Green v. Bennett

• Decision Date: 30 April 1897
• Citation: 27 S.E. 142,120 N.C. 394
• Court: North Carolina Supreme Court
• Parties: GREEN et al. v. BENNETT et al.

27 S.E. 142

120 N.C. 394

GREEN et al.

v.BENNETT et al.

Supreme Court of North Carolina.

April 30, 1897.

Husband and Wife—Married Woman's Deed— Estoppel by Judgment.

1. No title is conveyed by a married woman's deed of her separate property where her husband's consent thereto, required by Const, art. 10, § 6, was not proved and recorded until after her death.

2. Recitals in a decree for partition that plaintiffs title to certain lands was admitted are conclusive as to such title against the parties and their privies.

Appeal from superior court, Stanly county; Robinson, Judge.

Ejectment by S. D. Green and others against D. N. Bennett and others. Judgment on issues found for plaintiffs by a jury, and defendants appeal. Modified and affirmed.

S. J. Pemberton and MacRae & Day, for appellants.

Brown & Jerome, for appellees.

MONTGOMERY, J. The plaintiffs, who are the heirs at law of Rosana Smith, claim title to and demand the possession of the two tracts of land described in the complaint, one containing three acres, and the other a one-eighth interest in a tract of one acre, and a mineral spring on it The defendant Foreman sets up title to the same through a deed from Rosana Smith to himself, dated February 14, 1881, and the other defendants claim the possession under Foreman. The defendant Foreman also claims title to the one-eighth interest in the one-acre tract by virtue of a decree of the superior court of Stanly county, dated the 17th of November, 1888, in a case entitled "C. C. Foreman vs. Hezekiah Hough and Others." The husband of Mrs. Smith did not sign the deed, nor does his name appear anywhere in it. On the back of the deed, on the day of its execution, the husband, Smith, made an indorsement in the following words: "I, John Smith, husband of R. B. Smith, the maker of the within deed, do hereby consent to the same, "—signed and sealed by John Smith, June 14, 1881, and witnessed by J. P. Austin. The deed was registered on the 21st of September, 1882. The alleged consent of the husband was proved and registered on September 20, 1894, and after the death of the wife, which took place in 1888. His honor refused to allow the deed to be received as evidence of defendants' title and right of possession, and his ruling was correct. In the argument here, the counsel of defendants frankly stated that the ruling of the court below was proper, unless the court should reconsider and reverse its former decisions bearing upon the power given to married women to convey their separate property, under section 6 of article 10 of the constitution, and in the manner prescribed in section 1256 of the Code. It is not necessary to the decision of this case for us to discuss again the effect of the indorsement made by the husband on the deed, —whether that act was sufficient execution of the deed. The constitution (article 10,...