Bowles v. Bowles, 379

• Decision Date: 08 April 1953
• Docket Number: No. 379,379
• Citation: 75 S.E.2d 413,237 N.C. 462
• Parties: BOWLES, v. BOWLES.
• Court: North Carolina Supreme Court

Page 413

75 S.E.2d 413

237 N.C. 462

BOWLES, v. BOWLES.

No. 379

Supreme Court of North Carolina.

April 8, 1953

Land, Sowers, Avery & Ward, Statesville, for the plaintiff, appellant.

Scott, Collier & Nash, Statesville, for the defendant, appellee.

PARKER, Justice.

Separation agreements between husband and wife have not always been recognized as valid in North Carolina. Collins v. Collins, 62 N.C. 153; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261. This view has been modified from time to time. The authorities are generally agreed upon the requisites for a valid deed of separation. One essential requisite is that the 'agreement of separation * * * must be reasonable, just, and fair to the wife, having due regard to the condition and circumstances of the parties at the time it was made.' Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460.

'Questions relating to the construction, * * * of separation agreements between a husband and wife are governed, in general, by the rules and provisions applicable in the case of other contracts generally.' 17 Am.Jur., Divorce and Separation, Sec. 732.

'The cardinal rule to be applied in determining the effect of property settlement agreements is to ascertain the intention of the parties as expressed in the agreement, and to carry out such intention as nearly as may be done without violence to the language used.' 27 C.J.S., Divorce, § 301.

'The heart of a contract is the intention of the parties which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time. Jones v. Casstevens, 222 N.C. 411, 23 S.E.2d 303.' Gould Morris Electric Co. v. Atlantic Fire Ins. Co., 229 N.C. 518, 50 S.E.2d 295, 297. See Wall v. Williams, 93 N.C. 327, where this Court in construing a contract for support, gave the word support a liberal construction.

Webster's New International Dictionary defines exclude as follows: 'To shut out; to hinder from entrance or admission; to refuse participation, enjoyment, consideration, or inclusion to; as, to exclude the light; to exclude one nation from the ports of another; to exclude nonessentials from an argument; * * *. Keep out what is already outside.'

The meaning of the word exclude has frequently been construed in connection with G.S. § 1-593. 'The time within which an act is to be done, as provided by law, shall be computed by excluding the first and including the last day. If the last day is Sunday or a legal holiday, it must be excluded.' In construing this statute this Court has decided in many cases that exclude means to shut out; to refuse consideration in the computation of time. Barcroft v. Roberts, 92 N.C. 249; Burgess v. Burgess, 117 N.C. 447, 23 S.E. 336; Pittsburg Lumber Co. v. Rowe, 151 N.C. 130, 65 S.E. 750; Adcock v. Town of Fuquay Springs, 194 N.C. 423, 140 S.E. 24; Pettit v. Wood-Owen Trailer Co., 214 N.C. 335, 199 S.E. 279.

In Pittsburg Lumber Co. v. Rowe, supra [151 N.C. 130, 65 S.E. 751], the court says: 'The court adjourned for the term June 5, 1908. Under the consent order plaintiff was required to serve his case within 30 days. Excluding the 5th, plaintiff was required to serve his case on July 5th. That day being Sunday, service on the 6th is legal.'

The agreed case states that the defendant with the consent of the plaintiff, through a real estate agent, has rented the house for $75 a month It is a fact known to...