Kirby v. Boyette

• Decision Date: 07 May 1895
• Court: North Carolina Supreme Court
• Parties: KIRBY. v. BOYETTE et al.

21 S.E. 697

116 N.C. 165

KIRBY.

v.BOYETTE et al.

Supreme Court of North Carolina.

May 7, 1895.

Trust for Married Woman—Power of Disposition.

Where land is deeded to one on the express trust that he hold it for a married woman as a feme sole, free from any debts of her husband, she cannot, in the absence of express power in the deed, convey it without the joinder of the trustee; at least, where it was deeded to the trustee prior to the adoption of Const. 1868, art. 10, providing that the separate property of a married woman may, with the assent of her husband, be conveyed by her as if she were unmarried, as, even if that presents the imposition of restrictions, in a deed of trust for a married woman, on her power of alienation, it does not affect a prior trust.

Appeal from superior court, Wilson county; Hoke, Judge.

Action by Henry Kirby against Alexander Boyette and others to foreclose a mortgage. Prom a judgment for plaintiff, defendants appeal. Reversed.

H. G. Connor and E. W. Pou, for appellants.

Shepherd & Busbee, for appellee.

AVERY, J. Isaac Boyette, intending to provide for his son's wife, on the 4th day of May, 1867, conveyed a tract of land to Henry Kirby (to use the language of the instrument itself), "upon the express trust and undertaking, however, that he shall hold the said land and improvements for the sole and separate use of Louisa V. Boyette, a married woman, and her heirs, as a feme sole, free from any debts or contracts of her present husband or any future husband she may hereafter marry." On the 8th day of December, 1880, the cestui que trust, Louisa, and her husband, executed, with privy examination and all of the usual legal formalities, a deed conveying the same land to Rountree, Barnes & Co. to secure the payment of the note of the husband, Nathan Boyette, for $702.84, and advances for agricultural purposes made to him. The trustee, Henry Kirby, did not join in the mortgagee deed to Rountree, Barnes & Co., but has since become, by assignment, the owner of the note, and has brought an action against the heirs of Louisa, the cestui que trust, who are her children by the marriage with Nathan Boyette, to foreclose for default in the payment of the said note of Nathan, whose administrator is also a party defendant. The question presented is whether the deed of husband and wife without the joinder of the trustee passed the wife's interest.

It is settled by repeated rulings of this court that the power of a married woman to dispose of land held by 'her under a deed of settlement is "not absolute, but limited to the mode and manner pointed out in the instrument." She "is to be deemed a feme sole only to the extent of the power expressly given her in the deed of settlement." Hardy v. Holly, 84 N. C. 668; Kemp v. Kemp, 85 N. C. 496; Mayo v. Farrar, 112 N. C. 68, 16 S. E. 910; Monroe v. Trenholm, 112 N. C. 634, 17 S. E. 439; Broughton v. Lane, 113 N. C. 161, 18 S. E. 85. This court has acted upon the theory that the wife derives her power of disposition of the property solely from a strict construction of the permissive provisions of the instrument creating the estate. Mayo v. Farrar. supra; 3 Pom. Eq. Jur. § 1105. It is apparent that it was the intention of the grantor that the trustee should hold the land for the sole and separate use of the married woman, and that it should be as free from liability for any debt or contract of the husband as it would have been had she been a feme sole. In the case at bar the trustee, claiming in his individual right by assignment, seeks to subject the land by foreclosure of a deed which was executed without his assent, signified by joining as a grantor. It is manifest that, if the court should lend its sanction to the validity of this conveyance, the result would be, not only to subject the land to the payment of the husband's debt, contrary to the express intent of the grantor in the deed of assignment, but without the assent of, and at the instance of, ...