

158 N.C. 408

ARCHBELL v. ARCHBELL.

Supreme Court of North Carolina

March 20, 1912

Appeal from Superior Court, Beaufort County; Cline, Judge.

Action for divorce by Jessie Archbell against William J. Archbell. From a judgment granting divorce and alimony, defendant appeals. Affirmed.

A separation agreement entered into between a husband and wife is rescinded upon their resumption of conjugal relations.

In the complaint the plaintiff by proper averment alleged cruelties and ill treatment, entitling her to divorce a mensa, etc alleged, further, ownership of an amount, real and personal of property by defendant, and that he was an able-bodied man capable of earning good wages, etc. Defendant answered denying all allegations of cruelty, and set up counterclaim for divorce by reason of wrongful abandonment by plaintiff, and denied the ownership of any real property whatever, alleging that it had all been disposed of, and the proceeds expended in support of plaintiff and the payment of costs and charges imposed upon him at the instance and by the wrong of plaintiff; that his personal property was of insignificant amount, and that he was a man 60 years of age, who could only do ordinary manual labor, and was incapable of earning any such amount as claimed in the complaint. The answer further set up a deed of separation entered into by plaintiff and defendant of date October 14, 1909, averred full compliance therewith on part of defendant, and relied upon the terms of same in bar of the action and in bar of any other or further allowance to plaintiff by reason of the marital relations between the parties. This contract and agreement was in terms as follows: "North Carolina, Columbus County. These articles of agreement entered into between W. J. Archbell of Beaufort county and Jessie Archbell of Columbus county, this 14th day of October, 1909, witnesseth: That whereas the said W. J. Archbell and Jessie Archbell were lawfully married in North Carolina four years ago, and for the past year have been unable to agreeably live together as man and wife; and whereas it is mutually agreeable that they shall each live separate and apart from the other: Now, therefore, for and in consideration of the sum of one hundred dollars to the said Jessie Archbell, in hand paid, the receipt of which is hereby acknowledged, the said W. J. Archbell and Jessie Archbell do mutually agree to live separate and apart from one another, and in consideration of the sum of one hundred dollars to her, the said Jessie Archbell, paid by the said W. J. Archbell, the said Jessie Archbell agrees, and by these presents does agree, to release and relinquish all right of support, all dower right, and all other personal and property rights which she might have acquired against the person or property of the said W. J. Archbell by virtue of the aforesaid marriage, and does hereby receive and accept the aforesaid one hundred dollars in full payment and satisfaction of all and of every right that she may hold against the person and estate of the said W. J. Archbell in consequence of the aforesaid marriage, and she does further agree to abandon and relinquish and release the said W. J. Archbell of all and every right of suit that she might have against him by reason of an act of abandonment that he might have committed in the past, and further agrees to release him of any claim she might have against him by reason of the aforesaid marriage. And the said W. J. Archbell agrees to release the said Jessie Archbell of all and every right of curtesy and all rights that he acquired in any property that she might have or might in the future possess and all personal rights that he might have acquired against her by virtue of the aforesaid marriage. And it is mutually agreed that they shall each live separate and apart from the other, independently of the other to the same extent as if they had never been married, and each shall in the future contract and be contracted with independently of the other to the full extent as if they had never been married. In testimony whereof the said W. J. Archbell and Jessie Archbell have hereunto set their hands and seals this the 14th day of October, 1909. Jessie Archbell. [Seal.] W. J. Archbell. [Seal.]" The same was acknowledged before a justice of the peace in ordinary form of privy examination, probate adjudged correct by superior court clerk, Beaufort county, and duly registered in said county on October 2, 1909.

On issues submitted the jury rendered the following verdict:

"(1) Were plaintiff and defendant married as alleged?" Answer: "Yes."

"(2) Has plaintiff been a resident of the state two years before filing the complaint?" Answer: "Yes."

"(3) Did defendant in 1908 and up to February, 1909, fail and refuse to furnish plaintiff and her child proper and sufficient food, clothing, and other provisions as alleged?" Answer: "Yes."

"(4) Did defendant on and shortly after February, 1909, assault the plaintiff with strops and other instruments as alleged?" Answer: "Yes."

"(5) Did the defendant in the year 1906 strike plaintiff with his hand as alleged by her?" Answer: "Yes."

"(6) Did defendant assault and beat plaintiff prior to May, 1906, as alleged?" Answer: "Yes."

"(7) Did defendant shortly after February, 1909, assault plaintiff on or near the bridge with her child, and whip her as alleged?" Answer: "Yes."

"(8) Did defendant wrongfully take plaintiff's infant from her, and carry it out of the state as alleged?" Answer: "Yes."

"(9) Did defendant offer such indignities to the person of plaintiff as to render her condition intolerable and life burdensome?" Answer: "Yes."

"(10) Did the defendant by cruel and barbarous treatment endanger the life of plaintiff?" Answer: "Yes."

"(11) Has the defendant been a resident of North Carolina two years preceding the filing of his answer as alleged?" Answer: "Yes."

"(12) Did the plaintiff abandon the defendant as alleged?" Answer: "No."

"(13) Was the deed of separation procured through fraud and undue influence?" Answer: "No."

On the verdict defendant through his counsel tendered judgment for divorce a mensa, and denying order for alimony by reason of the contract, etc., above set forth. The court, being of opinion that the deed of separation was void as a matter of law, entered judgment for divorce, and awarding alimony, $15 per month, for support of plaintiff, and $75 to be paid into court as fees for Ward & Grimes in conducting the present suit, and defendant excepted and appealed.

E. A. Daniel, Jr., and A. D. MacLean, for appellant.

Ward & Grimes, for appellee.

HOKE, J. (after stating the facts as above).

In Collins v. Collins, 62 N.C. 153, 93 Am. Dec. 606 the court made definite decision "that articles of separation between husband and wife, whether entered into before or after separation, were against law and public policy, and therefore void." Since that decision was rendered in 1867, our statutes upon "marriage and marriage settlements and contracts of married women," as entitled in the Code of 1883, and contained with amendments in Revisal 1905, c. 51, have made such distinct recognition of deeds of this character, more especially in Revisal 1905, §§ 2116, 2108, 2107, etc., that we are constrained to hold that public policy with us is no longer peremptory on this question, and that under certain conditions these deeds are not void as a matter of law. This change in our public policy which has been not inaptly termed and held synonymous with the "manifested will of the state" (Jacoway v. Denton, 25 Ark. p. 634), has been already recognized in several of our decisions, as in Ellett v. Ellett, at last term, 157 N.C. 161, 72 S.E. 861; Smith v. King, 107 N.C. 273, 12 S.E. 57; Sparks v. Sparks, 94 N.C. 527. And, while there are some differences in the matter of form and in the conditions requisite to their validity and their effect when executed, the general proposition as to the validity of these deeds in so far certainly as they concern property rights is in accord with that long established in England (Hill v. Hill, I. H. L. cases 1847-48, 553, and notes to Stapelton v. Stapelton, 2 White & Tudor, Leading Cases in Equity, part 2, pp. 1675-1697-1698), and which has generally prevailed with the courts in this country (Walker v. Walker, 76 U.S. 743, 19 L.Ed. 814; Commonwealth v. Thomas Richards, 131 Pa. 209, 18 A. 1007; Carey v. Mackey, 82 Me. 516, 20 A. 84, 9 L. R. A. 113, 17 Am. St. Rep. 500; Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 24 A. 926. All of them so far as examined except in New Hampshire. Hill v. Hill, 74 N.H. 288, 67 A. 406, 12 L. R. A. [N. S.] 848, 124 Am. St. Rep. 966; Foote v. Nickerson, 70 N.H. 496, 48 A. 1088, 54 L. R. A. 554). While our statute, as stated, recognizes these deeds as valid, it makes no definite regulation as to their contents or their effect when made, except in 2116, which provides in general terms that when a woman is living separate from a husband, either under a judgment of divorce or a deed of separation executed by the husband and wife and registered in the county where she resides, she shall be deemed and held a free trader, with power to dispose of her personal and real estate without her husband's assent, and, the question being to a great extent without authoritative decision in this state, we must recur for guidance to the general principles applicable and to well-considered precedents elsewhere as to the nature of these instruments and the conditions and circumstances under which they may be properly upheld. From a consideration, then, of the...