Farthing v. Shields
| Decision Date | 17 March 1890 |
| Citation | 10 S.E. 998,106 N.C. 289 |
| Parties | FARTHING v. SHIELDS et ux. |
| Court | North Carolina Supreme Court |
This was a civil action tried before ARMFIELD, J., at January term, 1890, of the superior court of Durham county, brought by plaintiff to recover of defendants a balance of about $1,000, on a note executed by defendants in the following words: " The court rendered a judgment against the defendant Joe H. Shields, but refused a judgment as to thefeme defendant. From this ruling the plaintiff appealed, and the questions involved relate to the liability of the feme defendant and her separate estate for the balance due upon the bond sued upon. The complaint does not allege that the feme defendant has anything but real estate. The plaintiff tendered the following issue "What sum, if any, do the defendants owe plaintiff?" His honor refused to submit that issue, and submitted the following: To these issues the plaintiff excepted. The original complaint simply alleged the execution of the bond and that there had only been paid upon it the sum of $544.91, which was paid on June 4, 1888. To this complaint the defendant demurred, and the complaint was amended so as to allege that the bond was executed with the written consent of the husband; that the consideration was the necessary personal expenses of the wife and also for the support of the family. It also alleged that "she had a separate estate in real property, and the debt secured by said note was specially charged on her separate estate and property at and before the execution thereof, to-wit, the mortgage to plaintiff for $1,340, dated July 13, 1886." To this there was a general denial. The succeeding several pleadings contained particulars as to the dealings of the parties, and the correctness of the accounts in the settlement of which the bond and mortgage were executed. Fraud in the consideration was also alleged, all of which particulars it is not material to state.
The only witnesses to material matters were the plaintiff and the female defendant. It was in evidence, and admitted at the time of executing said note, that defendants also executed to plaintiff a mortgage to secure the same upon land belonging to the female defendant. The plaintiff testified that he was a merchant in Durham, and had been for several years, dealing in dry goods, groceries, and general merchandise. That defendant J. H. Shields had become indebted to him for provisions and agricultural supplies, clothing, etc., to the amount of several hundred dollars. That he procured for defendants a loan for $550 from one Waller, which they secured by a note and a mortgage on the feme defendant's land, (part of the land embraced in the mortgage afterwards, in 1886, given to plaintiff.) That the money procured from Waller was paid to plaintiff as a credit un the account then due him, and never actually went into the hands of either defendant. That when said note and mortgage became due Waller wanted his money, and defendants were unable to pay, and at the request of Waller he went to see them, and informed them that Waller said he would sell the land under his mortgage if they did not raise the money and pay his note. That both defendants requested plaintiff to pay Waller's note, and have his mortgage canceled, and they would give him a note and mortgage on a part of the feme defendant's land to cover the amount so to be paid to Waller, and would include what was then owing to him on the account in the name of the male defendant. That at their request, and in consideration of such promise, he did pay the Waller note and mortgage, $550 and interest, and had the same canceled, and delivered it and the note to defendants, and charged the amount of such payment on J. H. Shields' account. That in a few days thereafter defendants executed the $1,340 note and mortgage to him, above set out. That the male defendant came to Durham, (the defendants lived in Orange county,) and told him to write his note and mortgage and he would take it home, and he and his wife would execute both, and return them to him. That he did write them. J. H. Shields took them, and returned them the next day, executed by himself and his wife, with the mortgage proven before a justice of the peace of Orange county. That the goods which were part of the items of charge on the account which the note of $1,340 was given, to pay, were bought principally by the male defendant, and less than $50 worth of them by the feme defendant. That he had no written or verbal orders from her to sell the said goods. That when he saw her about the Waller mortgage he showed her a statement of the sums due him, and she said the account was larger than she thought, and that some of the things that her husband was charged with he had not brought home, and that plaintiff ought not to have let him had them without a note from her, but promised to give a note and mortgage to secure it. That J. H. Shields was well acquainted with the account and its items, and frequently looked over it, and did so on the day the $1,340 note and mortgage were drawn, and agreed to the same as correct. That J. H. Shields has no property. Mrs. Franchan Shields testified that she never saw the account. Did not know, and never did know, what items composed it. That she had nothing to do with it. Did not authorize her husband to buy the things for her. That when she bought goods from plaintiff she always paid cash for them. Knew her husband was buying goods from plaintiff, but did not inquire into his business. She gave no testimony about the Waller note and mortgage, or its payment, nor about the execution of the note sued on, or the mortgage given to secure it.
Plaintiff tendered an issue as follows: "What sum, if any, do defendants owe plaintiff?" His honor refused to submit that issue, and submitted those set out in the record, to which plaintiff excepted. His honor directed the Jury to answer the first five issues, "No;" to the sixth, "$997.58, with interest from June 4, 1888, the amount unpaid on said note;" and the seventh, "Nothing,"--to which directions, singly and jointly, plaintiff excepted. His honor charged the jury that the law required that the goods sold by plaintiff should have been bought by defendant Franchan Shields, and for her necessary and personal expenses, before they could answer the first issue, "Yes;" and that upon the evidence they must answer it, "No." To this plaintiff excepted. That they could not answer the second issue, "Yes," unless the goods charged on the account of plaintiff were bought by Franchan Shields, and for the support of her family; and that there was no evidence that they were so bought, and they must answer that issue "No." Plaintiff excepted to this instruction. That they could not find that the debt was contracted by the feme defendant with the written consent of her husband, because by "the debt" was not meant the bond sued on, but the account which the note was given for; and that there was no sufficient evidence to entitle the jury to answer the third issue in the affirmative, and they must answer it, " No." To this instruction plaintiff excepted. That even if "the debt" meant the bond sued on, yet the evidence was not sufficient to justify the jury in answering said issue in the affirmative, for the signature thereof by the husband was not a written consent to its execution by his wife, but only indicated his willingness to be bound by the note. To this instruction plaintiff excepted.
In an action to charge a married woman's separate estate with a note executed by her and her husband, which did not specifically charge her estate, plaintiff testified that it was given to secure the indebtedness of the husband "for provisions, agricultural supplies," etc., and that only a small amount of them was brought by the wife. The character of the articles received by her was not stated, nor was there anything to show that she did not receive them for her husband. Held, that the debt was not made by the wife, either for her necessary personal expenses or for the support of the family, and was therefore not liable.
W. W. Fuller and Frank L. Fuller, for appellant.
J. S. Manning, for appellees.
SHEPHERD J., (after stating the facts as above.)
This action is not brought to foreclose the mortgage executed by the defendants on the wife's land, but its purpose is either to obtain a personal judgment on the bond, or to enforce its payment out of the general statutory separate estate of the feme defendant. As the plaintiff obtained a personal judgment against the husband, it is only necessary for us to consider the liability of the wife or her statutory separate estate for the debt sued upon. Apart from the mortgage given to secure it, the bond is an executory contract, and it is well-settled by the uniform decisions of this court that, except in the cases mentioned in Code, §§ 1828, 1831, 1832, 1836, a feme covert is at law incapable of making any...
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