Rodman v. Robinson

• Decision Date: 29 March 1904
• Citation: Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19 (N.C. 1904)
• Parties: RODMAN et al. v. ROBINSON.
• Court: North Carolina Supreme Court

47 S.E. 19

134 N.C. 503

RODMAN et al. v. ROBINSON.

Supreme Court of North Carolina

March 29, 1904

Appeal from Superior Court, Pender County; W. R. Allen, Judge.

Action by J. F. Rodman and others against J. W. S. Robinson for specific performance of a contract to convey land. From a judgment in favor of the plaintiffs, defendant appeals. Affirmed.

Where a contract for the conveyance of land is accepted, an attempted repudiation by the vendor without the consent of the purchaser is of no effect.

J. D Kerr, F. R. Cooper, and Shepherd & Shepherd, for appellant.

Connor & Connor and E. K. Bryan, for appellees.

CLARK C.J.

On Sunday, September 14, 1902, the defendant, who then was and still is the owner in fee and possession of the land described in the complaint, contracted in writing dated September 13, 1902, with plaintiff Rodman to sell him said land, possession to be given the 1st of January, 1903, and deed to be delivered the 1st of April, 1903, at which time the purchase money was to be paid. In December, 1902 defendant informed Rodman that he would not deliver possession nor accept the purchase money, and repudiated the contract. Nevertheless Rodman did tender the $4,200, the agreed price, in money, on 1st of April, 1903, or as soon thereafter as defendant could be found, and demanded the deed, but defendant refused to accept the money or deliver the deed. The contract is admitted in the answer, and judgment for specific performance was rendered upon the pleadings, and defendant appealed.

The first assignment of error is: "Because it appears from the answer that defendant was at the time of signing said alleged contract to convey a married man, and his wife is still living, and entitled to dower and homestead right in said land, and the judgment does not sufficiently guard and protect such right." The wife has an inchoate right of dower, but she has no present right to the property, nor to its possession, nor any dominion over it. She has only a right therein contingent upon surviving her husband, which may not happen. Gatewood v. Tomlinson, 113 N.C. 312 18 S.E. 318. The Code, § 2103, expressly provides that upon the death of the husband the widow shall be entitled to dower. Besides, this is an objection which the plaintiff alone could make. The wife is not a party to this action, and the decree in no wise affects her contingent interest. Having taken the contract without the wife's signature, the plaintiff could not obtain a decree compelling her to join in the deed. Farthing v. Rochelle, 131 N.C. 563, 43 S.E. 1; Fortune v. Watkins, 94 N.C. 304. The Code, § 2106, recognizes the right of the husband to alien without the joinder of the wife, the conveyance having no effect upon the wife's contingent right of dower. Fleming v Graham, 110 N.C. 374, 14 S.E.

922; Scott v. Lane, 109 N.C. 154, 13 S.E. 772; Hughes v. Hodges, 102 N.C. 236, 9 S.E. 437; Mayho v. Cotton, 69 N.C. 289. As to the homestead right, it was not necessary for the wife to join in the contract, because the answer admits that no homestead had been allotted in this land. Mayho v. Cotton, supra, approved in Joyner v. Sugg, 132 N. C., at page 589, 44 S.E. 122. Besides, the answer further admits the solvency of the defendant, that there is no judgment docketed against him, and that he owns other lands more than sufficient in value for the allotment of the homestead. Hughes v. Hodges, supra. The conveyance or contract is valid, subject to the contingent right of dower. Gatewood v. Tomlinson and Scott v. Lane, supra. The wife is not a party to this action, and not estopped by the judgment if the above admissions should prove untrue. The wife not being a party, the exception that her "rights are not protected by the decree" has no place here.

The second assignment of error is: "Because the contract to convey was entered into and signed upon Sunday, and, no consideration being passed, and the defendant having repudiated the contract the week following, said contract is not enforceable, and the judgment should have declared said contract to be void." The promise to pay $4,200 purchase money was a sufficient consideration. Puffer v. Lucas, 101 N. C., at page 284, 7 S.E. 734; Worthy v. Brady, 91 N.C. 265; s. c. 108 N.C. 440, 12 S.E. 1034; Clark on Contracts, pp. 149, 169; 9 Cyc. 323. The contract having been accepted by plaintiff, the attempted repudiation thereof by the defendant without the consent of the plaintiff has no effect. Paddock v. Davenport, 107 N.C. 710, 12 S.E. 464; Ryan v. U. S., 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447. So this exception hinges upon the question whether the contract is invalid because entered into and signed on Sunday. This point has been settled in this state by repeated decisions. A contract entered into on Sunday is not invalid at common law. Clark on Cont. p. 393; Drury v. De Fontaine, 1 Taunton, 131 (in which it was held that a vendor could recover the price of a horse sold on Sunday); Benjamin on Sales, § 552. Our statute--Code, § 3782--is copied almost verbatim from the first part of the statute 29 Car. II, c. 7 (1678). The other part forbidding service of process on Sunday is omitted from our statute, which merely provides that "on the Lord's Day, commonly called Sunday, no tradesman, artificer, planter, laborer or other person shall *** do or exercise any labor, business or work of his ordinary calling *** upon pain that every person so offending *** shall forfeit and pay one dollar." This part was construed by Lord Mansfield in Drury v. De Fontaine, supra, not to invalidate a sale of a horse on Sunday, where the sale was not a part of the vendor's ordinary calling. This statute is the foundation of nearly all the Sunday legislation in this country. It is not alleged in the answer that this contract was made and entered into by either the plaintiff Rodman or the defendant, Robinson, in pursuance by either of his ordinary calling. In Melvin v. Easley, 52 N.C. 356, the court said: "The statute in its operation is confined to manual, visible, or noisy labor, such as is calculated to disturb other people; for example, keeping open shop or working at a blacksmith's anvil. The Legislature has power to prohibit labor of this kind on Sunday on the ground of public decency. *** But when it goes further, and *** prohibits labor which is done in private, the power is exceeded, and the statute is void." In that case it was held that selling a horse on Sunday was not forbidden by the statute, as dealing in horses was not Melvin's "ordinary calling." Again, it is said in State v. Ricketts, 74 N.C. 192: "In this state every act may lawfully be done on Sunday which may lawfully be done on any other day, unless there is some statute forbidding it to be done on that day." This has been cited and approved in White v. Morris, 107 N. C., at page 99, 12 S.E. 80 (in which Davis, J., calls attention to the fact that prior to the Code civil process could not legally be served on Sunday, but now the restriction applies only to forbid arrests in civil actions on that day), approved also in State v. Penley, 107 N.C. 810, 12 S.E. 455; Ashe, J., in State v. McGimsey, 80 N.C. 377, 30 Am. Rep. 90, and State v. Howard, 82 N. C., at page 626; Merrimon, C.J., in State v. Moore, 104 N.C. 749, 10 S.E. 183; Taylor v. Ervin, 119 N.C. 276, 25 S.E. 875--all these last holding that it was not illegal to hold court on Sunday if the judge deemed it necessary, though out of considerations of propriety it ought not to be done unless necessary. In State v. Brooksbank, 28 N.C. 73, Ruffin, C.J., held that it was not indictable to sell goods in open shop on Sunday, and in State v. Williams, 26 N.C. 400, the court, through the same judge, held it not indictable to work on Sunday, it not being indictable either at common law (citing Rex v. Brotherton, 1 Str. 702; Rex v. Cox, Bur. 785) or by our statute, adding (page 400): "It is clear that the making of bargains on Sunday was not a crime against the state, for contracts made on that day are binding. It has often been so ruled in this state, and after elaborate argument and time to advise." Covington v. Threadgill, 88 N.C. 189, is obiter merely, and Waters v. Railroad, 108 N.C. 349, 12 S.E. 950, is a construction of section 1632, Gen. St. S. C. 1882, which is a part of the statute 29 Car. II, which has been omitted in our statute.

Counsel for defendant contend that Christianity is a part of the law of the land, and hence, independent of any statute, the contract is invalid. If the observance of Sunday were commanded by statute as an act of religion or worship, such statute would be absolutely forbidden. The founder of the Christian religion said that his "kingdom was not of this world," and under our Constitutions, both state and federal, no act can be required or forbidden by statute because such act may be in accordance with or against the religious views of any one. The first amendment to the federal Constitution provides, ""Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;" and the Constitution of this state (article 1, § 26) reads: "All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority should in any case whatever control or interfere with the right of conscience." If, therefore, the cessation of labor or the prohibition or performance of any act were provided by statute for religious reasons, the statute could not be maintained. The Seventh Day Baptists, and some others, as well as the Hebrews, keep Saturday, and the Mahommedans observe Friday. To compel them or any one else to observe Sunday for religious reasons would be contrary to our fundamental law. The only...