Sprinkle v. Ponder
| Decision Date | 21 March 1951 |
| Docket Number | No. 99,99 |
| Citation | 64 S.E.2d 171,233 N.C. 312 |
| Parties | SPRINKLE, v. PONDER. |
| Court | North Carolina Supreme Court |
Carl R. Stuart, Marshall, and Smathers & Meekins, Asheville, for plaintiff, appellant.
Don C. Young, Asheville, for defendant, appellee.
At the time of the marriage between the plaintiff and Macie Black Sprinkle in 1927, she was living with her two daughters, Pearl (who is the defendant, Pearl Black Ponder) and Alice (now Alice Bradley) in the home of her aunt Nan Black, referred to throughout the trial as Aunt Nan, on the aunt's farm located on the New Stock Road near Weaverville in Buncombe County. The plaintiff, W. D. Sprinkle, 'was batching' on his 75-acre farm across the road from Aunt Nan's place. After the marriage, he moved in with the family at Aunt Nan's home, and stayed there two or three years. During this period he sold his farm across the road and, with a view of moving his residence, erected a dwelling and made other improvements on another place owned by him on Flat Creek about three miles from Aunt Nan's place.
In 1929 the daughter Alice married Alfred Bradley, and soon thereafter the plaintiff and his wife left Aunt Nan's place and moved to the new house which had been erected by the plaintiff on his Flat Creek farm. Along with them went Mrs. Sprinkle's daughter Pearl. Aunt Nan died in 1935, leaving her place to plaintiff's wife. On 24 October, 1945, the plaintiff executed and delivered to his wife a deed for a onehalf undivided interest in his Flat Creek place, and thereafter she retained possession of the deed at all times until her death on 9 May, 1948. However, the deed was not registered until 22 June, 1949. No child was born of the marriage between the plaintiff and Macie Black Sprinkle. She died intestate, being survived by her two children, Pearl and Alice, her only heirs-at-law.
Plaintiff alleges in his complaint that the original deed to his wife for a one-half undivided interest in the Flat Creek farm was 'a deed of gift, without consideration, moving from the grantee to the grantor,' and not having been registered within two years after 'the making thereof' is void under the statute, G.S. § 47-26, and that the defendant's claim to a one-fourth interest in the land is a cloud on his title and should be removed.
The defendant filed answer denying that the deed was a deed of gift. She affirmatively alleges by way of further defense that her mother assisted plaintiff in the construction of the home and other buildings on the Flat Creek place; that she helped him work on the buildings and also put therein 'all of the income received from her individual property' * * * under a special contract that the plaintiff would recompense her by conveying to her a one-half interest in the Flat Creek farm.
The plaintiff rested his case after offering testimony tending to show admissions made by Mrs. Sprinkle to the effect that the deed to her was a deed of gift without valuable consideration. The defendant did not move for nonsuit, but assumed the burden of going forward with her affirmative defense that the deed was made to her mother in fulfillment of a special contract as alleged.
The defendant offered in evidence, over objections of the plaintiff, the following testimony of her sister, Alice Bradley, concerning a conversation which the witness said she heard between the plaintiff and her mother before they moved to Flat Creek:
'Objection--overruled--exception.
'Motion to strike out the answer.
'Objection--overruled--exception.
'
'Objection by plaintiff to this testimony.
'Objection--overruled--exception.
'Objection--overruled--exception.
'Objection--overruled--exception.
'Objection--overruled--exception.
'Motion to strike; denied; exception.'
The plaintiff does not challenge the form of the foregoing testimony. Hence we pass the question of whether some of the answers amount to conclusions of the witness tending to invade the province of the jury. First, the plaintiff contends that the testimony should have been excluded as coming from 'an interested witness' under the 'dead man' statute, G.S. § 8-51. This contention, however, cannot be sustained. Here, the defendant's witness was testifying for, rather than against, the 'person deriving * * * title or interest from, through or under a deceased person'. Such testimony does not come within the inhibitions of the statute. Bonner v. Stotesbury, 139 N.C. 3, 51 S.E. 781. Evidence of this kind simply 'opens the door' and permits the other party,--the living party to the transaction or communication,--to go upon the stand, if he so desires, and give his version of what transpired. Batten v. Aycock, 224 N.C. 225, 29 S.E.2d 739; Lewis v. Mitchell, 200 N.C. 652, 158 S.E. 183; Herring v. Ipock, 187 N.C. 459, 121 S.E. 758; Sumner v. Chandler, 92 N.C. 634. The plaintiff also contends that the foregoing testimony of Alice Bradley, tending to set up a parol contract to convey land, should have been excluded under the statute of frauds, G.S. § 22-2, raised by the plaintiff's general denial of the contract, Henry v. Hilliard, 155 N.C. 372, 71 S.E. 439, 49 L.R.A.,N.S., 1. This contention, likewise, is untenable for the reason that here the contract, if such there was, had been executed, and the statute of frauds does not apply to executed contracts; it can be invoked only to prevent the enforcement of executory contracts. McManus v. Tarleton, 126 N.C. 790, 36 S.E. 338; Hall v. Fisher, 126 N.C. 205, 35 S.E. 425; Keith v. Kennedy, 194 N.C. 784, 140 S.E. 721; Davis v. Harris, 178 N.C. 24, 100 S.E. 111.
However, further analysis of the testimony of Alice Bradley indicates that it tends to establish between plaintiff and his wife two separate contractual obligations to be performed by the wife as the consideration supporting the deed later made to her, namely: (1) that she forego her desire to remain in the home of her Aunt Nan Black and go live with her husband at his new home on Flat Creek, and (2) that she help him work on and build the house and barns and other buildings on the Flat Creek place and contribute to the costs thereof from her separate estate.
As to the first contractual provision,--the one under which the wife promised to go live with the husband at his new home,--it is fixed law that any such contract, attempting to make an ordinary marital duty the subject of commerce, is void as against public policy. The 'authority of the husband as the head of the family gives him the right, acting reasonably, to * * * determine where * * * the home of the family shall be, and thus to establish the matrimonial and family domicile.' 26 Am.Jur., Husband and Wife, § 10, p. 638, et seq. As long as the husband exercises this choice in a reasonable manner, consistent with the comfort, welfare and safety of his wife, it would seem to be the wife's marital duty to go with the husband to the home of his choice, 41 C.J.S., Husband and Wife, § 10, p. 399, and this being so, the law will not permit, as a matter of sound public policy, any such marital duty to be made the subject of 'barter and sale,' and a contract based thereon is a nullity, without consideration. See Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414, 26 Am.Jur., Husband and Wife, § 326, p. 923, et seq. In the trial below, there was no evidence tending to show that the plaintiff acted unreasonably in choosing the Flat Creek farm as a family home, nor does it appear that the home there provided for the family was inimical to the health, welfare and safety of the wife. Therefore, any agreement of the wife to accompany the plaintiff to the Flat Creek place, and her act in doing so, furnished no supporting consideration for the deed he made to her fourteen or fifteen years later. It follows that the evidence in respect to such contract admitted over plaintiff's objection, should have been excluded.
As to the second contractual provision set up by the testimony of Alice Bradley,--the provision under which the plaintiff's wife is alleged to have obligated to help him work on and build the home and other buildings and contribute from her separate estate to the costs of erection,--it is enough to say that ordinarily the performance by a married woman of any such contract, calling for contributions from her separate estate and requiring the performance of work above and beyond the pale of her ordinary household and domestic duties, is deemed to be supported by a valuable consideration and is valid and enforceable. Ritchie v. White, supra, 225 N.C. 450, p. 455, 35 S.E.2d 414; Dorsett v. Dorsett, 183 N.C. 354, 111 S.E. 541, 23 A.L.R. 15. However, in the instant case an analysis of the record discloses no testimony tending to show performance of...
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