Farthing v. Shields Et Ax

• Decision Date: 17 March 1890
• Citation: 106 N.C. 289,10 S.E. 998
• Court: North Carolina Supreme Court
• Parties: Farthing v. Shields et ax.

10 S.E. 998

(106 N.C. 289)

Farthing

v.Shields et ax.

Supreme Court of North Carolina.

March 17, 1890.

Married Women—Charge on Separate Estate —Pleading.

1. Under Code N. C. § 1826, providing that "no woman, during her coverture, shall be capable of making any contract to affect her real or personal estate, except for her necessary personal expenses, or for the support of the family, or such as may be necessary in order to pay her debts existing before marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed, " a married woman cannot make a contract binding herself personally.

2. In an action to charge a married woman's separate estate with a bond executed by her and her husband, which bond did not specifically charge her estate, plaintiff testified that it was given to secure the indebtedness of the husband to the plaintiff " for provisions, agricultural supplies, " etc., and that only a small amount of them was bought 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 jury were properly instructed to find that the debt was not made by the wife, either for her necessary personal expenses or for the support of the family.

3. Where an instrument executed by the wife with the written consent of her husband does not specifically charge her separate estate, it is necessary to show such a consideration inuring to her benefit, or the benefit of her estate, as will necessarily imply such a charge.

4. As the writing could not charge her separate estate, it was harmless error to charge that it was not given with the consent of the husband.

5. Though the bond was executed by the wife with the consent of her husband, and for the benefit of her separate estate, it could not charge her real estate, as a married woman can charge her real estate only by deed and a privy examination, as in the case of a conveyance.

6. Had plaintiff shown that the consideration inured to the wife's benefit, or that of her estate, the debt could not in this action have been charged; on her personal property, as the complaint failed to allege that she had any property, except certain real property.

This was a civil action tried before ARM-field, 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: "On or before the first day of April, 1887, we, or either of us, promise to pay G. C. Farthing $1,340.00, with interest from date, at the rate of eight per cent, until paid. Joe H. Shields. [Seal.] Franchan Shields. [Seal.] Witness: Robert Mc-Cauly. July 13th, 1886." The court rendered a judgment against, the defendant Joe H. Shields, but refused a judgment as to the feme 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: "(1) Was the debt made by the wife for her necessary personal expenses? (2) Was the debt made for the support of the family of the wife? (3) Did the wife contract the debt with the written consent of her husband? (4) Was it the intention of the wife in contracting the debt to charge her separateestate? (5) Was there fraud on the part of the plaintiff, or a mutual mistake of plaintiff and defendant, in making the bond sued on? (6) How much is due upon the bond sued on from Joseph Shields? (7) How much is dueup-on the bond sued on from Franchan Shields? " 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 mortgageto 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 on 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 except, ed 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...