George v. High

• Decision Date: 31 October 1881
• Citation: 85 N.C. 99
• Court: North Carolina Supreme Court
• Parties: ANN E. GEORGE v. D. P. HIGH, Adm'r.

85 N.C. 99

ANN E. GEORGE

v.D. P. HIGH, Adm'r.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION, heard on complaint and demurrer at Fall Term, 1880, of COLUMBUS Superior Court, before Avery, J.

The demurrer was sustained and the plaintiff appealed.

Mr. D. J. Devane, for plaintiff .

Messrs. W. H. Pace and J. W. Ellis, for defendant .

RUFFIN, J.

The issue in this case is altogether one of law growing out of the demurrer of the defendant to the complaint.

The complaint alleges that the plaintiff being the wife of the defendant's intestate, at several times advanced and lent to her husband divers sums of money, amounting in the aggregate to some $2,700, no part of which has been paid.

The defendant assigns as grounds for his demurrer:

1. That as it appears on the face of the complaint, the plaintiff was the wife of the defendant's intestate, at the time the alleged advancements were made, and it does not appear that the amounts advanced were to be repaid, or that said intestate accepted the same as a loan and agreed to repay them, or that they were advanced for his benefit, and not the mutual benefit of both husband and wife, and for the support of their family, the action cannot be maintained.

2. That the plaintiff has not the legal capacity to sue the administrator of her intestate husband for money, or on account of business transactions between them during coverture.

3. That the complaint does not state facts sufficient to constitute a cause of action.

Upon the authority of the case of Love v. The Commissioners of Chatham, 64 N. C., 706, we shall have to disregard the defendant's last ground of demurrer, since it fails to specify any particular objection to the complaint.

As to his first ground of objection, it does not seem to us to be true in point of fact. The language of the complaint is that the plaintiff advanced and lent to the defendant's intestate a sum of money, &c., and this in common acceptation is equivalent to saying that he accepted it as a loan under an agreement to repay. Webster defines the verb lend to mean, “to grant a thing to be held on the condition that its equivalent in kind will be returned-- as to lend money.” It must be observed, too, that the demurrer admits the truth of her allegation that she did so advance and lend him the money.

As expressed, we suspect, the second specification goes beyond the real meaning of the draughtsman, as it will hardly be contended, we suppose, that a widow is without all legal capacity to sue the administrator of her deceased husband, on account of any transaction that may occur between them during her coverture. It must therefore have been intended to raise the question as to the plaintiff's capacity, not to sue her husband's administrator, but to make the contract alleged with her husband while living, and which it is the object of her action now to enforce. It was so treated by Mr. Pace in his well considered argument for the defendant, and we will consider it in the same light.

As the effect of the plaintiff's contract with her husband is not to charge, or pervert any part of her real or personal estate, her case does not fall within the act of 1871-2 (Bat. Rev., ch. 69, § 17,) which forbids her entering into any such contract without the written assent of her husband, for as said in Kirkman v. Bank of Greensboro, 77 N. C., 394, that statute, like the constitution, was intended merely to restrict a wife's power to convey or charge her estate, and in no wise to deprive her of the power to receive or acquire property independently of her husband's consent. Her capacity to make such a contract as the one sued on with her husband, depends therefore upon the law as it stood originally or as modified by some statutory provision other than the one just referred to.

At the common law the husband and wife were regarded as so entirely one as to be incapable of either contracting with, or suing one another, but in equity, it was always otherwise, and there, many of their contracts with each other were recognized and enforced. In the case of Dula v. Young, 70 N. C., 450, a contract between husband and wife made in 1842, under which he sold her land and put the proceeds in another tract, promising to take the title to his wife, but instead thereof taking it to himself, was given force and effect after his death, and his administrator was not permitted to sell the same, though urged to do so by creditors. And so in the case of Kee v....