Carolina Interstate Bldg. & Loan Ass'n v. Black

• Decision Date: 24 November 1896
• Court: North Carolina Supreme Court
• Parties: CAROLINA INTERSTATE BUILDING & LOAN ASS'N v. BLACK et al.

25 S.E. 975

119 N.C. 323

CAROLINA INTERSTATE BUILDING & LOAN ASS'N

v.BLACK et al.

Supreme Court of North Carolina.

Nov. 24, 1896.

Mortgage OF Married Woman—Estoppel—Sob-rogation.

1. A married woman, who was at the time a minor, executed a note and a mortgage purporting to convey her separate real estate to secure the note. The mortgage was void because not executed in accordance with the statute. Held, that fraudulent representations made by her at the time the mortgage was executed, that she was 21 years of age, would not estop her to assert the invalidity of the mortgage, though the representations were material inducements towards the making of the loan.

2. Where a married woman obtains a loan, and gives a mortgage, to discharge a lien then on her separate estate, and such mortgage is void, the lender is not entitled to be subrogated to the lien.

Appeal from superior court, Moore county; Starbuck, Judge.

Action by the Carolina Interstate Building & Loan Association against William E. Black and Emma C. Black, his wife, on notes signed by defendants, and to foreclose mortgages executed by them on the separate real estate of the feme defendant. There was a Judgment in favor of plaintiff against defendant William E. Black only, for the amount of the debt, and declaring void and ordering canceled the notes and mortgage as to the wife, and plaintiff appeals. Affirmed.

Black & Adams, for appellant.

Douglass & Spence, for appellees.

AVERY, J. This action is brought to recover judgment for the amount of two notes signed by William E. Black and his wife, Emma C. Black, and to foreclose two mortgages executed at the respective dates of the two notes, and purporting to convey the separate real estate of the wife to secure them. The answer sets up as a defense that the feme defendant was under the age of 21 when she signed the notes and mortgage, and was then, and has continued up to the present to be, under the additional disability of coverture. The jury found these averments of the answer to be true. The plaintiff relies, by way of replication, upon the facts afterwards found by the jury, —that the feme defendant signed an application for the loan of the money that was the consideration of the note sued on, knowing that it contained a representation that she was 21 years old, and that her representation operated as a material inducement to plaintiff to make the loans. The jury further found, in response to an issue, that $175 of the money loaned on the notes and mortgages was expended in discharging the lien of a mortgage of D. A. McDonald on the land embraced in the description in the mortgages sued upon. The main contention of the plaintiff is that the feme defendant has become liable, and has subjected her property to the hen of the mortgages, not by force of the agreement to pay, but because she is estopped to deny the false and fraudulent representations that were the means of procuring the plaintiff's money. The plaintiff is the actor in this suit, and seeks to recover on an alleged contract entered into by one at the time both an infant and a feme covert, and to subject her real property conveyed under a deed executed while both disabilities existed.

1. if the feme defendant had been 21 years old, she would have been Incapable of entering into any "contract to affect her real and personal estate except for her necessary personal expenses, or for the support of her family, or such as were necessary in order to pay her debts existing before marriage without the written consent of her husband" unless she was a free trader, under the provisions of the statute (Code, § 1826). The consent of the husband is not required at all where the obligation falls within the three foregoing exceptions. Flaum v. Wallace, 103 N. C. 296, y S. E. 567.

2. in order to charge the wife's separate property, where the assent of the husband is given, the intent to charge it must appear on the face of the Instrument creating the liability, though the property to be subjected need not be specified. The assent of the husband, when given, does not enable the wife to make a contract, but to enter into an agreement in the nature of an executory contract. Wilcox v. Arnold, 116 N. C. 710, 21 S. E. 434; Bank v. Howell, 118 N. C. 268, 274, 23 S. E. 1005, 1006.

3. The wife cannot subject her land, or any separate interest therein, in any possible way, but by a regular conveyance executed according to the requirements of the statute. The law will not allow her, even though she be 21 years of age, to dispense with these necessary forms, and accomplish indirectly, either by silence or active participation in a fraud, what the constitution, as construed by the courts, prohibits her from doing directly. Thurber v. La Roque, 105 N. C. 301, 311, 11 S. E. 400, 463; Farthing v. Shields, 106 N. C. 289, 10 S. E. 998; Hughes v. Hodges, 102 N. C. 236, 9 S. E. 437; Lambert v. Kinnery, 74 N. C. 348; Littlejohn v. Egerton, 76 N. C. 468.

it follows from the principles already stated, and which are sustained by...