Wallin v. Rice
| Decision Date | 15 December 1915 |
| Docket Number | 548. |
| Citation | 87 S.E. 239,170 N.C. 417 |
| Parties | WALLIN ET AL. v. RICE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Madison County; Long, Judge.
Action by Jack Wallin and others against Jonah Rice. Judgment for plaintiffs, and defendant appeals. No error.
Covenant of warranty in married woman's void deed, held not to estop her heirs from claiming by descent as against grantees under the deed.
P. A McElroy and C. B. Marshburn, both of Marshall, and Mark W Brown, of Asheville, for appellant.
Guy V Roberts and E. Z. Ray, both of Marshall, and Martin, Rollins & Wright, of Asheville, for appellees.
Plaintiffs are six of the heirs at law of Emily A. Rice, wife of defendant, who died without issue April 8, 1915. On May 3, 1913, she executed a deed in fee to defendant, describing the land in controversy for the recited consideration of $1,000, containing full covenants of warranty. This deed was not executed in accordance with section 2107 of the Revisal, in that the justice of the peace did not find and certify in his certificate of probate that at the time of her privy examination the contract or deed was not unreasonable or injurious to her. The failure to observe the requirements of the statute makes the deed absolutely void. Singleton v. Cherry, 168 N.C. 404, 84 S.E. 698; Butler v. Butler (this term) 86 S.E. 507.
The position that plaintiffs are estopped from claiming the land by the covenant of warranty in the deed is untenable. If the deed is void for noncompliance with the statute, the covenant of warranty is likewise void as it is a contract between husband and wife materially affecting her estate.
Where the deed is void the mere fact that it contains a covenant of warranty will not make it operative by way of estoppel, for, to make a warranty binding, there must be some estate conveyed to which the warranty may be annexed. A deed void as being given in contravention of a statute works no estoppel. Thus a married woman will not be estopped by a deed not executed in the mode provided by statute. Green v. Branton, 16 N.C. 504; Smith v. Ingram, 130 N.C. 106, 40 S.E. 984, 61 L. R. A. 878; Scott v. Battle, 85 N.C. 184, 39 Am. Rep. 694.
As the contract is void, the defendant cannot recover damages from his wife's estate for its breach, and that is especially true in this case, as the jury have found that defendant paid no consideration for the land.
No error.
This is a case of peculiar hardship. The defendant and his wife lived together for 16 years on the tract of land in controversy. She was an invalid much of the time and he was barely able to make a living out of the land for himself and wife. Anticipating her death, she procured a magistrate to draw a deed from her for the land to her husband and duly executed the same, the justice taking her privy examination and telling her that it was all right. Since her death her brothers have brought this action to take the land away from her husband.
The jury found that there was no fraud on the part of the husband, and that the conveyance by the wife to the husband was not injurious to her nor unreasonable. Moreover the deed contains full covenants of warranty and was executed May 5, 1913, more than two years after the Martin Act (chapter 109, Laws 1911), which gives to all wives full right to make contracts affecting their real or personal property. Warren v. Dail (at this term) 87 S.E. 126. It is true that act excepts contracts under Rev. § 2107. Butler v. Butler (at this term) 86 S.E. 507. That presents the question whether section 2107 is constitutional if the court extends it to conveyances.
The Constitution of 1868 made a complete change in the status of married women as to their property rights. It provided (article 10, § 6) that:
"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 estate and property of such female," that it should not be liable for the debts of her husband (as formerly), and "may be devised and bequeathed, and with the written assent of her husband conveyed by her as if she were unmarried."
It will be seen by this reference to the organic law that absolute control of their property in every respect was guaranteed to all wives, save the single one that in the conveyances of her realty the written assent of her husband was required. The addition of the further requirement that the privy examination of the wife must be taken to deeds, and that in conveyances to her husband there must be the approval of some justice of the peace, are in open violation of the constitutional provision which gave wives the right to convey with "the written assent of the husband."
There is no justification or authority for this addition to the Constitution by legislative enactment or judicial construction. In England neither of these requirements obtains. In only four other states of the American Union,...
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