Perry v. Stancil

• Decision Date: 08 April 1953
• Docket Number: No. 99,99
• Court: North Carolina Supreme Court
• Parties: PERRY et ux. v. STANCIL.

Page 512

75 S.E.2d 512

237 N.C. 442

PERRY et ux. v. STANCIL.

No. 99

Supreme Court of North Carolina.

April 8, 1953

Clarence W. Griffin and Wheeler Martin, Williamston, for plaintiff appellees.

Charles H. Manning, Williamston, for defendant appellant.

BARNHILL, Justice.

The framers of the Constitution of 1868 inserted therein the following provision:

'The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estafe and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed and, with the written assent of her husband, conveyed by her as if she were unmarried.' Constitution of 1868, Art. X, sec. 6.

The controversy between the parties to this action arises out of conflicting contentions respecting the meaning of that part of this section of the Constitution which permits a married woman 'with the written assent of her husband' to convey her real property 'as if she were unmarried' and presents this question for decision: Does this limitation upon the right of a married woman to convey real property apply to a deed from a wife to her husband; in other words, is a deed executed by a married woman without the written assent of her husband, conveying real property which is a part of her separate estate, to her husband void for want of his written assent?

Defendants argue that this limitation upon the right of a married woman to convey her property is simply expressed in clear and unambiguous language; that it does not contain any exception or any language susceptible of the interpretation that an exception was intended or that it is less comprehensive in scope than it, upon its face, appears to be. They stressfully contend, therefore, that there is no room for construction and no justiciable question is presented.

But 'few words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension.' Crawford, Stat.Constr. 276, § 174; Watson Industries v. Shaw, Com'r of Revenue, 235 N.C. 203, 69 S.E.2d 505; 'An inhibition or prohibition usually extends no farther than the reason on which it is founded. Cessante ratione, cessat ipsa lex.' In re Yelton: Advisory Opinion, 223 N.C. 845, 28 S.E.2d 567, 571.

We must, therefore, examine the language used in the light of well recognized and established canons of judicial construction to ascertain whether it is less comprehensive in meaning and effect than it appears to be.

Questions of constitutional construction are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments, 11 A.J. 658, and 'the fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it', 11 A.J. 674. The heart of the law is the intention of the lawmaking body. Branch Banking & Trust Co. v. Hood, Com'r of Banks, 206 N.C. 268, 173 S.E. 601; Atlas Supply Co. v. Maxwell, Com'r of Revenue, 212 N.C. 624, 194 S.E. 117; State v. Emery, 224 N.C. 581, 31 S.E.2d 858, 157 A.L.R. 441. And in arriving at the intent, we are not required to accord the language used an unnecessarily literal meaning. Greater regard is to be given to the dominant purpose than to the use of any particular words, Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578, for 'the letter of the law is its body; the spirit, its soul; and the construction of the former should never be so rigid and technical as to destroy the latter.' Champion Shoe Machinery Co. v. Sellers, 197 N.C. 30, 147 S.E. 674, 675; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Opinions of the Justices, 204 N.C. 806, 172 S.E. 474, 'The letter killeth, but the spirit giveth life.'

Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption. To ascertain the intent of those by whom the language was used, we must consider the conditions as they then existed and the purpose sought to be accomplished. Inquiry should be directed to the old law, the mischief, and the remedy. The court should place itself as nearly as possible in the position of the men who framed the instrument. 11 A.J. 675; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849.

A court should look to the history, general spirit of the times, and the prior and the then existing law in respect of the subject matter of the constitutional provision under consideration, to determine the extent and nature of the remedy sought to be provided. 11 A.J. 676; State of Missouri v. State of Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497; Maynard v. Board of Canvassers, 84 Mich. 228, 47 N.W. 756, 11 L.R.A. 332; State v. Kees, 92 W.Va. 277, 114 S.E. 617, 27 A.L.R. 681.

Applying these general principles here, it is apparent that to determine the nature and extent of the remedy the framers of the Constitution sought to provide in adopting Art. X, sec. 6, of the Constitution, we must examine briefly the history of the law respecting the rights of amarried woman and the prior concept of her capacity to transact business relating to her separate estate. Only thus may we ascertain the intent and purpose of the section. It was intended to remedy some prevailing condition or protect some existing right. What that condition or right was depends upon the then status of a married woman respecting her separate estate, and the prevailing concept of the people as to her capacity to engage in business transactions with particular respect to her capacity to convey real property.

At common law the personal property of woman, upon her marriage, vested absolutely in the husband. O'Connor v. Harris, 81 N.C. 279; Arrington v. Yarbrough 54 N.C. 72. Likewise, upon marriage, the husband at once became seized of an estate in the land of his wife during coverture which gave him the right of possession and control. He could appropriate all the rents and profits to his own use and could sell and convey the land for a period not exceeding the coverture. Upon the birth of issue capable of inheriting the wife's land, his estate was enlarged so that he immediately became the owner for the period of his natural life and he could convey his life estate therein without the joinder of his wife. Taylor v. Taylor, 112 N.C. 134, 16 S.E. 1019; Richardson v. Richardson, 150 N.C. 549, 64 S.E. 510. The personal estate of the wife as well as his interest in her real property was subject to levy under execution to satisfy his debts. 1 Mordecai's Law Lectures, 2d. ed., 291; Annotation 133 A.L.R. 634-635.

On the other hand, while the wife retained the fee, she could not convey it during coverture even with the husband's consent, except by a fine. 1 mordecai's Law Lectures, 2d ed ., 291; 1 Powell on Real Property, 430; 3 Vernier, Amer. Family Laws, 293. And a deed from the wife to the husband was void. Sims v. Ray, 96 N.C. 87, 2 S.E. 443; Sydnor v. Boyd, 119 N.C. 481, 26 S.E. 92, 37 L.R.A. 734. The fiction of the unity of husband and wife rendered all contracts between them a nullity. Furthermore, the people of that day entertained the fiction that the husband was the dominant member of the household and any transaction betwwen the two affecting her property was had at his dictation, and the law presumed that contracts between them affecting her real estate were executed under his coercive influence. Consequently, any instrument executed by her was without force or effect.

In the early days of our history these common law rules prevailed in North Carolina. However, as our civilization has progressed, the limitations thus placed upon the property rights of a married woman have been gradually but surely removed. Houston v. Brown, 52 N.C. 161; Wilson v. Arentz, 70 N.C. 670; Morris v. Morris, 94 N.C. 613.

In 1837 the General Assembly adopted enabling statutes which modified the common law rules in three respects:

(1) It provided that a conveyance of the land of the wife should be jointly executed and acknowledged by the husband and wife, and the wife should be privily examined as to her voluntary assent thereto, and that such conveyances should be 'valid in law' to convey her interest in the land therein described 'whether in fee simple, right of dower or other estate, as if done by fine and recovery, or any other means or ways whatsoever.' 1 Rev.Stat. 1836-7, ch. 37, § 9; Rev.Code 1854, ch. 37, § 8.

(2) It vested the wife with the right to have and retain property acquired by her after the rendition of a decree of divorce a mensa, and provided that said property 'shall not be liable to the power, dominion, control, or debts of her husband * * *.' Rev.Stat., ch. 39, § 11; Rev.Code 1854, ch. 39, § 13. This section likewise vested her with the...