Joiner v. Firemen's Ins. Co., 59

• Decision Date: 03 February 1934
• Docket Number: 60.,No. 59,59
• Citation: 6 F. Supp. 103
• Court: U.S. District Court — Middle District of North Carolina
• Parties: JOINER v. FIREMEN'S INS. CO. OF NEWARK, N. J., et al.

6 F. Supp. 103

JOINER v. FIREMEN'S INS. CO. OF NEWARK, N. J., et al.

Nos. 59, 60.

District Court, M. D. North Carolina.

February 3, 1934.

Clifford Frazier, of Greensboro, N. C., John T. Brittain, of Asheboro, N. C., and Leland Stanford, of High Point, N. C., for plaintiff.

Julius C. Smith (of Smith, Wharton & Hudgins), of Greensboro, N. C., for defendants.

HAYES, District Judge.

The defendants deny liability under fire insurance policies on the dwelling because the insured was not the sole and unconditional owner in fee, for that an interest in the property was purportedly conveyed to him by a married woman without the joinder of her husband in the body of the deed. Questions as to validity of deeds are determined by the laws of the state where the land lies. Haas v. Rendleman (C. C. A. 4th) 62 F. (2d) 701.

The Constitution of North Carolina, art. 10, § 6, provides that the wife may convey her realty "with the written assent of her husband * * * as if she were unmarried." C. S. N. C. § 2506, makes her property sole and separate with power to devise and bequeath, and, with the written assent of her husband, conveyed by her as if she were unmarried. C. S. N. C. § 2507, known as Martin Act of 1911, gives her the capacity to contract as if she were unmarried. And she is now liable as if she were unmarried on her contracts to convey land, though the contract to convey is without the written assent of her husband. Everett v. Ballard, 174 N. C. 16, 93 S. E. 385.

C. S. N. C. § 997, requires every conveyance affecting the title to real estate of a married woman to be executed by her and her husband, "and due proof or acknowledgment thereof must be made as to the husband and due acknowledgment thereof must be made by the wife, and her private examination, touching her voluntary assent to such instrument, shall be taken separate and apart from her husband. * * * Any conveyance * * * or contract to convey executed by any married woman in the manner by this chapter provided, and executed by her husband also, shall be valid," etc.

It is necessary that a wife's deed be signed by the husband and acknowledged by both husband and wife. Hensley v. Blankinship, 174 N. C. 759, 94 S. E. 519. It was said in Stallings v. Walker, 176 N. C. 321, 324, 97 S. E. 25, his assent must be in writing, but it need not be by deed, as he has nothing to convey, his joining with her is sufficient, but the point was not presented and the language is dictum. The decisions of this state clearly indicate that it is necessary for the husband to sign and acknowledge his wife's deed before delivery before it is valid. Hensley v. Blankinship, supra; Ferguson v. Kinsland, 93 N. C. 337; Jackson v. Beard, 162 N. C. 109, 78 S. E. 6; Warren v. Dail, 170 N. C. 406, 87 S. E. 126; and Graves v. Johnson, 172 N. C. 178, 90 S. E. 113. In Gray v. Mathis, 52 N. C. 503, it was held that a deed by a married woman to her separate estate which was signed by the husband under the wife's name, but his name not appearing in the body of the deed, was void, but this decision antedated the Constitution of 1868 giving the wife the right to convey her real estate with the written assent of her husband, and at a time when married women labored under many legal handicaps, most of which have been abrogated by statute, Stallings v. Walker, supra, and the Mathis Case is not decisive of the facts here involved.

Since the husband has no estate in his wife's land and merely holds a "veto" over her conveyances, is her deed which he signs under her name and under seal, which he, as a grantor, acknowledges the due execution of, a sufficient written assent to meet the requirements of the Constitution and of the North Carolina statute? I think so. The purpose of requiring the written assent is to afford the wife the counsel and protection of her husband, and not to convey any estate in the realty. When he signs it under her signature and then acknowledges the execution of the deed as one of the grantors, but one inference can arise, and that is that he was giving his required written assent to her conveyance.

In Yates v. Insurance Company, 173 N. C. 473, 477, 92 S. E. 356, the names of the grantors did not appear in the body of the deed, but they signed it, and acknowledged it before an officer. The court held that it was a valid deed of conveyance. Berry v. Cedar Works, 184 N. C. 187, 192, 113 S. E. 772, 775, approves the following principle: "We concede all that is contended for as to the common-law rule of construction, and that it has been followed in this state. But this doctrine, which regarded the granting clause and the habendum and...