Finger v. Hunter Et Ux

• Decision Date: 13 June 1902
• Citation: 130 N.C. 528,41 S.E. 890
• Court: North Carolina Supreme Court
• Parties: FINGER et al. v. HUNTER et ux.

41 S.E. 890

130 N.C. 528

FINGER et al.

v.HUNTER et ux.

Supreme Court of North Carolina.

June 13, 1902.

MATERIAL MEN'S LIENS—LIABILITY OP MARRIED WOMEN—JUSTICE OF THE PEACE—JURISDICTION.

1. Laws 1901, c. 617, making married women subject to Code, § 1781, which authorizes material men's liens, is not in violation of Const, art. 10, § 6, providing that a married woman cannot convey her property without the consent of her husband, as permitting her to do indirectly what she cannot do directly. The limitation on her right to contract, given by Code, §§ 1826, 1827, and other sections, is amended by such statute.

2. A married woman, whose property is expressly made subject to material men's liens by Laws 1901, c. 617, may be proceeded against in justice court to enforce such a lien, when for less than $200.

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

Proceeding to enforce a material men's lien by Finger & Pickens against H. L. Hunter and wife. From a judgment for defendants, the plaintiffs appeal. Reversed.

Clarkson & Duls and Plummer Stewart, for appellants.

McCall & Nixon, for appellees.

CLARK, J. The feme defendant, a married woman, bought of plaintiffs certain locks, hinges, and sash cords for the improvement of her house. They were so used, and a lien therefor was regularly filed against her said house and lot, and this action is brought against her (her husband being joined) for enforcement of the same. The sole question raised is whether the general assembly had the power under the constitution to enact chapter 617, Laws 1901. That statute reads as follows: "Section 1781 of the Code of North Carolina is amended by adding to said section the following: And this section shall apply to the property of married women, when it shall appear that such building or buildings were built or repaired on her land, with her consent or procurement, and in such case she shall be deemed to have contracted for such improvements." The constitution (article 10, § 6) provides that a married woman shall retain the same rights over her property as if she were unmarried, the only restriction being that she cannot "convey" without the written assent of her husband. The restraints upon her power to "contract" rest upon the statute, not upon the constitution, and, of course, can be removed by statute. There is no prohibition upon the legislature to do so; and, indeed, the court in many instances has indicated to the legislature that justice might be facilitated by more liberal legislation in that regard. In Weir v. Page, 109 N. C. 220, 13 S. E. 773, where the work was done on the wife's house, the contract being made by her husband without her authority, but she saw the work done without objection, and appropriated the increased value, the court said that in justice she ought to be made to pay, but for the statute. The court (Davis, J.) added that, a married woman "having in relation to her separate estate all the rights of a feme sole, whether and to what extent her protecting disabilities ought to be removed and her liabilities in dealing with her separate estate as to all persons other than her husband made commensurate with her rights, and whether such alterations in the law would not prevent much injustice and many frauds, are questions to be addressed to the wise consideration and sound discretion of the lawmaking power." In Pippen v. Wesson, 74 N. C. 445, it is said: "The legislature may abolish all the incapacities of married women, and give them full power to contract as femes sole." This Is cited with approval in Bank v. Howell, 118 N. C. 273, 23 S. E 1005, where the court sets out in full the brief New York statute which confers upon married women the unrestricted power to contract, and broadly intimates to the general assembly that the passage of a similar statute here "might cure many abuses which now exist, and would be more in accord with the liberal intent of the constitutional...