Smith v. King

• Decision Date: 07 November 1890
• Parties: SMITH v. KING et al.
• Court: North Carolina Supreme Court

12 S.E. 57

107 N.C. 273

SMITH v. KING et al.

Supreme Court of North Carolina

November 7, 1890

Appeal from superior court, Guilford county; R. F. ARMFIELD, Judge.

Action by S.W. H. Smith against R. R. King and Mary A. M. Smith for the rescission and cancellation of a deed of separation executed by plaintiff and his wife, said Mary A. M. Smith conveying certain premises to said King as trustee to secure the payment by plaintiff to his wife of an annuity during her life. Judgment for plaintiff, and defendants appeal.

John A Barringer and J. N. Staples, for plaintiff.

Dillard & Scott, for defendants.

CLARK J.

On grounds of public policy deeds of separation between husband and wife were held invalid in this state. Collins v Collins, Phil. Eq. 153. There has been no statute since legalizing such deeds, but they seem incidentally to be recognized as valid by section 1831 of the Code. SMITH, C.J. in Sparks v. Sparks, 94 N.C. 527, intimates that this section, to some extent at least, renders valid articles of separation. But it is not necessary that we pass upon this question, for, conceding for the argument that such deeds, in proper cases will be upheld, we concur with his honor below that, it being admitted that "at the commencement of this action the wife was, and had been for twelve months next preceding said term, living and cohabiting with the plaintiff as his wife," the deed of separation became void and of no effect. It was alleged in the complaint and admitted on the trial, as stated in the case on appeal, that notwithstanding the consideration expressed on its face, the deed in fact and in truth was executed in consideration of the perpetual separation and living apart of the husband and wife, and to maintain the wife in such state while deprived of the support of her husband. When she returns to his roof, cohabits with him, and is supported by him, this annuls all agreement for a separation and for the support rendered necessary thereby. Adams, Eq. 45; Shelf. Mar. & Div. 629; 2 Rob. Husb. & Wife, 316; Shelthar v. Gregory, 2 Wend. 422. The law, if it recognizes, does not favor, articles of separation, and will not so construe them as to be valid after the parties have themselves canceled the agreement to separate by cohabiting together, unless it appear in the deed plainly that such separate support is to be continued, notwithstanding any future reconciliation and cohabitation. This was so considered by Lord ELDON in Lord St. John v. Lady St. John, 11 Ves. 537, and by BULLER, J., in Fletcher v. Fletcher, 2 Cox, 99.

The court properly ordered the deed to be canceled. There is no express provision of the statute that in such cases an entry referring to the judgment of cancellation shall be made on the margin of the registration of the deed. It is good practice, and to be commended. Inasmuch, however, as the court below did not adjudge the original deed void in its inception, but to have become so by matters subsequent, the...