Daughtry v. Daughtry

• Decision Date: 06 June 1945
• Docket Number: No. 737.,737.
• Citation: 34 S.E.2d 435,225 N.C. 358
• Court: North Carolina Supreme Court
• Parties: DAUGHTRY . v. DAUGHTRY.

34 S.E.2d 435

225 N.C. 358

DAUGHTRY .

v.DAUGHTRY.

No. 737.

Supreme Court of North Carolina.

June 6, 1945.

Appeal from Superior Court, Alamance County; Clarence E. Blackstock, Special Judge.

Action by Lorena G. Daughtry against J. G. Daughtry to invalidate a contract executed between the parties as husband and wife. From a judgment holding the contract invalid, defendant appeals, assigning error.

Affirmed.

Civil action challenging the validity of a contract between husband and wife.

A difference having arisen between the plaintiff and defendant as to the use and occupancy of their property and with reference to the amount to be paid to Lorena Daughtry and their daughter, the parties mutually agreed to settle their differences and executed a contract on October 1, 1942, wherein J. G. Daughtry agreed "to pay to his wife, Lorena Daughtry, for herself and daughter, Lovestine G. Daughtry, the sum of $150 per month, beginning as of November 1, 1942, and continuing on the first day of each month thereafter as long as the agreement is in effect." The wife was to have the use and occupancy of the home in Clinton, N. C, where she and their daughter lived, together with its furnishings, while the husband was to have the use and occupancy of their Sampson County farm, together with the income therefrom. It was provided in the agreement that the title to the aforesaid real estate was to remain unchanged.

At the time of the execution of the contract, the plaintiff was carrying life insurance upon his own life, and upon the life of his wife and the lives of their children, in an aggregate total in excess of $48,000. It was agreed that the beneficiaries in said policies were to remain unchanged.

The contract was not executed in accordance with the requirements of G.S. § 52-12 and his honor held it is null and void, and entered judgment accordingly.

Defendant appeals, assigning error.

Long & Long, of Graham, for plaintiff.

John B. Williams, Jr., and Faircloth & Faircloth, all of Clinton, for defendant.

DENNY, Justice.

It is alleged in the complaint and admitted in the answer that plaintiff and defendant were married in 1912, and lived together as husband and wife until May, 1942. Therefore, the contract under consideration was executed after separation and provides for the support of the defendant and their minor daughter. The contract also determines the rights of the respective parties thereto as to the use and occupancy of certain properties and the income therefrom.

The appellant insists that this agreement is not such a contract between husband and wife as to require the separate examination of the wife, and a finding by the probate officer examining the wife that it is not unreasonable or injurious to her, as required by G.S. § 52-12. The agreement does not purport to divest the wife of dower or the husband of curtesy in any real property owned by them or that might be acquired thereafter. Moreover, there is no contention that the wife had any legal right to the income from their Sampson County farm, which, under the terms of the agreement, the husband was to receive and retain for his own use. Nevertheless, it is apparent that this agreement fixed the sum of money the wife was to receive from the husband each month thereafter, for her support and the support of their minor child, so long as the agreement remained in effect. The provision for support brings this agreement within that class of contracts, which in order to be valid and binding on the parties must be executed in the manner and form required by G.S. § 52-12. It was so held in Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, 330, Ann.Cas.l913D, 261, where Hoke, J., in speaking for the Court, said: "While we have held that...