Stout,v,. Perry Et Al.
| Decision Date | 06 April 1910 |
| Citation | 67 S.E. 757,152 n.c. 312 |
| Parties | STOUT v . PERRY et al. |
| Court | North Carolina Supreme Court |
A wife may appoint her husband as her agent.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 148-154; Dec. Dig. § 25.*]
Revisal 1905, § 2107, provides that no contract between a husband and wife shall be valid to charge her real estate for longer than three years next ensuing, or to charge the capital of her personal estate or income for longer than the same time, unless in writing as required for conveyances of land, etc. Held, that the contracts referred to were contracts made between them by which she conveys, or charges, any part of her estate to his benefit, and that its purpose was to prevent frauds by him on her. and, if executed with the prescribed formality, to validate such transactions between them invalid at common law.
'Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 37.*]
To pay antenuptial debts for which a wife is made liable by Revisal 1905, § 2101, and to discharge her moral duty to support an aged and invalid parent, she may appoint her husband as agent, and supply him with the means.
TEd. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 148-154; Dec. Dig. § 25.*]
The wife in appointing her husband or another as agent is not required to use any different formality than a person sui juris.
TEd. Note.—For other cases, see Husband and Wife, Dec. Dig. § 58.*]
Where a wife appointed her husband to collect notes given on a sale of her land, and directed him how to disburse the proceeds, the burden is cast on his administrators sued for the amount collected to prove that he disbursed the proceeds as directed by her.
[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 232.*]
Appeal from Superior Court, Chatham County; W. J. Adams, Judge.
Action by A. M. Stout, administrator of Mrs. Susan Johnson, deceased, against Ostia Perry and another, administrators of Joshua Johnson, deceased. From a judgment for plaintiff, defendants appeal. New trial.
The plaintiff is the administrator of Mrs. Susan Johnson. The defendants are the administrators of Joshua Johnson. Joshua Johnson and Susan Johnson were husband and wife. The former died October 10, 190G, the latter July 13, 1907. They were married June 27, 1877. On July 26, 1878, the husband and wife executed their agreement to convey a tract of land belonging to the wife to E. E. Dismukes for $900, of which $250 was paid in cash, and the balance evidenced by six notes, the first for $100, due one year after date, and the others for $110 each, one due each year thereafter. On February 3, 1885, the notes having been paid, the deed was executed. J. E. Perry was the draughtsman of the agreement to convey and of the notes, which were made payable to Joshua Johnson, the husband. The defendant proposed to show by Perry that at the time the notes were drawn by him and executed by Dismukes Mrs. Johnson directed that they be made payable to her husband; that she owed antenuptial debts, which she desired to be paid; that she directed her husband to collect the notes, as they fell due, pay her debts, and use a sufficient part of the remainder, if any and if sufficient, to support her mother, who was aged and infirm, and living with Mr. and Mrs. Johnson. This evidence was excluded by his honor upon plaintiff's objection. The defendants excepted. There was a verdict for the plaintiff for $900, and judgment accordingly, from which defendants, having duly excepted, appealed to this court.
Hayes & Bynum, H. A. London & Son, and J. G. Hannah, Jr., for appellants.
R. H. Dixon, W. D. Siler, and N. Y. Gully, for appellee.
The plaintiff contends that the judge's ruling was correct, because the contract between the husband and wife was not executed with the formality required by section 2107, Revisal, and the evidence offered did not so tend to prove, but established that it was not so executed. The defendants contend that the evidence tended to prove that the wife created her husband her agent, that it was not a contract to change or impair the body or capital of the wife's personal estate for the husband's advantage, and was not required to be executed with the formality prescribed by that section of the Revisal. That the husband can be appointed her agent by the wife has been several times decided by this court, and seems not to be controverted by the plaintiff. Bazemore v. Mountain, 121 N. C. 59, 28 S. E. 17; Weathers v. Borders, 121 N. C. 387, 28 S. E. 524; Cunningham v. Cunningham, 121 N. C. 413, 28 S. E. 525; Wltz v. Gray, 116 N. C, 48, 20 S. E. 1019; Faircloth v. Borden, 130 N. C. 263, 41 S. E. 381; Francis v. Reeves, 137 N. C. 269, 49 S. E. 213; Weld v. Shop Co., 147 N. C. 588, 61...
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